Trump's Legal Authority to Impose Tariffs

What happened to Congress?

|The Volokh Conspiracy |

In case you were wondering (as I have been wondering) how our president can simply snap his fingers and impose tariffs (of up to 25% on all goods) on imports from Mexico without even informing, let alone getting legal authorization from, Congress, an excellent essay by Scott Anderson and Kathleen Claussen over on Lawfare lays out the relevant legal framework.

The bottom line: while earlier instances of unilateral tariff impositions by the Trump Administration (on goods from China, on all steel and aluminum imports, etc.) were all premised on broad presidential authority granted in various trade-related statutes (e.g. Section 301 of the 1974 Trade Act), Trump is basing his power to impose the new Mexican tariffs (scheduled to go into effect on June 10) on "the authorities (sic) granted to me by the International Emergency Economic Powers Act (IEEPA)."

The IEEPA [full-text here] kicks in once a national emergency has been declared with respect to an "unusual and extraordinary threat … to the national security, foreign policy, or economy of the United States." The IEEPA then gives the president facing such emergency the power to:

regulate … or prohibit … any … transportation, importation, or exportation of … any property in which any foreign country or a national thereof has any interest … or with respect to any property, subject to the jurisdiction of the United States.

Though the IEEPA has apparently never been invoked before in connection with tariffs on imported goods, more typically being used for the imposition of economic sanctions or for freezing bank accounts, it does appear that such an action would fit within the scope of the statutory authorization (which has, as Anderson and Claussen explain, been given broad readings by the courts in the few cases in which it has been challenged).  The President, you will recall, has declared a national emergency with respect to migrants at our southern border, and though Congress voted to rescind the emergency declaration, Trump vetoed the measure and there were not enough votes to override the veto.

The statute, though, does raise some tricky "delegation doctrine" questions; there are some limits to Congress' power to delegate its law-making functions to others (including members of the Executive Branch), though locating the line which Congress may not cross has proven, over the years, to be an enormously difficult enterprise.

But putting aside the constitutional questions, one has to hope that at some point Congress will return to its senses and re-assert its fundamental law-making powers by either repealing or, perhaps more sensibly, providing for a 15- or 30-day "sunset" provision that will nullify the presidential actions unless during that period Congress approves them via legislation, by majority vote in each chamber. There are certainly times, in the face of true national emergencies, when the Chief Executive has to act quickly and decisively; that is as true for economic warfare as for ordinary on the ground military warfare.  But there is no good reason for allowing the president to entirely avoid the need (and the constitutional requirement) to obtain a majority of each house of Congress in order to declare economic war (or, for that matter, to declare ordinary war).

I suspect that because this issue is now seen as being all about Mr. Trump and is all entangled in the Trump/Anti-Trump miasma, there's probably no chance of any revision in the law until a new Chief Executive is in place. But one can still hope.

NEXT: Migrant Kids As Young As 5 Were Left in Vans Overnight While Waiting to Reunite With Their Families

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  1. “I suspect that because this issue is now seen as being all about Mr. Trump and is all entangled in the Trump/Anti-Trump miasma, there’s probably no chance of any revision in the law until a new Chief Executive is in place.“

    I fear that you are correct. The effect of the idiotic and rabid anti-Trump Resistance from the Democratic Party (who have been acting for nearly 3 years as if any election which they lose is by definition illegitimate, and it’s not just Trump, see Stacy Abrams spouting insanity about how she really won in Georgia) has created a political dynamic requiring an equal (and equally idiotic) response from GOP Senators who think that they need to defend Trump on every front – even when Trump is being really stupid (see Trump’s trade policies in general). It would be really nice if Congress took back it’s Constitutional prerogative to regulate foreign trade and put a halt to these idiotic trade wars. But that would require Congress to actually act responsibly, something it hasn’t done since – well, since before Smoot-Hawley, if not before.

    1. Oh thank God. I was afraid that your post would not end up blaming Democrats for this mess. I am relieved that–nope!–it turns out to be the fault of the Dems, and the so-called anti-Trump movement.

      I am relieved. The sun continues to rise in the east and set in the west.

      1. Are you still pretending to be a lawyer?

        1. Are you still pretending to offer pertinent comments?

          1. But it’s a fun linguistic question. I mean; I *am* a lawyer, so it’s sort of metaphysical to think about me pretending to be a lawyer. I guess I could pretend to be a good lawyer (if, in fact, I was not). Or a member of the Supreme Court Bar (I am, in fact, not).

            But as insults go, it’s not a bad one. (I’ve thought, over the past several years, about the LA Lakers, “Why are you guys still pretending to be an NBA basketball team?”)

            Jesse has never said anything that would make one think, “Hmm…did that comment stem from any legal training, background or experience?”, so his insult is one that I can’t volley back at him. He has successfully immunized himself from any accusation of having received higher education. Hat-tip to him, for that.

            1. If an actual lawyer plays a lawyer in a movie or play, is he “pretending to be a lawyer?”

    2. “But that would require Congress to actually act responsibly…”

      But Congress did act responsibly by voting to rescind the preposterous national emergency declaration. The President vetoed it, though. Do you suppose the failure to override was caused by “idiotic and rabid anti-Trump Resistance”? Or was it Congressional Republicans who bit their tongues?

