President Trump's Reduced Tariff/Taxes Are Still Unconstitutional

We need a district judge to enter a nationwide injunction putting a stop to these huge unilateral, presidential tax increases on ordinary working-class people.

President Trump blinked today after his "Liberation Day" tariff/taxes catastrophe led to the worst S & P stock market performance for the start of a presidency since George W. Bush's first term. Trump reduced his blanket tariff for most nations to 10% (for 90 days) while raising tariff/taxes on imports from China. Tariff/taxes remain on imports of steel and aluminum and on trade with Canada and Mexico. Consumers will soon see rapidly rising grocery market prices for fruit and vegetables because of the Mexico tariff/taxes, and consumers will see the price of televisions, electronics, and iPhones skyrocket because of Trump's tariff/taxes on imports from China.

The U.S. Constitution gives Congress the power to impose tariff/taxes in Article I, Section 8, clause 1, and it gives Congress the power to regulate commerce with foreign nations in Article I, Section 8, Clause 3. Trump incorrectly claims that Congress has delegated that power to him under the National Emergencies Act (NEA) and the International Emergency Economic Powers Act (IEEPA) by declaring multiple "national emergencies" related to border security; the hollowing out of the United States' manufacturing base; the existence of trade deficits; and the threat posed by rising Chinese power, which Americans have known about since President Obama wisely pivoted U.S. security concerns to China fifteen years ago.

Webster's Dictionary defines "emergency" as follows: "1: an unforeseen combination of circumstances or the resulting state that calls for immediate action; 2: an urgent need for assistance or relief." The problems President Trump is concerned about are ones that he has complained of for his whole forty years in public life, and Congress and the American people have known about them for decades. They are not unforeseen threats that require urgent action like a Russian or Chinese nuclear attack on the United States, nor are they problems in need of such urgent relief that Trump can address them while bypassing Congress. The statutes Trump invokes, NEA and IEEPA, were passed in the 1970's to curtail presidential claims of emergency power, not to broaden such power.

The Supreme Court should narrowly construe the "emergency power" these statutes grant to the President, to avoid the conclusion that Congress has delegated its taxing power to the President. I know that in Trump's mind trade deficits are an "emergency" because he thinks they are really a big problem, but that is not what the word "emergency" in NEA or IEEPA mean. Congress has long known about the problems but so far declined to deal with them by raising tariff/taxes because doing so will raise inflation, throw the U.S. economy into a depression, crash the stock market, and hurt American farmers and others who depend on exports to make a living and who will be hurt by the retaliation of foreign nations to the unilateral presidential raising of tariff/taxes.

In four cases during the Biden Administration, the current U.S. Supreme Court held that when presidential action under ambiguous statutes raises "a major question" the President cannot act on it unilaterally without getting congressional approval. First, the Court held Biden could not redefine the word "pollutant" to include carbon dioxide emissions to unilaterally enact a trillion-dollar climate change policy. Second, the Court held that Biden could not unilaterally forgive billions of dollars of student loan debt because of an imaginary terrorist threat. Third, the Court held that Biden could not require workplaces covered by OSHA to force their employees to get COVID vaccines whether they wanted them or not. And, fourth, the Court held Biden could not by presidential order suspend the right of landlords to evict tenants who did not pay their rent because of the COVID emergency.

Conservatives hailed these "major question doctrine" decisions as a crucial step in reining in an imperial, and indeed lawless presidency. Now President Trump is copying a page from Joe Biden's imperial presidency playbook and invoking something that is not a genuine "emergency" to impose massive tax increases, inflation, and a potential depression on the American people. Federal courts need to put a stop to this presidential power-grab to raise taxes unilaterally on the American people. A Chinese importer has filed a federal lawsuit in the Northern District of Florida to stop the tariffs. The District Judge in that case should issue a nationwide injunction stopping all of Trump's tariff/tax increase, which are nothing less than taxation without representation by We the People's Congress. Congress can then decide, which, if any, of Trump's tariff/taxes it wants to adopt by passing legislation.

