"How Unprecedented Are Trump's 'Emergency Tariffs'"?

My Hoover colleague Philip Zelikow, who is involved in the tariff litigation, passed this blog post along to me, and it struck me as very interesting. The author, Alan Wm. Wolff,

was the U.S. Department of Treasury's international trade lawyer from 1969 to March 1971, in which capacity he drafted President Nixon's Import Surcharge Proclamation 4074 of August 17, 1971 and defended this import surcharge at the GATT in September 1971 as counsel with the U.S. delegation. He later served as Deputy General Counsel and General Counsel at the Office of the Special Representative for Trade Negotiations from 1973 to 1977 and as Deputy Special Trade Representative from 1977 to 1979 with the rank of Ambassador. In the Nixon and Ford Administrations, he was the chief drafter for the administration of the Trade Act of 1974, the country's basic trade statute.

An excerpt:

When President Donald Trump imposed his so-called reciprocal tariffs on pretty much all products from all countries this year, he said he was responding to a national emergency due to the nation's trade deficit. He claimed as authority for his actions the International Emergency Economic Powers Act (IEEPA). The lower courts have ruled against the tariffs, finding that Congress had not delegated to the president sufficient authority to impose them. Their decisions are being appealed to the Supreme Court, with oral argument scheduled for November 5.

Only once before has a president imposed a blanket tariff as an emergency measure. President Richard Nixon declared a balance of payments emergency and imposed a 10 percent import surcharge in 1971. It was upheld by an appellate court in 1975 in the case of Yoshida International, Inc. v. United States. It is universally assumed, including by the lower courts in the current case, that Nixon used the Trading with the Enemy Act (TWEA)—the nearly identical predecessor authority to IEEPA—for the 1971 import surcharge.

However, this reading of history is wrong: Nixon did not claim emergency authority for the measure under TWEA. Nixon claimed authority to impose sanctions under trade agreement laws for the tariffs he put into place.

This difference could matter when the Supreme Court hears arguments on the appeal in November. Since Nixon did not invoke emergency powers under TWEA, a sanctions law, there is no legal precedent for Trump invoking emergency powers under IEEPA to impose his "reciprocal tariffs."

Looking back at the events of 50 years ago, how did the courts get this important point so wrong? The answer takes some detective work. The planning for the surcharge took place in tight secrecy at Camp David, the presidential retreat in the Maryland woods, over a weekend in mid-August 1971. The administration's top economic officials were all there, including Secretary of the Treasury John Connally, a trade hawk; Under Secretary for Monetary Affairs Paul Volcker; Federal Reserve Board Chair Arthur Burns; Chairman of the Council of Economic Advisers Paul McCracken; Council of Economic Advisers member Herb Stein; and Peter G. Peterson, serving as the assistant to the president for international economic affairs and executive director of the Council on International Economic Policy.

Henry Kissinger, Nixon's national security advisor, who was not at Camp David, was given such scant information early that weekend that it made little impression on him. Even Secretary of State William P. Rogers was kept in the dark, despite the massive impact the actions would have on US foreign relations. The State Department was not even informed until an hour before Nixon announced the measures on television on Sunday night, August 15, 1971.

Back at the main Treasury building next to the White House, security was also tight. The handful of people who worked on the package were told to report to work on Friday and to be prepared to stay for the entire weekend, telling no one, not even their spouses, where they were going to be. William Rehnquist, then an assistant attorney general, came over to the building at one point to approve the import surcharge proclamation. The document was not to leave the building until the president went on television to announce the package of measures….

For more, see Philip Zelikow's recent Hoover Substack essay, which V.O.S. has cited in their brief to the Court.