      Or do you think we are really in the middle of a national emergency? If so, what does the stuff in your post re: “equally idiotic . . . response from GOP Senators” mean?

      1. Quick question (two, actually): (1) Do you seriously deny that the last 2-1/2 years have showcased an “idiotic and rabid anti-Trump Resistance”? and (2) If so, who is your recreational drug dealer?

        1. It’s honestly a little scary. I mean, Trump’s not a bright guy. It would be easy to characterize him as a buffoon, because it’s true. But Democrats seem hellbent on characterizing him as Hitler.

          1. I’m no fan of Trump, either. I didn’t vote for him. And while I like SOME of what has been accomplished in the last couple of years, like the tax cuts, the regulatory cuts, and the judicial appointments (I’m not too sure just how much credit Trump deserves for any of that), I am also thoroughly embarrassed by some of his tweets, his buffoonery, and his thoroughly idiotic trade and immigration policies. But he WAS elected President, and the Democrats have no one but themselves to blame for that, putting up a pathologically dishonest, irredeemably corrupt, and utterly incompetent candidate of their own. Trump was a very bad Presidential candidate, but he wasn’t the worst one running in 2016. In that context, the “Resist Trump” movement is just plain embarrassing for the Democrats.

            1. the Democrats have no one but themselves to blame for that,

              Excuse me? Who nominated him to begin with? Certainly not the Democrats.

              Trump was a very bad Presidential candidate, but he wasn’t the worst one running in 2016. In that context, the “Resist Trump” movement is just plain embarrassing for the Democrats.

              Well, I disagree. The phrase “pathologically dishonest, irredeemably corrupt, and utterly incompetent” fits Trump to a tee, well, as does “bigoted, boorish, and ignorant.”

              Yeah. I’m fanatically anti-Trump. No secret here. He merits fanatical opposition.

              1. As opposed to a Demoncrap who wants to take all of our guns and force photographers to film a “wedding” that celebrates that a man likes to sodomize another man?

                1. +1,000,000!!!

            2. Is attempting to secure bilateral free trade idiotic in your view? Unilateral free trade is the way to go?

              What about single-handedly enabling the rise of a communist, imperialist global superpower, all because we were so desperate for private enterprise to save a buck and sell cheap goods by moving industry to China, and meanwhile putting Americans on welfare instead of jobs? Yeah that’s brilliant, right?

              Adam Smith on Tariffs: an Interview

              1. Is attempting to secure bilateral free trade idiotic in your view? Unilateral free trade is the way to go?

                How is what Trump is doing “attempting to secure bilateral free trade?”

                Chinese tariffs are going up.

                There is a decent argument for unilateral free trade, which comes from Bastiat, hardly a radical leftist. He argues that putting on tariffs because other countries do makes no more sense than blocking our harbors because other countries have rocky coastlines.

                1. Bastiat made a similar argument, but the rocks analogy is from Robinson, although she might have taken it from Sir William Beveridge, I can’t tell.

                2. Trump has shown repeatedly that what he is seeking is repeal of tariffs and similar barriers.

                  Every country in the world other than the US loves tariffs and other barriers to protect their interests, and they love the US NOT having such barriers, and they love doing trade with the US under these circumstances.

                  Curiously, not one of these countries got the memo. You know, the memo from certain select “free trade” economists and special interest lobbyists, which the US political establishment suspiciously claims to accept as gospel.

                  Sure is weird. Can’t we just circulate the memo? Then surely all of the other countries would see the light and understand what the US knows and what they’ve all been just totally missing.

                  1. “…and they love doing trade with the US under these circumstances.”

                    Do you have any idea why this is?

                  2. Trump has shown repeatedly that what he is seeking is repeal of tariffs and similar barriers.

                    No he hasn’t.

                    He doesn’t have the slightest grasp of foreign trade, as evidenced by, among other things, his claim that the US is “losing” because we have a trade deficit.

                    Look, your man is an ignoramus, on this and many other matters.

                    1. You’re denying plain and simple facts, bernard. You’re an ignorant fool.

                    2. You are 100% wrong!! On 2 occasions with world leaders at these BS G Conferences Trump said to all of them, “Why do we need tariffs at all?”….Nobody really answered his question….As long as we have them, he is going to try & make them as fair as possible for the USA!

                    3. Oh. On two occasions he made an offhand comment.

                      Nothing else matters, I guess. Another Trumpist true believer.

                    4. M.L.,

                      What facts am I denying?

                      Given your comments here, you should be wary of calling other people ignorant fools, since there is ample evidence you yourself are in that category. Or maybe, more charitably, you should simply be considered someone whose Trump-worship has caused him to lose his senses.

                  3. I look at it this way: As long as the world’s reserve currency is the US Dollar, I would not tip the boat too much & accept slightly higher tariffs than we are charging them!

                    The only difference between the US & Greece is we own the $ printing press!

                  4. “and they love the US NOT having such barriers, . . .”

                    Have you got your head buried in the sand? The US is, and has long been, a fellow sinner when it comes to trade barriers. American consumers (and manufacturers which use sugar) have long paid over DOUBLE the world price for sugar, all to provide big profits to about 8 families which control US sugar production. And this was not imposed in retaliation for some alleged trade misconduct by some other country; no, this is just good old fashioned crony crapitalism, corruption bought and paid for by American sugar producers. And sugar is not alone. Look up the trade barriers for foreign grown avocados, purchased by California avocado growers, and for almond, purchased from corrupt politicians by California almond growers. If you believe that Trump is actually a free trader at heart, or that the US is as pure as Caesar’s wife when it comes to trade barriers, you are deluding yourself.