The fact that Trump has paused a lot of tariffs for 90 days does not make legal the other tariffs he has imposed unconstitutionally. Almost every day, since his swearing in as President on January 20, 2025, Trump has either imposed or threatened a tariff/tax increase. The Supreme Court should tell him bluntly to cut it out. The tariff/tax increases are usurping congressional power, and need to be stopped.

Comments

[TaioF920]

Another idiotic Wall Street shill. What's the matter? Worried that you won't get invited to some Pesach seder this weekend as the token goy because the hosts are running a little low in filthy lucre from a small drawdown in their portfolios?

[Squire Al]

And another anti-semite bigot heard from.

[Frank Drackman]

Our true Enemy has yet to reveal himself

[Malika the Maiz]

Is it third grade English?

[mulched]

No national injunction. If there's an injunction it should apply only to the party.

[David Nieporent]

Um, the government is the defendant. An order that the tariffs are illegal inherently applies nationwide.

[mulched]

Um, an injunction doesn't declare the tariffs illegal.

[Jett's Pop]

[Noscitur a sociis]

It could, however, be limited to tariffs charged to the named plaintiffs, which I assume is the actual objection (at least from people smart enough to understand the issue).

[mulched]

Thanks! Since that was my objection, I'll take that as a compliment.

[Malika the Maiz]

When idiots pick nits…

[Longtobefree]

"We need a district judge to enter a nationwide injunction putting a stop to these huge unilateral, presidential tax increases on ordinary working-class people."

Excellent sarcastic lead in. But the article failed to follow through.
So I must revert to the wisdom of the old worn out Jedi;
"Everything you just said is wrong".

[Stupid Government Tricks]

Including "and" and "the".

[Stupid Government Tricks]

Yeah, right. Another national injunction, but this time a good one. Principles? No, principals.

Just goes to show how corrupt the Rule of Law really is, when it all depends on finding the right corrupt judge to overrule the other corrupt judges until we get the right Man to interpret the Law.

[Magnus Pilatus, MBA, MD, JD, PhDx2]

Right.

Justice cannot ever be blind when the jurist selection isn't also blind.

[Stupid Government Tricks]

Yes. Better to be variably corrupt than predictably corrupt. That'll fix the problem.

[Malika the Maiz]

Stupid here never heard of Kacsmaryk.

[VinniUSMC]

Only 1 party can fix this. CONGRESS!

Are your degrees printed on toilet paper, by any chance?

[Malika the Maiz]

Guy too dumb to get in the Air Force has all the answers!

[ReaderY]

Tarriffs can be considered as either taxes or tools of foreign policy. They are often both. Which lens one sees them through makes a big difference in the extent to which Congress can delegate authority to the President. It seems to me that Congress’ authority to delegate authority to the President over war and foreign policy matters has historically been practically unlimited.

It seems to me that the statutes the President is invoking, particularly the International Economic Emergency Powers Act, are clearly designated by Congress as addressing primarily foreign policy concerns, not purely revenue-raising concerns. And it seems to me that this designation is entirely reasonable.

So it seems to me the only questions here are statutory. Is there an international economic emergency within the meaning of the statute? Are the President’s actions acually responses to the alleged emergency within the scope of the statutory authority granted? I think the answer to one or both of these questions may well be “No.” But these are nonetheless statutory interpretation questions, not constitutional ones.

[Stupid Government Tricks]

If you only see them through one lens, you may as well close both.

[ReaderY]

Tell that to the Supreme Court.

The Steel Seizure cases are a typical example. About as domestic a matter and as major a question as one can imagine - seizing and nationalizing an entire industry at the President’s discretion - and yet because it involved the War Power, the only question the Supreme Court asked is whether Congress had authorized it. If Congress had given the Presidet authority to seize war-related production plants at discretion, the Supreme Court would have allowed it.

[BBSquatter]

We need a district judge to enter a nationwide injunction....

April 1 was 9 days ago.

