Can Trump legally impose these tariffs? Ask the Lawyer ...Middle East

Q: The tariffs imposed by President Donald Trump badly impact our business. We are worried we won’t get through the cost and supply issues. Does the president actually have the authority to impose these tariffs? For us, they are proving to be quite hurtful.

G.N., Bellflower

A: The president of the United States has two primary sources upon which to seek justifying the imposition of tariffs: First, statutory authority, which consists of congressional grants, such as through statutes (in other words, laws on the books), and second, a more limited source, which is constitutional authority.

Under the Constitution, Article 1, Section 8, Congress has the primary power over foreign commerce; however, Congress has provided a level of authority to the president through several statutes (one of which is the Trade Expansion Act of 1962). Another is the Trade Act of 1972, by which the president can impose tariffs, or other trade sanctions, in response to foreign trade practices deemed to be unfair.

As to a constitutional basis for imposing tariffs, the president may assert powers in foreign affairs, particularly if doing so is to address foreign threats or during wartime. Having said that, this authority should be limited if effort is made to exercise it without congressional approval — at least during times of peace.

I read your question to ask if what the president has done will be able to withstand scrutiny, be it in Congress or by the courts. Since Congress presently is controlled by the president’s party (the Republicans), my impression is they will not override him, at least not any time soon.

As to the courts, the statutory bases for the tariffs are fairly broad, but the judicial decisions definitely remain to play out. Some courts have already ruled against the president, but the final determination may well wind up being made by the Supreme Court. In sum, I empathize with your circumstances, but judicial review is very likely going to have play out.

Q: My other question: I see where the Supreme Court decided not to take up an emergency appeal by the toy company Learning Resources. A lower court ruled Trump cannot unilaterally impose the tariffs under emergency authority, but the court’s decision is on hold pending appellate review. Why wouldn’t the Supreme Court take it up right away so we can get clarity? Like I said, we are hurting!

G.N. Bellflower

A: You are correct that Learning Resources asked the Supreme Court to take up the legality of the president imposing tariffs under “emergency authority.” A federal district court ruled in favor of Learning Resources, but the decision remains in limbo pending the outcome of the appeal process.

The Supreme Court declined to fast-track, and offered no explanation. Research indicates the court rarely will agree to bypass the standard appeals process. A possible rationale is that this will provide for a more complete record, factually and legally.

What concerns me is that by not taking up the matter right away, the court seems to be saying it does not find a sufficiently compelling reason to do so. But argument was made that there may well be dire consequences to any number of businesses.

Perhaps the Supreme Court was mindful that the Court of Appeals in Washington, D.C, and the Court of International Trade are scheduled to hear arguments this month about the legality or illegality of utilizing the International Emergency Economic Powers Act to impose tariffs. Each of those courts has issued preliminary findings, and arguments to them are underway. Then, if the issue winds up as, expected, with the Supreme Court, hopefully it will be taken up during their upcoming October term.

Ron Sokol has been a practicing attorney for more than 40 years, and has also served many times as a judge pro tem, mediator and arbitrator. It is important to keep in mind that this column presents a summary of the law, and is not to be treated or considered legal advice, let alone a substitute for actual consultation with a qualified professional.

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