The Volokh Conspiracy
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Why the Supreme Court Might Uphold Trump's Tariffs
The Administration's arguments have more doctrinal support than some might think
Last week, in V.O.S. Selections v. Trump, the en banc U.S. Court of Appeals for the Federal Circuit held, 7-4, that the International Emergency Economic Powers Act (IEEPA) did not authorize the Trump Administration to impose broad reciprocal and other tariffs. Next stop: One First Street.
Some seem to think it is virtually certain that the Supreme Court will invalidate some, if not all, of the Trump tariffs. Here at the VC, my co-blogger Ilya Somin has done yeoman's work unpacking the various arguments against the tariffs and responding to counter-arguments.
While I hope these arguments are successful, I believe V.O.S. Selections presents a close question under current law. I explain why in today's WSJ. Here's a taste:
This is the third court ruling against the Trump tariffs, and it's tempting to assume the Supreme Court will make it four. Don't count on it. At first glance, it's hard to conceive how the Constitution could allow the rewriting of tariff schedules on mere presidential say-so. That President Trump's tariffs are bad policy is icing on the cake. Yet under current doctrine V.O.S. Selections v. Trump presents a close case that is likely to divide the justices and could go either way. . . .
Since the Constitution was adopted, Congress has enacted laws delegating responsibility for executing these powers to the executive branch. Supreme Court precedent requires that in granting such authority, Congress must articulate an "intelligible principle" to its exercise. But the justices have never interpreted that as much of a limitation—broad statements of purpose will do. Thus while V.O.S. Selections is an immensely important separation-of-powers case, it is unlikely to be resolved on constitutional grounds. Instead, the case will turn—as it did in the lower courts—on whether Congress granted the president the power Mr. Trump claims. . . .
The whole point of enacting statutes like IEEPA is to give the president broad authority to address emergencies when they arise. While IEEPA provides that such actions may "only be exercised" to address such declared emergencies "and may not be exercised for any other purpose," courts have rarely felt competent to second-guess the executive branch's national-security determinations.
Presidential power is at its zenith in matters of national security and foreign affairs, so it is understandable why Congress may delegate broader authority in such contexts than in domestic affairs. Setting tariffs on goods from other nations implicates different concerns from domestic environmental regulation or the payback of student loans. . . .
You may read the whole thing here.
