Tariffs

While attending a doctor appointment with my wife recently, I told her doctor in jest that upon my retirement as a corporate lawyer, I have granted myself an honorary license to practice medicine! Her doctor managed a polite smile! So, while I am well out over my skis when it comes to medicine, I am not much better off when it comes to understanding the use of tariffs. But I will be sure not to allow this lack of expertise on tariff policy to preclude me from sharing a few thoughts about tariffs. My main purpose in writing is to discuss an important legal issue which is implicated by President Trump’s tariff policy.

From my perspective, I have no issue with President Trump or any U.S. President imposing tariffs on imports from other countries to address discriminatory trade practices of other countries or large and significant trade deficits with other countries. The same would be true for imports from other countries that threaten U.S. national security. These and certain other allowances for tariffs are expressly authorized by current federal law, and President Trump or any other U.S. President can impose tariffs pursuant to this legal authorization to address the issues discussed above.

The legal issue which I wish to focus on concerns President Trump’s imposition of tariffs under the 1977 law entitled International Emergency Economic Powers Act (“IEEPA”). Specifically, IEEPA permits the President in a national emergency to address unusual and extraordinary threats, including the importation of foreign property. President Trump has declared that the U.S. trade deficit and entrance of fentanyl into our country constitutes a national emergency under IEEPA and grants him wide ranging authority to impose tariffs on imports from other countries who are contributing to these threats. Most Democrats and some Republicans in Congress have opposed the imposition of tariffs under IEEPA because IEEPA does not mention and authorize the imposition of tariffs in the law. However, President Trump believes the authority to impose tariffs is nevertheless included, and he has acted accordingly in imposing wide ranging tariffs on numerous countries, including Canada, EU, and China.

Several private businesses have brought litigation challenging President Trump’s authority to impose tariffs under IEEPA, and the case is now before the U.S. Supreme Court which heard oral arguments earlier this week. While it is likely a fool’s errand to predict how the U.S. Supreme Court will ultimately decide this case, I believe it is fair to say that both conservative and liberal Justices expressed some level of skepticism regarding the President’s authority to impose tariffs under IEEPA.

My concern with this case goes well beyond the issue of tariffs. If President Trump or any U.S. President believes tariffs are a good economic tool, existing federal law seems to provide adequate statutory latitude to impose them. If this is not the case, make the case for additional authority to the American people and seek legislative authority from Congress.

I believe the Editorial Board of the Wall Street Journal has it exactly right with their concern that, if the U.S. Supreme Court upholds President Trump’s imposition of tariffs under IEEPA, it likely opens the door for a President Newsom, Pritzker, or Cortez to use IEEPA to address Climate Change, DEI or any Progressive idea in a way that IEEPA was never intended to address. Does any Conservative want to take this chance?

God bless you and thank you for the privilege of your time in reading my blog.