                  5. Trump has shown repeatedly that what he is seeking is repeal of tariffs and similar barriers.

                    That is a lie.

                    It is also irrelevant, for the reasons stated above.

              2. I think unilateral free trade is the way to go.

                1. NAFTA was sold to the public on the idea that it would create so much wealth and good jobs in Mexico, that illegal immigration would stop.

                  What a howler that turned out to be!

                  1. NAFTA was originally thought up by Ronald Reagan in his 1980 (1979) campaign, in which he proposed a North American common market (comparable to the EU’s predecessor EEC). I don’t recall it having anything to do with reducing immigration from Mexico, although I don’t doubt that someone, somewhere, said something like that, or something. Certainly I don’t remember that being how it “was sold to the public” on that basis.

                    Consider that you and Bernie Sanders have the same position on free trade.

          2. DJ
            2. Pot is legal in Cal. No dealers necessary.
            1. I absolutely do challenge your assertion that there has been a rabid AND idiotic anti-Trump movement. Rabid? Of course. But for the most part, not idiotic. He has good ideas and bad ideas. Like all presidents. But he is a pathological liar and I think that is very very dangerous. He appears to also be a criminal, and I do not love the idea of any president being above the law. I think that if we Republicans had showed a little more integrity and a little more backbone, and had stood up to Trump during the worst of his behavior(s), then I suspect that Democrats would not have been so rabid . . . and would not have had to have been so rabid. But with Mitch McC whoring himself in the Senate, and with Republican house lickspittles front-and-center while R’s were still running the house . . . I totally get why Dems are so outraged.

            [Disclosure: I financially contributed to Trump during the primary phase, so I can’t be called a Never-Trumper. But it’s fair to put me into the “Not-a-Never-Trumper…but-definitely-a-never-again-Trumper.]

            In what ways are people equating Trump to Hitler? I’m sure there are some on the fringe. But can you link to comments from regular Democrats that support this? Sounds like a strawman argument to me.

              1. Be a little more careful, A.L.

                Clyburn is comparing the rhetoric Hitler during his rise with the rhetoric Trump uses against immigrants.

                Over the top? Yes. But there is no claim he is sneding people to death camps.

                1. (Rolls eyes)….

                  Sure. I’ll “be more careful” in giving examples that directly say what I mean. Like I did.

            1. You know, there’s a saying that, in politics, where there’s smoke there’s usually a smoke generator. I think that’s the case here. Trump looks like a criminal because he’s had an enormous smear machine directed at him since he first declared for President.

              I say this because he’s been through a 2 year vetting by an independent counsel with a huge budget and a shortage of scruples, who came up empty. Yes, empty: I don’t believe for a moment that Mueller would have used that DOJ policy excuse to not directly accuse Trump of crimes if he’d found any he thought he could prove. He just did that to keep the narrative going.

              Just like he ignored Barr’s direction to highlight the grand jury material in his report, so that it would be suspiciously held up a couple weeks instead of being immediately released. Just like he ambiguously complains about Barr’s summary, but refuses to identify anything wrong. Just like he says he won’t testify, because he doesn’t dare go under oath himself.

              Everything Mueller did looks to me like a guy who was shown the man, and then frustrated he couldn’t find the crime, so he sets out to make sure it doesn’t look like the vindication it was.

              Yeah, Trump lies a lot. Not as much as claimed, (That list of “10,000 lies” put out by the WaPo is a joke.) but more than I like. Are we pretending here that the “If you like your policy, you can keep it.” administration was a font of truth?

              1. Your discussion of Mueller’s investigation, report, and subsequent behavior can only be described as demented.

                You choose, arbitrarily, not to believe anything he says because you don’t like his conclusions. It is DOJ policy, you know, and everything we know about Mueller suggests he wouldn’t violate it, but you, the Omniscient Bellmore, know better.

                Your comment is borderline “Indians not taxed.”

                1. My discussion was based on statements Barr made in an interview last week. For instance:

                  “JAN CRAWFORD: Was there anything that would’ve stopped him in the regulations or in those…that opinion itself, he could’ve — in your view he could’ve reached a conclusion?

                  WILLIAM BARR: Right, he could’ve reached a conclusion. The opinion says you cannot indict a president while he is in office but he could’ve reached a decision as to whether it was criminal activity…”

                  Mueller is a free man. If he wants to publicly dispute any of this, he can. So far he’s been quite ambiguous about doing it, and seems determined to avoid being put under oath and questioned.

                  I’m drawing conclusions from that.

                  1. “Statements Barr made?!!”

                    The man is a known, established, Trump lickspittle. he has repeatedly lied about the content of the report. No wonder you believe him.

                    Mueller has been clear. The policy prevented an indictment – not even Barr denies that – and he felt, rightly or wrongly – that it would be unfair to state explicitly that Trump had committed a crime when there was to be no indictment or trial. That’s plain enough for anyone except a member of the Trump Can Do no Wrong school, like you.

                    “Came up empty.” Ridiculous.

              2. “…where there’s smoke there’s usually a smoke generator. I think that’s the case here.”

