Free Trade

Trump's Attorney Concedes: His Legal Theory Would Let a President Tax Foreign Cars To Combat Climate Change

Justice Neil Gorsuch got Solicitor General D. John Sauer to admit one "likely" outcome, if the Supreme Court upholds Trump's tariffs.

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Donald Trump | CNP/AdMedia/Newscom
(CNP/AdMedia/Newscom)

If the Supreme Court upholds President Donald Trump's sweeping emergency tariff powers, a future president could slap huge tariffs on gas-powered cars and other goods that emit carbon.

That's not speculation. It's the conclusion of the Trump administration's own attorney during Wednesday's oral argument at the Supreme Court.

Trump has invoked the International Emergency Economic Powers Act (IEEPA) to impose tariffs on nearly all imports into the United States—even though the law has never been used for tariffs before. The "emergency" that underpins the tariffs is twofold. Some of the tariffs (those on goods from Canada, Mexico, and China) have been imposed as part of an attempt to counter the flow of fentanyl into the United States, while other tariffs are the White House's response to trade deficits, which it calls an "unusual and extraordinary threat."

Reasonable people might disagree with the notion that any of that should be considered an emergency. It's particularly weird, for example, that some of the tariffs supposedly meant to combat the threat of trade deficits have been applied to imports from countries with which America runs a trade surplus.

As a legal matter, however, that is largely besides the point. The president has broad authority under IEEPA to declare any "emergency" that he sees fit. The key question before the court is whether the law allows tariffs to be imposed once an emergency has been declared.

So what would happen if a future president decided "climate change" was a unique and extraordinary threat?

"Could the president impose a 50 percent tariff on gas-powered cars and auto parts to deal with the 'unusual and extraordinary' threat…of climate change?" asked Justice Neil Gorsuch.

"It's very likely that could be done," admitted Solicitor General D. John Sauer, who argued the case for the Trump administration.

"I think that has to be the logic of your view," responded Gorsuch.

Here's the exchange in full:

Sauer goes on to say that, in the hypothetical, those tariffs would be "a question for Congress."

That's exactly what he has to say, because that's the line the Trump administration is taking here: Congress has the authority to upend the IEEPA tariffs if it chooses (so far it has not done so), but the courts cannot rule the actions unconstitutional or unlawful.

Yes, this is just a hypothetical, but it's not a very far-fetched one. Recall that the Biden administration reportedly considered declaring a so-called climate emergency that could have involved halting crude oil exports and blocking new fossil fuel projects. Could tariffs imposed under IEEPA have been part of the mix? That's unclear, and thankfully, we never had to find out.

The better question is whether you would trust a future President Gavin Newsom or Alexandria Ocasio-Cortez to avoid deploying this power, once Trump fully unlocks it.

Lots of Republicans will be upset if the Supreme Court strikes down the tariffs, because partisanship is seemingly all that matters these days. If that happens, they should remember that limits on executive power are good for America—and good for the conservative vision of America. If Trump gets what he wants when it comes to tariffs, it will open the door for a whole lot worse.