Trump's Tariff Agenda Is Suddenly on Life Support
On Wednesday, the US Court of International Trade ruled that the bulk of Donald Trump's tariffs are unlawful, issuing a nationwide injunction that would put them on hold indefinitely. The three-judge panel unanimously agreed that Trump had vastly exceeded his authority and warned that his actions would, if not reined in, violate the Constitution. Its decision marks a major defeat for one of the president's signature policies and threatens his ability to remake the American economy, and all international trade, through the unilateral imposition of massive tariffs.
Dahlia Lithwick and Mark Joseph Stern discussed the decision and its immense consequences on this week's Slate Plus bonus episode of Amicus . A preview of their conversation, below, has been edited and condensed for clarity.
Dahlia Lithwick: This seems a little seismic to me. And I want to flag that this was not a partisan decision. We had judges appointed by Barack Obama, Ronald Reagan, and Donald Trump on the panel. Tell me what they said.
Mark Joseph Stern: The court said that Trump could not issue these sweeping tariffs—both the “liberation day” tariffs and the targeted tariffs against China, Mexico, and Canada—under the International Emergency Economic Powers Act. That law gives the president authority to “regulate” any “property in which any foreign country” has “any interest.” That sounds like a very broad grant of power. But the statute says it “may only be exercised to deal with an unusual and extraordinary threat with respect to which a national emergency has been declared.” On the other hand, the Constitution expressly assigns power over tariffs to Congress, not the president. And the court here said, more or less: Look, it would be unconstitutional for Congress to delegate “unlimited” tariff power to the president. So we cannot read the IEEPA, or any other statute, so broadly as to give the president authority to impose any tariffs he wants for however long he wants. We have to read it more narrowly to avoid a constitutional violation.
Then the court took a hard look at the “emergency” Trump invoked to justify his tariffs. For most of them, the alleged “emergency” was a trade deficit. But the court points out that Congress actually enacted a different statute that allows the president to manage trade deficits. It's called the Trade Act of 1974 . And it's much narrower than the IEEPA—it only allows the president to impose tariffs of 15 percent or less, and then only for 150 days. So the court ruled that if Trump wants to deal with trade deficits, he has to go through this narrower law that would keep tariffs at a fairly low ceiling. He cannot just declare emergency powers to impose whatever tariffs he wants.
Then the court turned to tariffs on China, Canada, and Mexico. Trump had a different rationale for these: He said he was wielding them as leverage to force these three countries to halt the flow of illegal fentanyl into the United States. And the court said, no, that doesn't work either. It's way too attenuated to fit into the language of the statute, because the tariffs don't actually “deal with” this threat of fentanyl. There is way too big a disconnect between the tariffs and their totally speculative impact on the reduction of fentanyl smuggling. And the court said, we cannot greenlight these tariffs under the theory that they will somehow set off a causal chain of events that will prompt these three countries to crack down on fentanyl. The court made it very clear that if it didn't draw the line here, the president could use tariffs to force other countries to do anything he wanted. And that, again, would be an unconstitutional seizure of a power that's constitutionally assigned to Congress.
This reminds me of the analysis we got a few weeks ago from Judge Fernando Rodriguez in Texas, who looked at the Alien Enemies Act and said: This is not an emergency. There were other ways the Trump administration could do the stuff it wanted to do, but this was not the right way. It feels like the lower courts, by and large, are not quite willing to give a massive benefit of the doubt to the president's claim that everything is an emergency because it feels like an emergency.
One interesting wrinkle here is that the decision does not just apply to the plaintiffs, who were a handful of companies and a dozen states that were directly affected by the tariffs. Instead, the court went ahead and issued a nationwide injunction, something the Supreme Court has recently told us it is very, very worried about . I'm curious what the justification was for this kind of relief that we already know the majority of the Supreme Court feels hinky about. Does it hold?
Well, this was actually a unique situation. The court pointed out that the Constitution itself says all “Duties, Imposts and Excises shall be uniform throughout the United States.” And the Supreme Court has interpreted “uniform” to mean that a tax or tariff “operates with the same force and effect in every place where the subject of it is found.” So the court reasoned that if granted relief exclusively to the plaintiffs, then tariffs would apply differently throughout the country. Some companies and some states would face tariffs while others would not. And that situation would violate the uniformity requirement for tariffs that's in the Constitution itself.
The court did not just wave its hands and say: “We really need broad relief because the violation is so big and the plaintiffs deserve it.” The court said: “We must grant one kind of relief—and it must be a universal injunction—because otherwise we will create a remedy that violates the Constitution.”
I'm hesitant to ask this question out loud, but this is headed to SCOTUS, probably on a rocket ship. What's going to happen?
First this goes to the US Court of Appeals for the Federal Circuit. But whatever happens there, it will likely be appealed up to the Supreme Court next. And I think the big question is: Will SCOTUS want to save Trump from himself? There would be a lot of benefits. The Supreme Court repeatedly blocked Biden's policies as an overreach of executive authority; ruling against Trump here would allow the justices to flaunt their nonpartisanship and independence and reassure the public that they don't disfavor only Democratic presidents. They could say: “Look, we're doing it to Trump, too!” The court could quite easily cite its past decisions on executive authority to say this is overreach. If I had to bet, I'd say that's what the court is going to do.
Remember, too, that we're barely a week out from the Supreme Court crushing independent agencies while creating a special carve-out for the Federal Reserve's independence. I think the justices don't want to give Trump total control over the Fed because they're afraid he'll wreck the economy. And if the court is willing to suspend the unitary executive theory to protect their 401(k)s, it probably won't need much prodding to rule against Trump here and stop the mad-king president from weaponizing tariffs to thrust us into another Great Recession.
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