                Did you say this about Hillary Clinton?

              3. Are we pretending here that the “If you like your policy, you can keep it.” administration was a font of truth?

                Yet another reliable chestnut to defeat all anti-Trump arguments, in Bellmore World at least.

            2. “He appears to be a criminal”….A multi-billionaire who made his fortune in NYC real commercial real estate would be hard pressed not to get some help in bending the law here & there with the NYC Govt, mafioso…But, Trump has been doing this a loooooong time, he has always handed in his taxes & his sprawling empire has been closely checked several times before he was prez, but now all of a sudden he is a big time money-laundering fraud?…I ain’t buying it!

              1. I think you mean “alleged multi-billionaire.”

                1. No, we mean actual multi-billionaire.

                  Look, I sort of understand the urge to deny that he’s a billionaire. It’s pleasant to think that people you don’t like are just comprehensively awful, rather than complex individuals.

                  So, on a purely psychological level, it’s understandable that people who don’t like Trump’s policies, or that he had the nerve to defeat a Democratic candidate, want to think that he’s stupid, a bad businessman, has BO, is functionally illiterate, has dementia, and so forth. The list goes on and on.

                  But as pleasant as it is, it’s an intellectual vice. Trump actually IS a billionaire. Get over it.

              2. he has always handed in his taxes

                There is considerable doubt about that.

                A multi-billionaire who made his fortune in NYC real commercial real estate

                A man who was handed about $400 million by his father and maybe managed to make about as much in real estate, during years when NYC was booming, as he would have had he just put it in Treasury bonds.

          3. If you’ve been watching how liberal democracies die around the globe, you’d be worried by Trump’s actions, too.

            He may not be a genius but – as it turns out – a great many of the worst dictators in the 20th century were total morons.

            Here’s hoping you don’t come to regret your ignorant complacency.

            1. A nation can survive an idiotic leader. Many have before, and many will again. Trump was an idiot. But he was democratically elected.

              Surviving a movement so dedicated to removing such a leader that they bend and corrupt the laws, morals, and customs of the country? That way leads to the death of democracy.

              1. “Christopher Steele, the lawyer from Perkins-Coie is on line 3.”

        2. (1) Do you seriously deny that the last 2-1/2 years have showcased an “idiotic and rabid anti-Trump Resistance”?

          “Rabid?” If you mean fierce, then yes.

          “Idiotic?” No. Well-justified. I mean, his policies range from stupid to inhumane to corrupt.

          1. “ I mean, his policies range from stupid to inhumane to corrupt.”

            When did the conversation turn to Obama? Just kidding, but don’t you see the idiocy in your position? Anyone with whom you have policy disagreements justifies fierce opposition, even to the extent of dishonest character assassination of anyone who agrees with him. Is that really the political dynamic that you want going forward? Because if so, the next Democrat elected as President (if there is one; it sure doesn’t look like the 2020 crowd of Democratic ass clowns is going to make room for a rational candidate) can look forward to a living hell.

            1. No. Not anyone. But it’s not “dishonest character assassination” if it’s true. Even you have expressed an intense personal dislike for Trump. I presume you do not consider him a man of high character.

              Besides, you apparently think your character attacks on Hillary Clinton are justified. You refer to the current set of Democratic hopefuls as “ass clowns.” Many here have attacked Obama’s character, so what you threaten is already reality. Remember “swift-boating,” and bandaids with purple hearts inked on them?

              The Republican party, and conservatives in general, have a lousy record of treating their opponents with respect.

              1. “Many here have attacked Obama’s character, . .

                It’s not character assassination if the attacks are true. Obama lied CONSTANTLY, to the American people (“If you like your plan, you can keep your plan”), to Congress (like hiding the side agreements on the Iran nuclear deal when he was obligated to disclose them as a condition of Congressional approval), to pretty much everyone. And yes, I think my characterization of Hillary as dishonest, corrupt and incompetent is entirely accurate. Unlike the Democrats attacks on Bret Kavanaugh or William Barr.

                1. (“If you like your plan, you can keep your plan”)

                  Amazing how you guys keep dragging that one thing out.

                  As for Kavanaugh and Barr, well, we just have to disagree. Both are pretty plainly liars, IMO, with Kavanaugh actually being a perjurer. If you think Barr’s statements about the Mueller report are accurate, you can’t read.

        3. You didn’t answer my question, but I’ll do you the courtesy: (1) I deny that there’s anything unusual about the vehement anti-Trumpism versus the anti-Obamaism or anti-Bushism before it. Or anti-Clintonism before that. The only difference is that all three of those Presidents enjoyed much more popularity than President Trump, but I guess you’d just use his unpopularity to prove your point.

          Now will you answer my question?

          1. The big difference is the MSM, Hollywood,& Academia protected Obummy & HildaBeast…Obummy was more of a War Criminal than Shrub #2 & he weaponized the IRS against his political opponents & unlike Trump he actually went after journalists he did not like to silence them….HildaBeast was way worse than Condi Rice & on & on..Heck, Libya lies in ruins because of her lies!

            If a GOP Sec. of State turned the State Dept. into a Personal Foundation State Dept., used a private e-mail to hide all the greedy, corrupt lawlessness & then when found out deleted all the evidence, you think they would’ve gotten a pass like she did???

