Legitimate Scope Of Judicial Restraints On Presidential Power -- Trump Tariffs Edition

In my last post a couple of days ago (May 28), I was critical of the blizzard of injunctions issued by the courts against seemingly every policy change that President Trump seeks to implement. I went so far as to call this the “opposite of democracy.” But I also noted that there are instances where judicial restraints on the executive are legitimate, most notably where the statute on which the President relies to implement a sweeping policy does not in fact grant him the authority he claims. Thus, on finding a lack of grant of authority in the statutes cited, the Supreme Court had reined in President Biden when he sought to implement policies forgiving student loans and banning fossil fuel power plants.

I ended that article by asking whether President Trump’s actions with regard to imposition of tariffs may fall into the same category of overreach as Biden’s student loan and power plant gambits. I also noted that multiple law suits had already been brought challenging the legal basis for the tariffs unilaterally imposed by the President.

It turns out that even as I was getting ready to post that essay, two different courts were about to issue thorough opinions analyzing exactly the issue of whether President Trump had sufficient statutory authority for his extensive imposition of tariffs over the past couple of months. Both concluded that he does not have such authority.

After now reading both those decisions carefully, and also reading the underlying statutes, I think that the courts are very likely correct on the question of President Trump’s lack of authority to impose tariffs unilaterally, at least in most instances where he has done so.

The two just-issued decisions are this one from the Court of International Trade, in the case of V.O.S. Selections, Inc. v. United States, issued on the evening of May 28; and this one from Judge Rudolph Contreras of the District Court for the District of Columbia, in the case of Learning Resources, Inc., v. Donald J. Trump, issued the next day, May 29.

The two decisions are not short (33 pages from the D.C. District Court and 49 from the Court of International Trade), but both get quickly to the main issue: Does the language of the International Emergency Economic Powers Act of 1977 (IEEPA) grant the President the power to impose and change tariffs on his unilateral authority when he has declared a “national emergency”? The CIT quotes the relevant language of the IEEPA as follows (page 9 of their opinion):

The President may . . . (B) investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest by any person, or with respect to any property, subject to the jurisdiction of the United States . . . .

(Emphasis added.) Basically, Trump’s position comes down to saying that the power granted under that provision to “regulate” the “importation” of “property” includes the power to impose tariffs. But does the power to “regulate” include the power to tax, and in unlimited amounts? From Judge Contreras’s decision in the DC District Court, page 18:

IEEPA does not use the words “tariffs” or “duties,” their synonyms, or any similar terms like “customs,” “taxes,” or “imposts.” . . . There is no residual clause granting the President powers beyond those expressly listed. The only activity in the [relevant section of the IEEPA] that could plausibly encompass the power to levy tariffs is that to “regulate . . . importation.” . . . The Court agrees with Plaintiffs that the power to regulate is not the power to tax.

From the CIT opinion, page 26:

Plaintiffs are correct in the narrow sense that the imprecise term “regulate . . . importation,” under any construction that would comport with the separation-of-powers underpinnings of the nondelegation and major questions doctrines, does not authorize anything as unbounded as the Worldwide and Retaliatory Tariffs.

This does not look to me like a close question. Trump’s position is very weak. This is a very poor hill for him to choose to die on, and I hope that he will come to his senses soon (although that is not his usual method of operation).

In a post on Truth Social on May 29, Trump criticized the Court of International Trade, saying “The U.S. Court of International Trade incredibly ruled against the United States of America on desperately needed Tariffs . . . .” Whether or not the tariffs are “desperately needed,” that is not a legal argument for the President having unilateral authority to impose them.

The CIT does distinguish certain of the Trump tariffs, particularly those on steel and aluminum, from the bulk of them, which are included in its terms “Worldwide and Retaliatory Tariffs.” As to the steel and aluminum tariffs, the CIT finds authority for Trump’s actions under other statutes.

An interesting question is where these cases go from here. In both the DC District Court and the CIT, the plaintiffs asked alternatively for a preliminary injunction or summary judgment, that is, final judgment on the merits of the case. In the CIT case, the court granted summary judgment and denied the motion for preliminary injunctions as moot. In other words, that case is over, and Trump has lost. Normally, that would mean that the case would go on to the appeal process in the ordinary course, without the claims of emergency and expedited time schedules that have characterized many of the preliminary injunctions issued by other courts against Trump’s policies. However, it appears that the government sought an emergency stay from the Federal Circuit Court of Appeals, which was granted yesterday, at least through June 9.

Over in the D.C. District Court case, Judge Contreras granted a preliminary injunction, but issued a 14 day stay for the government to seek relief at the appellate level. Between the two cases, something is going to be happening quickly at the appellate level.

One way of looking at this situation is that these cases give the Supreme Court a clear instance where they can and should rule against the President’s actions. That may help give them the fortitude to rule in his favor in other cases where his actions are appropriate within his authority.