HOT BENCH — The U.S. Court of International Trade isn’t typically a major focus of the political world. But today, a three-judge panel on the court held the first oral argument in the cases challenging the legal basis for the Trump administration’s tariff framework, moving closer to a decision that could have major consequences for the American political system and the global economy. The case is one of at least seven to date that have been filed to try to nullify Trump’s tariffs. Thus far, these lawsuits have attracted the support of groups across the political spectrum, including some prominent conservatives and former Republican government officials , more than 100 Democratic members of Congress , the libertarian Cato Institute and the liberal Brennan Center for Justice . The plaintiffs, a group of small businesses who claim that Trump’s tariffs are illegal and will decimate their businesses, are represented by the Liberty Justice Center, a libertarian public interest litigation firm. Over the course of roughly two hours today, the three judges on the panel — a mix of appointees of presidents Reagan, Obama and Trump — peppered lawyers for both sides with questions about the scope of the International Economic Emergency Powers Act, which Trump has used to justify the bulk of his tariffs. That law authorizes the president to act when there is an “unusual and extraordinary threat , which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States, if the President declares a national emergency with respect to such threat.” The judges’ questions reflected a range of issues relevant to the case. They included (1) whether the courts have the power — or are even equipped — to review a presidential determination that there has been an “unusual and extraordinary threat” or “national emergency”; (2) whether the power to “regulate” the importation of goods provided under the statute includes the power to tax them or issue tariffs; (3) whether a 50-year-old appellate court decision effectively controls the outcome of the case; and (4) whether there is any limiting principle to the government’s position, which is effectively that the president has the unilateral and unreviewable authority to issue, revoke and modify tariffs across the globe whenever he wants. The judges at times seemed disinclined to weigh in on the question of whether “trade deficits” constitute an “unusual and extraordinary threat” or a “national emergency,” as the Trump administration has claimed . They pressed the plaintiffs’ lawyer (albeit without much success) on whether he could come up with a judicially manageable standard that they could use to address such questions. The judges seemed relatively more receptive to the plaintiffs’ arguments concerning the historically unprecedented nature of Trump’s tariffs and whether Congress truly intended to grant the president the sweeping authority that the administration has claimed. After all, the Constitution gives Congress the authority to tax and impose tariffs , and they have delegated that authority to the president through a handful of trade statutes. No president has used IEEPA to impose tariffs before, and no president has claimed the broad and unfettered authority in this area that Trump has. The judges’ questioning of the Justice Department attorney representing the government was similarly probing. The government has placed much emphasis on that 50-year-old decision , which affirmed President Nixon’s power to impose targeted tariffs under a predecessor statute to IEEPA known as the Trading With the Enemy Act. But the court wrote at the time that it was not signing off “in advance [on] any future surcharge of a different nature, or any surcharge differently applied or any surcharge not reasonably related to the emergency declared.” It hardly needs to be said that much has changed since 1975 — including the emergence of a 6-3 conservative super-majority on the Supreme Court that claims to be far more reluctant to read broad grants of executive power into statutes passed by Congress. It wasn’t clear from the argument how the panel will ultimately rule. But the sweeping nature of the government’s position seemed to unsettle at least one judge on the panel — U.S. District Judge Jane Restani — who at one point asked the government’s lawyer whether the president could declare an emergency if he decides that there is a national shortage of peanut butter. The answer was not particularly illuminating. “What you’re saying,” Restani told the lawyer, “is there’s no limit” to the president’s power. 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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