  2. Since the Congress has failed to take proper action on illegal immigration under either Democratic Party or Republican Party domination, the President has little choice but to defend the nation with whatever statutory powers the Congress left laying around.

    Members of Congress like this just fine – they are not responsible for the President’s actions in the eyes of the constituents. However, a lot of Republicans are going to be watching to see which of our “representatives” actually care about defending our nation and which do not. The border crisis, and Trump’s win should have awakened some to the fact that all is not well and that a lot of us are fed up with inaction.

    While I don’t like a unilateral executive, I can hardly shed crocodile tears at this action, given past history and the failure of several past presidents and Congress.

    1. Whether or not one likes the current immigration situation, it is by no stretch of the imagination either a threat to national security or an emergency. The President is entirely out of line in declaring an emergency.

      1. With over a hundred thousand illegal immigrants a month, children being “rented” to assist in crossing the border, and children dying…

        Sounds like a emergency to me.

        1. As one commenter never fails to remark:
          It’s only an emergency to the extent that the federal government refuses to set up an infrastructure (see, “Ellis Island”) for absorbing 1 million immigrants a year.
          This problem could be easily solved if there existed the political will to solve it.

          1. Congress refuses to set up the infrastructure, because they actually prefer illegal aliens.

            For the Democrats, illegal aliens swell the numbers for apportionment, without actually getting to vote themselves.

            For the Republicans, they’re easy to intimidate employees who can be underpaid and cheated, because you might report them to ICE if they objected.

            For both parties, making them legal has downsides, aside from it being political suicide.

          2. To give an idea of the scale:
            The Bankruptcy Courts handle about 7-800 thousand cases a year.
            We already have some immigration courts in place. It would not be hard to expand the current system to equal the size of the bankruptcy system.

  3. Is there no need for the President’s action to be related to the alleged emergency? Even if there is an immigration emergency, there is certainly no trade emergency. Can the President do anything at all in order to coerce Mexico to prevent people from presenting themselves to the US as refugees?

    Another legal issue: since what Trump wants Mexico to do would violate international humanitarian law, does he have the power to do it? And if US law permits him to, would he be committing a crime under international law?

    1. Why would having Mexico have a safe third country status agreement with the US break international humanitarian law?

  4. There are a series of commonsense solutions that could be made here.

    1. Make it illegal to “rent” children to assist in crossing the border, enforced with harsh penalties for both parties.
    2. Revise the current loopholes in the law that mean that families cannot be held together until their asylum hearings.
    3. With #3, greatly increase the number of facilities for holding families until their asylum hearings.
    4. Crackdown on those who smuggle people across the border, in cooperation with Mexico, with a focus on those who smuggle children.
    5. Revise the “credible fear” definitions, to remove domestic abuse and non-government criminal activity from these categories for asylum.

    1. So…

      Put more kids in prison indefinitely, arbitrarily decide that some categories of refugees aren’t entitled to asylum (i.e., just the ones who are seeking it right now), and wave our hands over a non-issue.

      1. Saving children’s lives is a non-issue?

    2. 1. Make it illegal to “rent” children to assist in crossing the border, enforced with harsh penalties for both parties.

      Also, ban the indiscriminate slaughter of unicorns, as long as we’re eliminating imaginary things.

      1. So, you’re saying the DHS reports and Washington Post stories are lies? Maybe the Holocaust was made up too?

  5. I’m not actually surprised; Just like his redirecting funds for wall building, I figured he wouldn’t be threatening the tariffs without some plausible statutory basis for the action.

    Despite the insane complaints, Trump has been a remarkably law abiding President so far.

    1. Yeah. Remember when Obama released the Taliban Five without giving Congress notice? Or forked over billions in cash to Iran with midnight airlifted shipments, that Congress…I’m pretty sure they didn’t appropriate that.

      1. The original $400M had been held in trust for Iran in the Foreign Military Sales account so no appropriation would have been necessary since they were not Treasury funds. The $1.3B interest payment was paid out of the Judgment Fund, a permanent appropriation for paying legal judgments and settlements against the United States. It’s fair to argue that a payment of that magnitude deserved a specific targeted appropriation, but the system used was not invented for this one transaction.

        1. Ah, but while it was one transaction, he structured the payments to violate legal limits and reporting requirements. Called it about 13 separate payments, IIRC.

          And the original money was being held in trust to pay judgments against Iran. They were only supposed to get what remained, if any, after those judgments were satisfied.

          IOW, there are reasons previous Presidents hadn’t done that, aside from avoiding financing Iran’s nuclear weapons program. They hadn’t done it because it was illegal

          1. The original money belonged to Iran.

            Quit dragging up these old chestnuts to defend Trump.

            1. The “original” money may have belonged to Iran. The Billions in judgements for victims of Iranian terrorism belonged to the victims. By shipping that money to Iran, Obama effectively ended any chance they had at getting recompense for Iranian terrorism.

              So…taking money from victims to give back to the terrorists. That’s the Obama way.