[Bob from Ohio]

His investments must have taken a big hit.

[Magnus Pilatus, MBA, MD, JD, PhDx2]

The SPY is down 2% over the past 30 days. The parade of horribles never manifested and the Wall Street shills still crying about the stock market look like fools.

[No One Of Consequence]

SPY is down 8.23% over the past month (as of right this minute). 8.23% is more than 2%. FYI. HTH.

[Bob from Ohio]

"We need a district judge to enter a nationwide injunction"

Courts should only issue an injunction binding in their jurisdiction.

[Noscitur a sociis]

Why?

If a plaintiff in Manhattan gets an injunction against New York enforcing an unconstitutional gun law, should they be subject to arrest anyway as soon as they go to Brooklyn?

A judge in the Eastern District of California issued a preliminary injunction against the state’s (blatantly unconstitutional) “anti-deepfake” law. Should the state have still been able to enforce it against the plaintiff in San Francisco or Los Angeles?

[Bob from Ohio]

Courts issue opposing opinions all the time. Circuit split is a big reason for SCOTUS review.

Two lawsuits are filed, Maryland and Texas district courts. Maryland issues injunction, Texas rules against one. Why should the Maryland one control in Texas?

[Noscitur a sociis]

Why is someone filing two different lawsuits seeking the same relief?

[hobie]

Because SCOTUS told them to?

[Bob from Ohio]

"someone filing two different lawsuits "

I didn't say it was.

But the relief sought was the same. Injunction, against enforcing law X.

[Noscitur a sociis]

I understand (and am tentatively convinced by) the argument that an injunction should only protect the party to the lawsuit that led to its issuing. I don’t understand the argument that it should only be enforceable in the judicial district where it was issued, which would seem to preclude someone from obtaining effective relief in a very high percentage of cases (such as pretty much any one involving the federal government, or any state with more than one district, or, as I noted, New York City).

[David Nieporent]

I mean, I'm not sure if Bob is just trying to end facial challenges entirely or what.

[F.D. Wolf]

In Center for Biological Diversity v. Trump, regarding President Trump's declaration of an emergency on the Southern border, the court held that whether or not an emergency actually existed was a "quintessential political question", unreviewable by the courts. 453 F. Supp. 3d 11, 31 (D.D.C. 2020).

Congress has delegated the power to declare an emergency to the President. If Congress disagrees about the existence of an emergency, it can terminate the declaration, but it has not done so. It is not for a federal judge to substitute his judgment for that of the political branches on the question. Presidents have declared hundreds of emergencies, many of which would not likely fit Webster's definition of an "emergency", yet not once has a federal court presumed to substitute its judgement for that of the political branches to declare no emergency existed. Judicial review is limited to whether the President acted beyond the powers Congress has delegated to him in response to the emergency, but a court has no power to decree that no emergency actually exists.

[ReaderY]

In Duncan v. Kohanamoku, the Supreme Court evaluated whether an invasion was “imminent” in Hawaii or not at the time Kohanamoku was arrested in determining whether the writ of habeas corpus, which the Court said had been validly suspended after Pearl Harbor, remained validly suspended a couple of years later. In doing so, and in finding that no threat existed justifying suspension of the Writ, the Court made it clear that even in matters of war and peace, the existence of an emergency like an invasion threat is a matter for judicial review, not for deference to the President.

Our Constitution and laws grant emergency powers that would be completely inappropriate and a gross violation of rights if used in a non-emergency setting. Why in the world shouldn’t there be a judicial check on the President’s power to declare an emergency on nothing more than a personal say-so? One of the fundamental principles behind our Constitution’s structure is not to leave decisions to use the gravest powers that can greatly impair individual rights entirely in the hands of any single individual.

[Bob from Ohio]

You do not have a "right" to buy tariff free merchandise. habeas corpus deals with personal freedom, the writ is mentioned in the constitution, its just a different color fish.

[Noscitur a sociis]

You do not have a "right" to buy tariff free merchandise.

