If Donald Trump had a motto, it might be: Have carrots ready but start with sticks. With Learning Resources v. Trump, in which a 6-3 Supreme Court majority struck down Trump’s largest group of tariffs, America’s judiciary has disarmed the president of one of his favorite sticks.
He will no doubt find others. Yet the justices have struck an important blow for our constitutional separation of powers. They have made it clear that presidents who set themselves up as independent lawmakers generally make themselves law-breakers. This message comes across loud and clear, even if the justices are bedeviled by disagreements as to the appropriate rationale for their decision.
In his second administration, Trump’s go-to stick for international relations had been the power to set tariffs at his discretion, without intervening delay, and without any process requirement more troublesome than getting his lawyers to gin up a cursory emergency declaration. He derived this power from a novel interpretation of the International Emergency Economic Powers Act of 1977.
Legislators passed that statute, which never mentions tariffs, to limit the president’s emergency powers relative to its predecessor statute, the Trading With the Enemy Act. It had never been used as a basis for tariffs before. Far from slowing Trump down, though, the lack of precedents for IEEPA tariffs made them especially appealing to the administration—a blank canvas waiting for a visionary artist. At least, that is how the president saw things.
Unlike most of his policy positions, Trump’s affinity for tariffs runs deep. Whatever economists or financiers might say, Trump is sure that international trade benefits sellers and hurts buyers, and that tariffs, applied energetically, would prevent his nation from being fleeced. In his first administration, he acted on this belief through aggressive application of tariff statutes that undeniably empower the president. In his second administration he has again used those same tools.
But the IEEPA tariffs were a novelty and one felt that Trump’s love for their apparent lack of constraints rivaled his love for the trade barriers themselves. He slapped a massive tariff on Brazil, notwithstanding the United States having a trade surplus with the South American nation. The rationale? Its criminal prosecution of its former leader, a Trump superfan, allegedly constituted a threat to America’s national security. More routinely, Trump relished entering into trade negotiations armed with the ability to impose a punitive tariff of his own choosing. If the trading partner got prickly, as when Ontario’s government ran an ad quoting Ronald Reagan against barriers to trade, the prescription was obvious: extra tariff. (To be fair, Trump’s bark was often bigger than his bite, and he did not always follow through on his threats.)
Meanwhile, having imposed a high baseline tariff rate, Trump could move on to the carrot of rate relaxation if, for example, a gift of a kilogram gold bar (ostensibly for his library), promises of investment in the US, and some concessions on American exports should happen to radically reduce the threat posed by a rich Alpine trading partner.
Trump’s lawyers were prepared to defend every IEEPA tariff as a necessity driven by the president’s sober determinations of national emergency. The tariffs directly implicated in Learning Resources stemmed from the president’s declaration of an emergency to respond to the “extraordinary threat posed by illegal aliens and drugs” flowing across the southern andnorthern borders. The Canadian-facing part of this was ridiculous. More drugs probably flow out of the U.S. than into over the northern border.
But such declarations are hard to challenge. Judges do not want to be in the business of second-guessing the Commander-in-Chief when he says extraordinary actions are necessary; the proliferation of bogus emergencies is a bipartisan problembut it was not addressed in this case. On February 11 a majority of the U.S. House of Representatives consisting of all Democrats and 6 Republicans voted to disapprove of Trump’s Canada emergency. But the tardiness of that action testifies to how little appetite Republicans have for second-guessing their president. Most of the president’s allies were happy to hold forth on the horrors of the fentanyl scourge without scrutinizing any claims about causality. And, in our post-legislative-veto world, the president can simply shoot such disapprovals down with his veto.
Rather than focusing on whether Trump’s emergencies were appropriately declared, the litigation challenging Trump’s IEEPA tariffs focused on whether such actions could be justified by the language of the statute. This was yet another round in the now long-running show, “When can you teach an old law new tricks?” The Supreme Court has gotten a great deal of practice answering such statutory interpretation questions in recent years, as presidents of both parties have been very willing to go around Congress when working with it is inconvenient. During the Biden administration, conservative justices repeatedly insisted that “major questions” needed to be answered by Congress rather than through the president’s initiative. The liberal justices generally disagreed, saying that statutes that seemed to confer very broad powers ought to be taken literally and seriously.
Trump v. Learning Resources scrambled the battle lines, revealing that the conservatives who favor the Major Questions Doctrine disagree along several dimensions about what it means and when it should apply. Liberal critics were wrong to say that the conservatives would never apply their emerging doctrine against a GOP president, but three conservative justices did find reasons to accept the administration’s assertion that IEEPA’s conferral of the power to “regulate” trade during emergencies included the power to set tariffs. In this instance, they favored a broad reading of ambiguous statutory text, just as the liberal justices had done regarding the interpretation underlying Biden’s student loan forgiveness program.
As simple definitional matters, favoring the executive in each case is defensible. Yet, once one is willing to step back and consider what is being accomplished by the new reading, it is clear that the administration was seeking to give itself almost boundless authority, in a way that it is impossible to imagine Congress ever intended.
All the members of the Learning Resources majority agree that the Court ought to step back and recognize that the IEEPA power claimed would supersede the need for the extensive tariff legislation that Congress has enacted over many decades. As Chief Justice Roberts’s opinion for the Court says, the government’s assertion that the power to “regulate” includes the power to impose tariffs—i.e., the power to tax—would effect a “transformative expansion” of the executive branch’s powers. Justice Elena Kagan (joined by her two liberal colleagues) resists application of the Major Questions Doctrine and wants to insist that it the case is a matter of interpreting a particular statute. But the bottom line is still an attentiveness to the way an aggressive reading of a statute by the executive branch can fundamentally distort the policymaking system.
The importance of relations between different institutions of government is hammered home most insistently by Justice Neil Gorsuch. If one can put aside Gorsuch’s rather tetchy defense of his own version of the Major Questions Doctrine, his concurrence contains a profound defense of a constitutional system aiming for self-government through an active legislature. He alone noted that the IEEPA tariffs themselves would be a ready tool for a future president ready to declare a climate emergency, allowing prohibitively high tariffs on “gas-powered automobiles.” Indeed, “virtually any imports for any emergency any President might perceive” would be subject to presidential rate-setting, which could be “at 1 percent or 1,000,000 percent,” and would allow the president to “change his mind at any time for nearly any reason.”
Gorsuch’s peroration, which has been a social media sensation (at least as these things go), addresses itself to those who “think it important for the Nation to impose more tariffs.” Congress must be their arena, however imperfect, and however frustrating the process of bringing skeptics on board would be. “Through that process, the Nation can tap the combined wisdom of the people’s elected representatives, not just that of one faction or man,” Gorsuch wrote. “There, deliberation tempers impulse, and compromise hammers disagreements into workable solutions.”
Could the president’s defenders pass a statute conferring tariff powers similar to those he claimed to find in IEEPA? The only world in which that would be conceivable would be one in which trust between the branches flourished, such that legislators would prize the president’s negotiating dexterity while not worrying about his abuses. We do not live in that world, and probably never will. If the president wants more tariff powers than those Congress has clearly provided, he would need to situate those powers in a disciplining system that a majority of legislators would accept. The kind of limitless flexibility claimed in the defunct IEEPA regimes is unthinkable.
Which is to say: Americans still live under the rule of law, no thanks to recent presidents. Our high court is committed, if imperfectly, to an executive branch constrained by law and, therefore, to a Congress that is the only body capable of writing those laws. President Trump may insist “We don’t need anything more from Congress.” The rest of us ought to know better.
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