              1. Armchair, this was all quite thoroughly examined and explained in congressional hearings years ago. There were no outstanding victim claims against the funds because those claims were subrogated to the government after the judgments were paid by Treasury, all according to the Victims of Trafficking and Violence Protection Act of 2000 (Public Law 106-387) which said

                “(c) SUBROGATION.—Upon payment under subsection (a) with respect to payments in connection with a Foreign Military Sales Program account, the United States shall be fully subrogated, to the extent of the payments, to all rights of the person paid under that subsection against the debtor foreign state. The President shall pursue these subrogated rights as claims or offsets of the United States in appropriate ways, including any negotiation process which precedes the normalization of relations between the foreign state designated as a state sponsor of terrorism and the United States, except that no funds shall be paid to Iran, or released to Iran, from property blocked under the International Emergency Economic Powers Act or from the Foreign Military Sales Fund, until such subrogated claims have been dealt with to the satisfaction of the United States.”

                1. Oops, that’s 106-386. The link is to the correct document.

          2. Brett, I’m sure you are aware of the explanations tendered for the structuring (including the report of the Treasury Inspector General). I’d summarize this way:
            1. Payment had to be made in cash because other means of transferring funds to Iran’s central bank had been suspended.
            2. The Judgment Fund Internet Claims System used to request certification of payment didn’t permit entry of amounts of $100M or more, though there is no limit to the size of an award the Judgment Fund can pay. This was strictly a technical limitation, not a statutory or regulatory limit nor relating to any reporting threshold.
            3. The 14 amounts submitted were aggregated by Fiscal Services into a single payment from the Federal Reserve Bank of New York to De Nederlandsche Bank who converted it into banknotes.

          3. This information has been available for over two years, but still the rumors of structuring persist. I think it is probably due to stale information like the link you provided, that was published before the House committee meetings and six months before the IG report.
            Even so, I would expect that allegations of violating regulations and reporting requirements would identify the regulations and requirements that were violated. Tom Blumer’s explanation of Operating Circular No. 3 doesn’t fit the bill, as he misunderstands what “handle as a cash item” means. It is a common banking term, and OC3 describes how the Fed handles deposited instruments, e.g. checks and money orders, whether it immediately credits the payee (a “cash item”) or hold the funds pending clearance (a “non-cash item”). It does not concern withdrawals or special rules around handling currency.

    2. Congress refuses to fund something for budget after budget. We have midterms with the president’s issue heavily featured and his party suffers massive losses. The president then shuts the government down in a snit, and Congress still denies funds for his vanity project. The standoff ends on the promise of negotiations, but Congress refuses to budge on his funding request.

      So Trump declares a faux-emergency, flouting the appropriation authority of the legislative branch in a way never before seen. “Remarkably law abiding”, huh? Sure – if you don’t count anything and everything, obstruction of justice included….

      In times like these we can only hope for the famously non-partisan Professor Bernstein to bring out : “Lawless: The Trump Administration’s Unprecedented Assault on the Constitution and the Rule of Law”

      God knows when that’ll happen though. Last I saw, Bernstein was obsessed with proving the Irish White…..

      1. “Congress refuses to fund something for budget after budget. We have midterms with the president’s issue heavily featured and his party suffers massive losses. The president then shuts the government down in a snit, and Congress still denies funds for his vanity project. The standoff ends on the promise of negotiations, but Congress refuses to budge on his funding request.”

        So…you mean DACA?

      2. Trump supporters seem to glide right over that “except for the dozen times he obstructed justice” to get to “Man, this guy is really law-abiding.” Not to mention being an (unindicted) co-conspirator in New York, apparently committing massive tax frauds, loan frauds, etc etc etc.

        Etc, etc, etc, etc, etc, etc, etc, etc, etc, etc, etc, etc, etc, etc, etc, etc, etc, etc, etc, etc, etc, etc, etc, etc, etc, etc, etc, etc, etc. (And that’s only the criminal stuff…we haven’t even talked about the super-unethical stuff like cheating students at his “university,” lying and cheating investors at various Trump properties, screwing over contractors and subcontractors who worked on his properties.)

        For the Trump fans hysterically and happily screaming, “Lock her up”–at umpteen rallies–about a Trump political rival who was never even indicted . . . the irony of reflexively defending this guy is so thick you could cut it with a knife.

        1. Aside from the dozen times it was implied that he obstructed justice, if you use novel legal theories that the DOJ hasn’t actually adopted.

          1. Never mind what, what is it, 1000 former federal prosecutors say. They don’t know Bellmore Law. Or they’re lying, or got bribed, or something.

  6. Post calls for “a 15- or 30-day ‘sunset’ provision that will nullify the presidential actions unless during that period Congress approves them via legislation, by majority vote in each chamber”.

    No lawyer I; but would this run afoul of the Supreme Court’s ruling in INS v. Chadha? It seems like Post’s sunset period would give either house a de facto legislative veto, of the sort that the Supremes rejected.

    1. Professor Post was being a little inexact here. If the law is changed so that presidentially declared emergencies can only be temporary, the President would indeed need to sign legislation extending the emergency, as required by Chadha. But since he’s the one who declared the temporary emergency, if Congress approves an extension it seems reasonable to assume he would sign.

  7. Tariffs are a form of tax. Art. I, Sec 8.1, of the Constitution assigns to Congress the authority to levy taxes. Art. I, Sec. 7.1, requires all bills for raising revenue to originate in the House. Isn’t it time to hold that delegating the taxing power to the Executive is a bridge too far?

    1. The courts don’t care about requiring that revenue bills originate in the House, they’ve ignored that requirement for decades. And the law Trump used was at least as House originated as the ACA.