You have a right not to be subjected to illegal taxes.

the writ is mentioned in the constitution

So are tariffs!

[windycityattorney]

How long until somebody makes a bunch of copies of Trump's executive orders declaring tariffs on Canada, Mexico, China, whatever... and starts ceremoniously dumping them in Boston Harbor whilst dressed as colonial settlers??

Separately; I am curious about the tit for tat raising of the tariffs. If the initial tariff % due to the 'emergency' is set at X to redress the emergency... then a day later its doubled...or tripled...on one country but then eliminated or reduced on other countries... is that evidence that there isn't an actual global emergency? If the tariffs are to fix (repair?) the grounds/reasons which triggered the economic emergency they are meant to address but then are eliminated before they have time to go into effect...does that cut against the existence of the emergency? Can the President's own actions create the grounds for a new emergency for which he is then declaring a new tariff (as concerns doubling or tripling the tariff amount?) I don't know the answers to these questions or if they would be relevant but it all seems rather funky to me.

Clearly, to me it seems obvious the various declared emergencies are pre-textual to do what they want to do anyway (as far as immigration, environment, trade, etc...) and it would be nice if Congress could re-assert itself. I just don't see it happening with a GOP majority that is either happy to give Trump all this authority or are too scared of a failed re-election if they stand up to him. Being held hostage by the leader of their own party must be an awkward position to be in.

[ReaderY]

“No taxation without representation” was particularly important to the Founders. While broad judicial deference to the political branches on foreign policy matters means that the courts will not interfere if Congress delegates certain aspects of its taxing power to the President when foreign affairs are concerned, nonetheless “no taxation without representation” means that the President has to stay within the boundaries of the authority Congress granted and cannot stray outside them. And it is absolutely the job of the judiciary to say what the law is, which here means to interpret the statute and see if the President’s actions fit within it. The President has no discretion whatsoever on tax matters except the discretion Congress specifically grants. So when Congress grants the President authority to set tariffs in an emergency, the President only has authority to act in cases that fit within what the courts determine Congress thinks an emergency is.

[F.D. Wolf]

Congress has the unquestionable power to regulate imports. It has created a statute delegating that power to the President if he declares an emergency. Congress can override the President if it chooses to, but it hasn't. Calebresi &co. get really wound up about tariffs, but that's another issue. (Do you imagine if Trump was using his power to LOWER tariffs that he would post repeatedly about how "unconstitutional" it was? Hell, he'd probably be praising him.) There are no constitutional issues in this case.

[Noscitur a sociis]

Even aside from its completely hypothetical nature, the allegation of hypocrisy is pretty weak here. It’s perfectly reasonable to be more upset about questionable conduct that harms people than questionable conduct that helps them.

[F.D. Wolf]

Wow, what a keen insight into human nature. And by latching on to the one thing I literally put in parentheses, I see you're bucking for top pedant around here, but you're still way behind you-know-who.

[Noscitur a sociis]

(So if you put something in parentheses, people aren’t allowed to criticize it? Good to know!)

[F.D. Wolf]

You're allowed to do whatever you wish. If pedantry is all you have to offer, then so be it. I think you are capable of making substantive contributions to legal discussions, but if I am mistaken, then please accept my apology. You just be you.

[ReaderY]

Let’s just say that whether any given policy helps or harms people is often highly disputed, and people’s views on the matter are often heavily dependent on their political viewpoint.

[Malika the Maiz]

“Congress can override the President if it chooses to, but it hasn't.”

Should it here?

[F.D. Wolf]

I have no strong opinion on that question. But there's a saying that it takes a majority of Congress to delegate some of its power to the President, but 2/3 to take it back, as it would almost certainly require a veto override. Though perhaps, Congress and the President could reach some compromise on the issue.

