TARIFFS AND THE TEXT — This week, the Trump administration offered its most extensive legal defense of the tariffs that it has imposed in recent weeks. The takeaway? The White House’s legal rationale behind its action is far weaker than you might have imagined. Boiled down to its essence, the administration contends that an emergency economic powers law passed in 1977, known as the International Economic Emergency Powers Act, grants the president the unfettered and judicially unreviewable power to impose tariffs across the globe. If only it were so simple. Congress – not the president – has the power under the Constitution to tax and impose tariffs , and it has delegated that authority to the president only in a handful of trade statutes . The IEEPA granted the president limited authority to impose things like economic sanctions in emergency situations, but there is no grant of tariff authority in the text of that law, and we were not in an economic emergency before Trump’s tariffs. It would not make sense to read broad tariff authority into the law, particularly since it was passed by Congress to limit the president’s emergency economic powers — not to give the president the power to disrupt, remake and possibly even tank the global economy whenever he wants. Any such reading would also run afoul of the Supreme Court’s relatively new “major questions doctrine,” which requires a clear statutory delegation of power from Congress when an executive action exceeds an undefined threshold of “economic and political significance.” In other words, it’s a relatively straightforward legal case against the tariffs . And the Justice Department’s responses to these arguments are at times hard to square with the Supreme Court’s approach to statutory interpretation and executive power under the current conservative majority. The government claims, for instance, that the president’s tariff authority flows from language in IEEPA that grants him the power to “regulate” the “importation” of foreign goods, but the argument suffers from several conspicuous shortcomings. For starters, it is far from obvious that the power to “regulate” includes the power to “tax.” The Framers, for what it is worth, did not use the terms interchangeably , and though the government’s briefs cite several definitions of the word “regulate,” none of them specifies that the term includes the power to tax or issue tariffs. In addition, the government relies heavily on a 50-year-old decision from an appeals court that permitted then-President Nixon to impose a broad tariff under analogous language in the Trading With the Enemy Act, a predecessor to the IEEPA. The outcome of the decision was debatable even at the time, but since then, the courts — and the Supreme Court in particular — have become far more wedded to textualism to guide their statutory interpretation, and more reluctant to read broad grants of authority into language that is arguably ambiguous. This decision cited by the Justice Department signed off on Nixon’s tariff, but the appeals court in fact went out of its way to disavow what is the Trump administration’s current position — namely, the idea that the president has broad and unfettered power in this area. The court specified that it was not approving “in advance any future surcharge of a different nature, or any surcharge differently applied or any surcharge not reasonably related to the emergency declared.” Then there is the major questions doctrine. The Justice Department argues that it does not apply here “because the doctrine does not apply to presidential actions, especially in the national-security and foreign-affairs domains.” At the moment, this is at best an open question — not one that has been resolved in the government’s favor. In fact, although the major questions doctrine is a relatively recent invention of the conservative justices, they have never addressed a situation like this one, and it is not clear that they would endorse the Justice Department’s proposed limitations. After all, the Trump administration has taken the position that the president directly controls every administrative agency , and if that is correct, the distinction between “presidential actions” and agency actions — which have been at issue in prior Supreme Court decisions under the major questions doctrine — becomes meaningless as a practical matter. Beyond that, there are many presidential powers that can be abused in a way that ultimately implicates the “national-security and foreign-affairs domains.” The world is big, complex and interconnected. That does not necessarily mean that the president has the power — or should have the power — to upend the global economy. Welcome to POLITICO Nightly. Reach out with news, tips and ideas at nightly@politico.com . Or contact tonight’s author at akhardori@politico.com .
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