      IOW, would it be nice if the courts started upholding all these constitutional provisions that Trump and every other President in my lifetime has violated? Sure. Not likely to happen.

      1. True, but in other areas we have seen the Left ready to upend established precedent and norms because “It’s Trump.” (Example: Obama violating law to establish DACA was A-OK; Trump abolishing the illegally-created DACA program somehow violated the Administrative Procedures Act). Maybe a window of opportunity is opened here.

        Besides, delegating to the President the power to temporarily cut off immigration from specific countries is one thing. Delegating the power to impose taxes should strike even the most fervent believer in the “unbound executive” as too much.

        1. There was absolutely nothing illegal about DACA and you need to stop raving about it.

          It’s Fox BS, like Iran.

          1. And there was no judicial basis to hold that repealing DACA was “arbitrary and capricious.”

  8. Because of the Constitution’s express assignment of authority to raise revenue to Congress, with specific mention of revenue bills originating in the House, it could be argued this authority cannot be delegated to the President. It could also be argued that any delegation of this authority, even if permissible, must be explicit, and not implied. Revenue is a separate power from regulation of foreign commerce. Delegation of one power does not necessarily imply delegation of the other.

  9. I still think a court will stop the tariffs because of the emergency declaration.

    Where is there an, “unusual and extraordinary threat … to the national security, foreign policy, or economy of the United States?”

    1. Where is there an, “unusual and extraordinary threat … to the national security, foreign policy, or economy of the United States?”

      Oh, I don’t know, the millions of invaders assaulting our southern border, attempting to force entry into the United States and occupy it?

      1. I meant a real emergency, not the one in your head.

        1. Have you seen the numbers for border apprehensions?

          144,000 in May, third month in a row with 100K+, 610,000 total for 5 months.

          1. Hmmm…sounds like we have an effective force in place, so again, where’s the emergency?

          2. I’ve seen the numbers for the US Border Patrol. Where did you get your numbers? It appears to me that you’re also counting inadmissibles, rather than just apprehensions.

      2. Not “invaders.”

        Not armed, not a military or paramilitary force, not trying to conquer territory or occupy it.

        1. “Armed” is not any more a part of the definition of “invaders” than “military” is, which is why “armed invaders” or “military invasion” are not redundant.

          Invading consists of entering a territory contrary to the will of the controlling entity.

  10. Trump is claiming the IEEPA as his authority? The IEEPA is not a bill to raise revenue. Trump is using it to raise revenue. Trump has no independent authority to raise revenue. Trump is bypassing the House of Representatives. How can this stand up in court?

    1. Stephen, that is the most ridiculous, twisted piece of logic I have seen from you. I think the technical term for it is a syllogism.

      You say that because Trump’s pressuring of Mexico via tariffs has the side effect of generating revenue, that he can’t do that because the executive can’t generate revenue.

      You are too much!

      1. Seems sensible to me, Publius. Trump is generating revenue by taxing mostly Americans, not mostly Mexicans. Taxing Americans is what the House is supposed to initiate.

  11. A Post post that is reasonably calm. Amazing.

  12. Here’s a counter-argument.

    “There may be good policy in retaliations of this kind, when there is a probability that they will procure the repeal of the high duties or prohibitions complained of. The recovery of a great foreign market will generally more than compensate the transitory inconveniency of paying dearer during a short time for some sorts of goods. To judge whether such retaliations are likely to produce such an effect, does not, perhaps, belong so much to the science of a legislator, whose deliberations ought to be governed by general principles, which are always the same, as to the skill of that insidious and crafty animal vulgarly called a statesman or politician, whose councils are directed by the momentary fluctuations of affairs.

    — Adam Smith

    1. Maybe include the full quote. First, Adam Smith was very skeptical that this argument would work, see the preceding paragraph to the quoted portion discussing the failures of trade wars with France, the Dutch, etc.

      Then cut to the remainder of the paragraph that you’ve omitted:

      “When there is no probability that any such repeal can be procured, it seems a bad method of compensating the injury done to certain classes of our people, to do another injury ourselves, not only to those classes, but to almost all the other classes of them. When our neighbours prohibit some manufacture of ours, we generally prohibit, not only the same, for that alone would seldom affect them considerably, but some other manufacture of theirs. This may no doubt give encouragement to some particular class of workmen among ourselves, and by excluding some of their rivals, may enable them to raise their price in the home–market. Those workmen, however, who suffered by our neighbours prohibition will not be benefited by ours. On the contrary, they and almost all the other classes of our citizens will thereby be obliged to pay dearer than before for certain goods. Every such law, therefore, imposes a real tax upon the whole country, not in favour of that particular class of workmen who were injured by our neighbours prohibition, but of some other class.

      You can see from the quote that the trade war (however pointless) can only be carried out by the “insidious and crafty animal” because the costs will be passed on to “other classes”. In 1776, when he wrote that, we can imagine which classes he had in mind.

      1. “When there is no probability that any such repeal can be procured”
        vs
        “when there is a probability that they will procure the repeal of the high duties or prohibitions complained of.”

        That seems to be the beginning and end of our discussion on this particular point.

        There are several other tariff-related points addressed by Adam Smith here. And, scroll to the bottom for a link to Adam Smith quotes selected by someone coming from the opposite viewpoint.

