Federal appeals court judges challenged President Trump’s claim of expansive emergency powers to slap tariffs on the rest of the globe, suggesting during a high-stakes hearing Thursday that he’s stretching the law too far.
The court has let the president’s two big sets of tariffs remain in effect while the case proceeds, and the government’s lawyers begged the judges not to disrupt Mr. Trump in the middle of his negotiations to lower other countries’ trade barriers.
Brett Shumate, the Justice Department lawyer arguing the case for Mr. Trump, told the U.S. Circuit Court of Appeals for the Federal Circuit that the tariffs are paying off, forcing other nations to come to the table with better trade terms.
“It gives the president leverage,” Mr. Shumate said.
The 11-person panel of judges didn’t question the effectiveness of the tariffs, but rather whether Congress — which the Constitution grants the power to levy tariffs — legally gave enough of that power away to Mr. Trump to cover the expansive levies he’s imposed the past six months.
Mr. Shumate said Mr. Trump is acting under the International Emergency Economic Powers Act, enacted in 1977.
But the court said that may be a stretch.
“IEEPA doesn’t even say tariffs,” Judge Jimmie Reyna said.
Mr. Shumate acknowledged that but said the law borrows language from a 1975 court ruling that did deal with tariffs, so Congress must have had those powers in mind.
The problem with that, several judges said, is that the 1975 ruling, the Yoshida case, decided by the Court of Customs and Patent Appeals, envisioned far fewer tariffs than Mr. Trump has pursued. Those judges said the president is trying to weave together the best parts of the law and the ruling, while not accepting the limits of either.
Judges also pointed out that if Mr. Trump’s interpretation is correct, it would render superfluous other parts of the law that do specifically mention tariffs.
Mr. Shumate, though, said the IEEPA tariffs can be used only when a president proclaims an economic emergency, which sets those broad powers apart from the more everyday tariff powers the president has under the rest of the law.
“In emergencies, Congress wanted to give the president extraordinary powers to protect the United States,” he said.
Neal Katyal, the lawyer for the groups challenging the tariffs, said Mr. Trump was making “a breathtaking claim to power.”
At issue are two sets of tariffs that Mr. Trump imposed on April 2, on what he called “Liberation Day.”
One slaps levies on goods from China, Mexico and Canada in retaliation for what the president calls lax controls of illegal drugs flooding across America’s borders.
The other is a global set of tariffs that Mr. Trump said are meant to force a more level playing field for American goods — and, as Mr. Shumate said, to give him leverage to win the kind of deals he’s announced recently with Japan and the European Union.
Several lower courts have concluded Mr. Trump’s tariffs exceeded his powers.
The appeals court was hearing a case that came out of the U.S. Court of International Trade.
Ahead of Thursday’s argument, Mr. Trump celebrated his trade wins.
“Tariffs are making America great & rich again,” he posted on social media, using all upper-case letters in some places to emphasize his points. “One year ago, America was a dead country, now it is the ’hottest’ country anywhere in the world.”
He also cheered his “great lawyers” in the fight.
“If our Country was not able to protect itself by using tariffs against tariffs, we would be ’dead,’ with no chance of survival or success,” he said.
The court gave no indication of when it might rule.
Its decision is unlikely to be the final word, with both sides already eyeing the Supreme Court as a final destination for arguments.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.