Just as federal courts blocked former President Joe Biden’s abuse of the Clean Air Act to shut down coal power plants, and just as they blocked Biden’s attempt to erase hundreds of billions of dollars in college debt using the 2003 Higher Education Relief Opportunities for Students Act, so now the Court of International Trade has rightly thwarted overreach by President Donald Trump. It ruled on May 28 that Trump abused his authority under the International Emergency Economic Powers Act when he issued broad tariffs that he admitted were designed to be the “biggest reorganization of the global economy since World War II.”
Trump will fight this ruling up to the Supreme Court, but he will lose, and it will be a victory for the Constitution, the public, and the separation of powers.
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Article 1, Section 8 of the Constitution grants Congress, not the president, the exclusive power to “lay and collect Taxes, Duties, Imposts and Excises” and to “regulate Commerce with foreign Nations.”
From the first Congress onward, the Supreme Court has allowed Congress to delegate powers to the president, but these must be limited in scope and have an “intelligible principle” that courts can review. For example, the first Congress empowered the president to create a postal route through the United States and allowed the president to decide where the roads should be built and which towns they would run through. Those decisions were deemed delegated to the executive.
In the current case, Congress passed the Trading with the Enemy Act in 1917, which was good law until 1974 when President Richard Nixon used it to impose tariffs on specific imported goods. A federal appeals court held this was a valid use of delegated authority because Nixon’s tariffs were limited in scope and were related to the type of emergency mentioned in the statute.
Nevertheless, Congress was perturbed by Nixon’s use of this authority, and in 1977, it narrowed the scope of TWEA and created a new law, the IEEPA, which Congress noted at the time was written to limit further, not increase, the president’s emergency trade authorities. Fast forward to today, and before “Liberation Day,” no president had ever used the IEEPA to impose tariffs on any good or service, let alone implement a new global tariff regime designed to restructure the entire global economy.
Trump’s raising and lowering of tariffs has been erratic, but today he is implementing 25% tariffs on Mexican and Canadian products, and 20% on Chinese products, justified by a supposed “trafficking” crisis at the northern and southern borders. In addition, there is a 10% tariff on all goods from every country based on a supposed “trade imbalance” emergency.
A number of plaintiffs sued the Trump administration, challenging the legal basis of his tariffs in court. The plaintiffs included a plumbing parts supplier, a cycling apparel retailer, and a fishing tackle supplier. All these businesses claimed significant harm from the tariffs, which the administration does not deny.
The administration argued in court, and continues to claim online, that no court has jurisdiction over a challenge to Trump’s tariffs because tariffs are part of foreign policy and foreign policy is a “political question” beyond the court’s powers. The court rightly rejected this claim, citing solid Supreme Court precedent: “It is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance.”
The court quoted the case that reviewed and approved Nixon’s implementation of tariffs, noting that “the mere incantation of ‘national emergency’ cannot, of course, sound the death-knell of the Constitution.”
Having established that federal courts may review congressional delegations of power, the court examined the text of the statute, compared it to the sweeping powers claimed by Trump’s tariff regime, and concluded that “regardless of whether the court views the president’s actions through the nondelegation doctrine, through the major questions doctrine, or simply with separation of powers in mind, any interpretation of IEEPA that delegates unlimited tariff authority is unconstitutional.”
Some people have argued that the IEEPA has a mechanism that allows Congress to revoke a president’s emergency declaration, but the court noted that the Supreme Court abrogated that mechanism in its 1983 Immigration and Naturalization Service v. Chadha decision, and that the current mechanism faces a presidential veto, making congressional review no more than the ordinary power to legislate.
“Congress’s inherent power to legislate is no substitute for the ‘judicial function’ of ‘determining the limits of statutory grants of authority,’” the court concluded.
Trump will appeal the Court of International Trade’s decision to the Court of Appeals for the Federal Circuit, which will also rule against Trump, and then Trump will appeal to the Supreme Court, where he will lose again.
His tariffs on aluminum, steel, and automobiles remain in place, as they were predicated on other statutes that delegated narrow scopes of power to the president. Trump’s first-term tariffs, as were Biden’s tariffs, were also based on these statutes.
But Trump’s dream of unilaterally reshaping the global economy without input from Congress or checks from the judiciary has been quashed, and the republic is stronger for it.