But, ultimately, I think Calabresi, Somin, etc., are more wish-casting than making sound legal arguments. As noted, there have been hundreds of "emergencies", and no court has ever overturned one, but it's Trump, so who knows. And, as it happens, there is legal precedent, virtually identical to this case, in which a President (Nixon) declared an emergency and imposed a 10% (additional) duty on all imports. The Court of Customs and Patent Appeals (predecessor to the Court of Appeals for the Federal Circuit) ruled that was within the delegated power to "regulate importation". United States v. Yoshida Intern., Inc., 526 F.2d 560 (CCPA 1975).

[David Nieporent]

As noted, there have been hundreds of "emergencies", and no court has ever overturned one, but it's Trump, so who knows.

Trump acts in bad faith in ways that no other president has ever done, so it's not surprising that courts would evaluate his actions differently than those of other presidents.

[hobie]

Taxes schmaxes, Calabresi. Shouldn't we be more concerned about what is obvious, raw, corrupt market manipulation?

[ah....Clem]

You raise an important point, but my take is that we should be more concerned about a global recession and the diminution or US stature than a few day traders making some money off of inside information about when tariffs are going to be announced and when they will be lifted.

That said, the real point of the tariffs is to allow Trump, and only Trump, to decide who gets punished with tariffs and who gets rewarded by granting exemptions from those tariffs. So it's not the "market manipulation" so much as the raw naked bribery and extortion emanating from the oval office Mar a Largo. Insider trading is just the appetizer.

[edbeau99]

Getting the message about misuse of emergency powers by government (as if COVID wasn't warning enough)? We went through this three years ago in Canada, when Trudeau and his Liberal government invoked the Emergencies Act, froze bank accounts and took away everyone's civil liberties because some truckers were honking horns in Ottawa.

[Sarcastr0]

Took away everyone's civil liberties! Zounds!

[Purple Martin]

Since Bretton Woods and the General Agreement on Tariff and Trade, the United States has been at the center of global finance. Simply stated, that's because we have been the safest place to do business in the world. For the last 80 years, year in and year out, America's economic ground rules remained consistent and any needed change, slow and transparent.

Investment is inherently risky—but America had the lowest level of risk on the planet. Our government, legal system, and business community worked hard and in mostly transparent coordination to make that happen, and we reaped tremendous rewards.

In one week, Donald Trump destroyed that 80 years of work. It will not be easily rebuilt. America is now a risky place to do business, a place where the rules change enigmatically from day to day. An America where, like China, no business can trust in the stability of its long-term plans, or count on the good-faith of its economic metrics, projections, and actions.

This abstract problem is going to create real-world hardship. As I said yesterday, no matter what happens—not just over the next weeks and months but over the next four years—damage to the U.S. will be greater and far longer lasting than any 1st-order 2025 financial consequences. Because, for the foreseeable future, no matter who's the next president, our country has demonstrated itself to be incapable of...

• developing and carrying out rational, consistent policies
• establishing trustworthy, lasting international (or even intranational) agreements

So...to producers, consumers, and traders of goods in my strongly import/export state of Washington, the United States, and the World, what are the 2nd- and 3rd-order consequences of such government and economic instability?

Over centuries, over millennia, human society slowly but demonstrably evolves, matures, improves, and ultimately, advances. But such progress is bumpy, coming with considerable backsliding. American recovery from authoritarian Trumpist MAGAism—if it happens at all—will take decades.

If we do recover, history’s view of the 21st century Trump Interregnum will be the same as the its view of China’s 20th century cultural revolution, known as Mao’s Great Leap Forward: two of the worst periods in human history, of a major world power's intentionally-pursued revanchist Decivilization.

As I also said yesterday, now in my 70's, I doubt I'll live to see us fully recover. I hope you will. But it will be sooner if, like Somin, you do what you can reduce the amount of damage instead of giving in to your accelerationist emotions.

[The Turtle Dove]

Interesting argument, but you're missing a rather important detail. If we were to have some sort of non-delegation revanchism on trade, and restore to the democratically elected Congress its rightful pre-Smoot-Hawley levels of discretion with some sort of a charge-of-the-light-brigade Chadha decision of Commerce, there's the slight chance that these tariff decisions might become a bit political in nature.

Mr. D.