        1. If you read the entire quote, you would see that Adam Smith was expressing his skepticism that “there is a probability that they will procure the repeal of the high duties or prohibitions complained of”. That’s why he used the France/Dutch examples.

          The quotes you’re relying on are intentionally cherry-picked to give the reader the impression that Adam Smith was a fan of tariffs. He wasn’t.

          For example, from the quote:

          “Were those high duties and prohibitions taken away all at once, cheaper foreign goods of the same kind might be poured so fast into the home market, as to deprive all at once many thousands of our people of their ordinary employment and means of subsistence. The disorder which this would occasion might no doubt be very considerable.”

          Notice “very considerable” does not mean “prohibitive”. And the words left out after considerable are important:

          “It would in all probability, however, be much less than is commonly imagined, for the two following reasons…”

          What the cherry-picked quotes leave out are the unequivocal statements about the benefits of free trade:

          “If a foreign country can supply us with a commodity cheaper than we ourselves can make it, better buy it of them with some part of the produce of our own industry employed in a way in which we have some advantage.”

        2. But let’s keep working from the cherry-picked quotes in your link…

          The third quote has to do with “leveling the playing field” of domestic industry when there is a domestic corporate tax. Smith’s idea was that domestic taxation on industry may call for a concomitant increase in taxation on foreign goods (through tariffs) to keep the domestic and foreign goods on equal footing domestically. Some of this was intended to placate “the clamorous complaints of our merchants and manufacturers that [their goods] will be undersold at home”. And as Adam Smith noted, the usual tendency was not that an equal tax was laid, but that “a much heavier duty upon the importation” was laid, because of domestic squabbles. In this way, he was signaling, again, that politics always outran sound economic policy.

          But there’s a bigger problem with using Adam Smith’s argument to support tariffs in the context of the corporate tax rate. He was talking generally about taxation on domestic industry, and why that called for an equal tax on foreign importation. How can this justify tariffs against China and Mexico? Both those countries (Mexico 30%, China 25%) have higher corporate tax rates than the United States (21%, although some states also impose corporate taxes), so their foreign goods are already less competitive here. If anything, Smith’s argument would thus justify protectionism by China and Mexico but not the United States, which can’t be what the author (or you) have in mind.

        3. The fourth quote has a very subtle omission (without any ellipses to note that the author has altered the original text). “The Act of Navigation very properly endeavours…” A critical “therefore” is left out: “The act of Navigation, therefore…” The therefore refers to a particular type of industry (those “necessary for the defence of the country”). So whether you think the Jones Act’s protectionism is a good idea will depend on whether you think the national defense really requires the same thing today, that it did in 1920. Economists have been calling for its repeal for decades.

          Important note on the Navigation Act. When Adam Smith wrote An Inquiry into the Nature and Causes of the Wealth of Nations, he would not have known how the American War of Independence would end (and probably didn’t even know America had declared Independence). It was one of the arguable causes of the American revolution, which resulted in a rather high price for Great Britain to pay for protectionism. And Great Britain repealed the Navigation Act in favor of free trade after Adam Smith died (but before the US foolishly followed course with the Jones Act).

          1. The fifth quote is just a reference to the same subject, national defence. In this case, the author is supporting steel tariffs. As does the President, following his Commerce Secretary’s suggestion that an noncompetitive American steel industry will harm us, somehow. Over broad steel tariffs are not supported by the DOD, though, as they prefer targeted ones. It seems nonsensical to suggest that the American military apparatus depends on a healthy domestic steel industry, when a tiny fraction (3%) of US production goes to defense needs.

            From my perspective it is rather obvious that we should want China to pump the market full of cheap steel, since that amounts to subsidy by China, to the world, paid for by Chinese tax payers. If we can get cheaper steel because the Chinese government supplies the steel below cost, why not???

        4. Selecting historical citations from a particular modern viewpoint is one reason orginalism is off the rails.

      2. The sixth quote… It’s in reverse. The “High taxes” portion precedes it in your article, but is clearly after the second half of the quote “By removing…” in the original text. The “By removing” quote comes from a paragraph about England using high foreign taxes (on wines, brandies, American tobacco, sugar, rum, etc.) which did generate significant revenue. But Smith was pointing out that the tax was imposed “for the purpose, not of revenue, but of monopoly, or to give our own merchants an advantage in the home market.” The “all prohibitions” he was talking about was the higher import taxes on foreign goods. He was noting that you could generate more revenues from decreasing taxes on foreign goods, because you could increase consumption of those goods. It’s just Smith’s version of the Laffer Curve, applied to tariffs.

        I guess the point Platts was trying to make was that moderate tariffs can generate revenue, attacking what he perceives to be a very weak anti-protectionism argument. But Smith wasn’t arguing necessarily that tariffs will result in significant revenue. Rather, he was arguing against tariffs as a source of revenue, encouraging less taxes because high taxes did not, in practice, generate significant revenue.

  13. But putting aside the constitutional questions, one has to hope that at some point Congress will return to its senses and re-assert its fundamental law-making powers by either repealing or, perhaps more sensibly, providing for a 15- or 30-day “sunset” provision that will nullify the presidential actions unless during that period Congress approves them via legislation, by majority vote in each chamber.

    Now go read the Jamie Bouie op-ed in the NYT and see just how badly misinformed the above comment appears to be.

  14. […] “Trump’s Legal Authority to Impose Tariffs,” by David Post […]

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