I very much doubt the recent federal appeals court ruling striking down President Trump’s emergency tariffs is going to survive Supreme Court review:
A federal appeals court on Friday struck down President Donald Trump’s use of emergency powers granted by Congress to impose tariffs, opening the door for the administration to potentially have to repay billions worth of duties.
The 7-4 ruling raises doubt about deals Trump has struck with the European Union, Japan, South Korea and other major trading partners to reduce the “reciprocal” tariff rates on their imports, from the levels the administration originally set in April.
“We conclude Congress … did not give the president wide-ranging authority to impose tariffs” of the kind Trump imposed in his sweeping executive orders, the majority wrote.
The ruling also invalidates the tariffs that Trump has imposed on China, Canada and Mexico to pressure those countries to do more to stop shipments of fentanyl and precursor chemicals from entering the United States.
The decision, however, will not take effect until Oct. 14, giving the Trump administration time to appeal the decision to the Supreme Court.
The fact is that Congress already delegated the necessary power to the Executive Branch more than 50 years ago. This is why President Trump declared his tariffs to be necessary due to national security concerns, which are considerably more valid than the average “national security concern” that is utilized to justify so many federal government actions.
Historically, Congress set tariffs and maintained tight control over this power. However, over time, particularly after the Great Depression, there was a shift towards delegating some authority to the executive branch. This began with the Reciprocal Trade Agreements Act of 1934, allowing the President to negotiate trade agreements without separate congressional approval each time. Later acts, such as the Trade Expansion Act of 1962 and the Trade Act of 1974, further evolved this delegated authority. These allowed the President to act on national security concerns through tariffs or respond to unfair foreign trade practices.
And anyhow, all President Trump has to do is declare an “emanation” or a “penumbra” and he’ll be good to go. September promises to be an interesting month in more ways than one.