Wait, Can He Actually Do That? Part 4: "Emergency" Tariffs

Tariffs were never going to be the magic wand that Donald Trump believes them to be--capable of super-charging domestic manufacturing and raising enough revenue to offset substantial tax cuts elsewhere, but in the first two and a half weeks of the second Trump administration, we have mostly seen Trump use tariffs for a different reason: to bully other countries into acquiescing in Trump's demands regarding the movement of undocumented immigrants and illegal drugs into the United States.

To be sure, even with respect to that aim, it is not clear that tariffs are effective. For example, the centerpiece of the deal that Canada struck to delay the 25% tariffs on most goods (and 10% on oil) for 30 days was a commitment by Canada to take measures that our neighbor to the north was already planning to take. Something similar seems to be true of the deal with Mexico. But that's probably sufficient for Trump, who cares much more about appearing to "win" concessions than about actually affecting policy, much less addressing underlying problems. And that makes a certain amount of sense, given that some of the supposed underlying problems--like the movement of fentanyl from Canada into the United States--don't even exist.

Unfortunately, Trump's tariffs aren't entirely for show. The new 10% tariff on Chinese goods and the Chinese counter-measures are in effect. And in less than a month, the tariffs on Canadian and Mexican goods will go into effect, absent some further deal. Even if the North American tariffs are completely shelved, they will have already done considerable damage to relations with the governments and peoples of Canada and Mexico.

What's more, there's also the delicate question of the tariffs' legality. Over the last few weeks, some non-lawyer friends have asked me whether the president can unilaterally impose tariffs on foreign goods. The answer to that question is clearly no. Tariffs are taxes, and Article I of the Constitution vests the power to tax in Congress, not the president. However, Congress can delegate substantial power to impose tariffs to the president. It has done so expressly in a number of statutes.

In imposing the tariffs on goods from China and the temporarily suspended tariffs on goods from Canada and Mexico, Trump did not rely on the clearest statutory delegations of tariff authority, probably because he did not wish to comply with the procedural requirements that accompany them. Instead, according to the official White House Fact Sheet, he relied on the International Emergency Economic Powers Act (IEEPA). Its operative provision does not expressly grant tariff authority in so many words and has not generally been used for the imposition of tariffs, but its broad language could perhaps be construed to include tariff authority. It allows the president to "investigate, regulate, or prohibit . . . any transactions in foreign exchange . . . ." I suppose a tariff could be understood as a regulation of a transaction in foreign exchange, although a Supreme Court that cared as much about the major questions doctrine as it claims to care about it might think that this language is insufficiently clear to give the president control over all foreign trade, especially when the IEEPA is read in juxtaposition with other statutes more clearly granting tariff authority.

In any event, in order to invoke the power to "regulate" and thus, let's assume for the sake of argument, impose tariffs under the IEEPA, there must be an emergency declaration with respect to 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." Trump has declared emergencies with respect to migration and drugs.

To be sure, the fact that Trump claims that there's an emergency (or two) doesn't necessarily mean that there is an emergency. One tipoff that the White House Fact Sheet is not exactly reality-based is its use of standard Trumpian hyperbole, as when it asserts that "voters overwhelmingly elected" Trump, even though his 49.8%-48.3% popular vote margin was quite modest by historical standards (although better than his own showing in 2016 or 2020).

The supposed emergencies that justify Trump's tariffs are the flow of undocumented immigrants and drugs (especially fentanyl) that, Trump claims, China, Mexico, and Canada are taking insufficient steps to stem. How, one might wonder, do taxes on avocados from Mexico, maple syrup from Canada, and toys from China stem the flow of persons and drugs? The claim is that the tariffs will impose hardships on our trading partners, which, in turn, will bring them to the bargaining table where they will accede to Trump's demands that they take firmer action. The Fact Sheet cites Trump's recent success in using tariffs to bully Colombia into changing its stance on migrant repatriation as evidence that this approach can succeed. And, if one believes that the concessions from Canada and Mexico are not merely for show, the tariffs on those countries could be deemed a tentative success along these lines as well. 

However, even assuming the tariffs can (and do) achieve their stated aim, does that mean that they are lawful under the IEEPA? Courts do not review a president's determination that an emergency exists, so the lack of a factual basis for Trump's emergency declarations would not doom them. However, there is authority for federal courts reviewing whether a measure taken pursuant to the IEEPA really is within the scope of the statutory authorization. What authority? In 2020, a federal district court invalidated Trump's initial effort to ban TikTok on the basis of the IEEPA. The parties agreed to dismiss the case before any appellate ruling, so we don't know whether that approach would be followed in future cases, but it could be.

Accordingly, in addition to China's WTO complaint, we could see private litigation by U.S. importers of Chinese goods in U.S. courts. Meanwhile, if the tariffs do eventually go into effect against Canada and Mexico, in addition to domestic litigation by U.S. importers of Canadian and Mexican goods, we might see Canada and/or Mexico challenge the tariffs under the processes in the USMCA (the successor agreement to NAFTA that Trump himself pushed on our North American neighbors). There too, the factual predicate for the emergency would not be subject to challenge, but the tariffs themselves could be.

So, the answer to the question whether Trump can legally do what he has done here is almost certainly no. The answer to the question whether he can get away with it is unclear. And yes, I realize that's very often the answer to the questions posed in this series.

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Postscript: My Verdict column this week discusses Trump's cancellation of the security details of his perceived political enemies as among the worst, most thuggish abuses of power he has committed. Although I often write blog posts on topics related to my columns, the sheer number and variety of constitutional crises generated by the new Trump administration make it hard to keep up, so I decided to cover two unrelated events this week.