Posted on February 28, 2026
Tariffs, Take 2
SCOTUS ruling was too narrow
by
Daniel Clark
The
Supreme Court threw out President Trump's unconstitutional tariffs last week.
Then again, it didn't. In its 6-3 ruling in Learning Resources v. Trump,
it decided that the International Emergency Economic Powers Act did not grant
the president the power to impose his arbitrary and capricious "Liberation
Day" tariffs. This was only a temporary setback, however, and one for
which he was prepared. Within hours, he announced a worldwide tariff of 10
percent, which he whimsically increased to 15 the following day, using Section
122 of the 1974 Trade Act as justification. This law empowers the president to
levy tariffs "to deal with large and serious United States
balance-of-payment deficits."
Trump is apparently taking
"balance-of-payment deficits" to mean the same as trade deficits,
which it doesn't. Balance-of-payment surpluses and deficits are calculated by
subtracting the total amount of money that flows out of the country from the
total amount that flows in, trade being but one of many factors. In the Learning
Resources case, Trump's own lawyers rejected the application of the Trade
Act on the basis that trade deficits are "conceptually distinct" from
balance-of-payment deficits, which would seem to seal his defeat in a future
ruling. Even if those terms were interchangeable, that would not justify such
an indiscriminate tariff, considering that the U.S. has trade surpluses with
more nations than it has trade deficits, and only a few of those deficits could
reasonably be characterized as large.
So, the
Trade Act is not a valid legal basis for Trump's global tariffs, but the point
is that the Supreme Court has not had occasion to rule on that, specifically.
Until it does, they remain in place. Assuming the Court rejects this new legal
rationale, the president will simply move on to another one, and so on. As long
as the rulings are narrowly tailored to the statutes involved, his illegal
tariffs will never die.
What the
Court should have ruled instead is that the president lacks the authority to
impose tariffs in any case. Article I Section 8 of the Constitution clearly
states, "The Congress shall have the Power to lay and collect Taxes,
Duties, Imposts and Excises," and also, "To regulate Commerce with
foreign nations." The argument that Congress has delegated these powers to
the president is in reality an admission of its own unconstitutionality, as
should be evident from Article I Section 1, which says, "All legislative
Powers herein granted shall be vested in a Congress of the United States."
Imagine a priest saying, "By
the power vested in me, Sister Catherine will conduct today's wedding ceremony
while I go fishing." That's about how absurd it is for Congress to
delegate its power of taxation. The phrase "vested in" is not merely
a synonym for "assigned to"; it carries with it connotations of
permanency. A vested power is not transferrable.
This
should be abundantly clear from the manner in which the Constitution uses this
term to delineate the separation of powers. Just as Article I Section 1 vests a
litany of powers in Congress, Article II Section 1 says, "The executive
Power shall be vested in a President of the United States," and Article
III Section 1 says, "The judicial Power of the United States, shall be
vested in one supreme Court, and in such inferior Courts as the Congress may
from time to time ordain and establish." There would be no constitutional
separation of powers if the three branches were free to swap them among
themselves. The structure of our government only makes sense if these powers
remain exclusive and inalienable.
Just look
what happens when they're not. The power to tax the importation of goods, the
constitutional exercise of which requires a complicated deliberative process,
has instead been entrusted to an individual, and made subject to his volatile
impulses. These taxes can suddenly be tripled, quadrupled or worse, with no
debate or opposition, just because Donald Trump doesn't agree with the way
Brazil conducts its elections, because he feels the president of Switzerland
was rude to him, or because he missed a routine putt and needs something to
take it out on. There's essentially no burden on him to justify his actions at
all, as there would be on the congressional sponsors of a bill who had to
defend it in open debate.
Of all the
things our founding fathers might arguably have intended, this is surely not
among them. The "originalists" on the Supreme Court ought to take
that into consideration next time around.
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