Last Friday’s U.S. Supreme Court tariff decision was a workmanlike exercise of statutory analysis. The reaction from the administration was not. President Trump impugned the integrity and patriotism of the justices, claiming that “the court has been swayed by foreign interests.” Vice President Vance proclaimed, “This is lawlessness from the court, plain and simple,” a conclusion pronounced so soon after the court’s opinion was published as to suggest the vice president is a speed-reader of world-class ability.
Here is the basis for the court’s opinion. The president claimed that the law explicitly granted him authority to “regulate” imports. The court ruled that word could not be stretched to reach tariffs, since Congress hadn’t used the word “tariff,” and other laws that did explicitly give the president tariff authority came with constraints not present in the law the president had been using. The president’s interpretation would render all those other laws superfluous: He could impose tariffs without limits and call it regulation.
The president immediately imposed a 10% across-the-board tariff under a different statute and suggested he’d find other tariff statutes to apply as well.
There is, however, a major difference between the tariffs struck down last Friday and any new tariff authority the president might attempt. Here is what those other tariff laws require: The president can ask the International Trade Commission to make findings that certain products are being imported in such amounts as to bankrupt the American industry making such products. He can use another law to ask the Commerce and Defense departments to investigate whether imports of specific items undermine an American industry vital for defense. He can ask the Commerce Department to recommend proportionate responses to actual instances of foreign countries’ violation of their trade agreements with us. And, in the wake of a balance-of-payments crisis, he can impose a tariff of no more than 15% for no more than 150 days. This latter provision has never been used before, but this was the law Trump specifically invoked the day of the court’s decision.
Why this matters is that none of these other laws will allow the president to do what he has been doing: wielding the threat of unlimited tariff authority on any country he wishes for whatever reason he has for however long and at any rate he chooses. Such an audacious claim undermined his position at the Supreme Court. When Trump announced tariffs on any country that did not agree with his plans to seize Greenland, or increased tariffs on Brazil because Brazil’s Supreme Court refused to reverse the conviction of former President Bolsonaro, a friend of Trump, he was broadcasting to the court that his interpretation of the law had no limits. In light of those actual examples, it was a surprise that there were any justices willing to uphold the president’s view of his tariff power.
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Tom Campbell is a professor of law and a professor of economics at Chapman University. He is the author of a constitutional law text, “Separation of Powers in Practice,” and a law review article, “Presidential Authority to Impose Tariffs,” that was cited in the lower court’s opinion in the tariff case. He is a former five-term U.S. congressman and a former U.S. Supreme Court law clerk.
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