SCOTUS Decision

There is quite a lot occurring with our fearless leader in charge who believes he can make decisions regardless of the results of his decision with regard to the Constitution. Congress can impose Tariffs. The president can not.

“The Context You Need to Understand the Supreme Court’s Tariffs Decision,” Civil Discourse, Joyce Vance

Thanks for being here and for reading Civil Discourse. If it helps you understand these issues better, I hope you’ll share it with friends and consider subscribing if you don’t already. Joyce Vance.

The most shocking thing about the Supreme Court’s decision in Learning Resources, the tariffs case, is that three Justices would have let Trump use a statute that doesn’t mention tariffs to impose ones that are unrestricted in amount or length. Fortunately, the other six said no.

We discussed this case extensively ahead of oral argument on November 5, last year. Congress has the power to impose tariffs. But it has, in some cases, “loaned” it to the president, in specific grants with limitations. Here, the Court considered this administration’s claim that the president had the power to impose tariffs, without any limitations, under the International Emergency Economic Powers Act (IEEPA). The administration contended that the president has that power because the statute says that the president can regulate the importation of foreign goods if there is “any unusual and extraordinary threat” that poses a national emergency.

This is the common thread throughout Trump’s efforts to seize power that doesn’t belong to the presidency throughout the course of this administration: Find a statute that gives the president “unusual” powers during a national “emergency” and then proceed to drive a truck through our laws and norms with it. He did that with deportations by claiming the extreme powers the Alien Enemies Act affords a president during wartime applied because he thought a Venezuelan gang was invading the U.S. He did it with the National Guard, claiming crime was so rampant in American cities that he was entitled to federalize the National Guard to enforce the law. It’s the one consistent principle of this president: Accumulate and exercise as much power as possible, whether the Constitution assigns it to you or not.

In both of those cases, with deportations and the Guard, the Supreme Court administered a slap on the wrist to the administration, ruling against them in preliminary shadow docket rulings. The tariffs case is different; it has been fully briefed, and there was an oral argument before the Court. Today, the Justices issued a 170-page decision, explaining their reasoning, which doesn’t happen with shadow docket cases.

I’ll be reading the opinion and digging into the nitty-gritty of it; we’ll discuss it in detail over the weekend. But I wanted to give you a quick baseline for understanding the “holding” (the ruling): IEEPA does not authorize the President to impose tariffs. It’s an important decision about the constitutional balance of power between the three branches of government. Remember that this president has both:

Today, the Supreme Court told him to quit stealing from Congress and reaffirmed its own ability to engage in judicial review. It is a very important decision, perhaps the most important we’ve seen from the Court since it went the opposite direction and expanded presidential power in the criminal immunity case. Finally, they’ve pumped the brakes on the runaway presidency.

That doesn’t mean the Supreme Court is suddenly the hero of the Trump era. As we started out by noting, the decision was 6-3. The dissents came, predictably, from Thomas and Alito, and perhaps less so, from Kavanaugh. But the decision should have been 9-0. And we still have a long way to go before the end of this term, including Callais, the gerrymandering case, and other voting rights cases, where the Court could put a heavy thumb on the scales of justice and influence the outcome of the midterm elections and the political balance of power in the country for a generation. This is a good decision, in this specific case, for now. That’s the most I’m prepared to say before we see the remainder of the Court’s decisions.

As I wrote to you back in November ahead of the oral argument:

“This is not a case about tariffs in general or about whether they are good policy. It’s a case about specific tariffs that President Trump imposed in February and whether he had the statutory authority to impose them…

We studied the U.S. Court of Appeals for the Federal Circuit’s decision that rejected Trump’s effort to impose tariffs using IEEPA (I-E-Pa), the 1977 International Emergency Economic Powers Act, for the very simple reason that the Act, unlike other statutes that do give a president the right to impose tariffs, doesn’t mention tariffs at all. It does not give the president any authority to impose them under the statute that he has expressly said he used to do so. This is the kind of textualist argument conservative justices have backed in other cases, and to abandon that approach here would be a sharp and hypocritical departure for them. Last term, Justice Gorsuch wrote that the justices’ primary focus should be on the text of the statute.

The Constitution gives the power to impose taxes, which includes tariffs, to Congress. Because IEEPA doesn’t extend that power to the president, his use of it here is just a power grab, the kind of practice the Supreme Court should push back against if it intends to remain relevant to the American experiment. The Federal Circuit’s decision pointed out that while other laws expressly give the president the power to impose tariffs, IEEPA does not. Congress knows how to give the president the power to impose tariffs when it wants to and because it did not do so here, that should be the end of the inquiry. The administration should lose here…”

Thankfully, it did.

More on this later.