"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.

Comments

[MaddogEngineer]

I just read that there is a constitutional amendment on the ballot in New York state in November to retroactively justify (after 80+years) the building of what became the some of the Lake Placid Olympic venues on land protected from development by the state constitution.

I don't agree with Trump's tariffs, would like them to be illegal/unconstitutional, but to assert that a court retroactively granting authority to the executive and/or government, to make legal something that wasn't, is unusual is rather disingenuous. It happens periodically, because we like to think we're governed by the rule of law. I mean, isn't that similar to what Chief Justice Roberts did declaring the Obamacare a tax?

My objection on principle is trying to single out this emergency declaration from all the other ones authorized in statute. Personally I would like much of that delegation regime to go away, even be declared unconstitutional. What I don't like is the people in favor of the administrative state making selective objections to overbroad delegations just because a guy they hate is doing it. The best solution here would have been to repeal/amend the IEEPA sometime in the previous 4 years, to make clear the president does not have authority to impose tariffs on his own.

[Stupid Government Tricks]

We don't have Rule of Law. We have Rule of Lawyers Interpreting Laws.

Another New York example was legislation updating the statute of limitations to allow prosecuting Trump, then legislation reverting it after conviction. Any normal observer would say that was personally targeted, a forbidden bill of attainder, but lawyers and judges will say it was all done legally.

Ritual over justice, every time.

[David Nieporent]

Another New York example was legislation updating the statute of limitations to allow prosecuting Trump, then legislation reverting it after conviction.

That in fact never happened, so as is so often the case outrage is inversely correlated with knowing the facts.

First, it had nothing to do with "prosecuting." It was about civil suits.

Second, the Adult Survivors Act was not enacted "to allow [suing] Trump"; it was a longstanding trial lawyer project, after they had previously created a lookback window for child victims a few years earlier. Yes, E. Jean Carroll took advantage of it, but so did thousands of other plaintiffs.

Third, there was no "legislation reverting it after conviction," because (a) it had nothing to do with criminal law (hence "conviction" is the wrong term); (b) all that mattered was when the suit was initiated, not when it was concluded; and (c) the ASA itself created a one-year window; there was no new legislation passed to end it.

Nobody with knowledge of the facts would say that it was personally targeted. (That's probably why it was enacted nearly unanimously; nobody thought it was about Trump.) Nobody with knowledge of American law would say that it was a bill of attainder (that's just not what the term means).

[loki13]

I appreciate that you took the effort to do this, but one thing I've learned here.

It doesn't matter if you bother to correct blatant lies.

The usual suspects will keep telling the same blatant lies.
And ... they will keep coming up with new ones.

Rinse, repeat. As a general rule, I just put the blatant liars on ignore after a while, because you can't teach someone who is unwilling to learn and wants to believe the lies.

[Stupid Government Tricks]

When you quibble so hard about civil trials not having prosecutors and not ending with convictions, I know you are a lawyer who cares only about ritual and not substance.

Try preaching your quibbles to someone who cares about lawyerly quibbles. You are everything that is wrong about lawyers. You give the other 1% their bad reputation.

[John 4]

Some commenters are noting that "quibble" seems to be a substitution for the words "correct my ignorance", and "ritual" a substitution for "law".

[David Nieporent]

Try preaching your quibbles to someone who cares about lawyerly quibbles. You are everything that is wrong about lawyers. You give the other 1% their bad reputation.

Facts matter. That you don't think so makes you the bad actor here.

[Absaroka]

My non-lawyer just-a-citizen take:

Nixon's surcharge lasted from 15Aug to 20Dec, was 'only' 10%, and was imposed for economic reasons.

Trump seems to be claiming that presidents can set tariffs for arbitrary reasons, at any rate, for any time period.

If a tree falls on my neighbor's driveway and he parks in mine for a while, I'm OK with that. If he asserts the right to park his 5th wheel there permanently, that's a nope. The camel getting his nose in once doesn't mean the herd can then just move in and stay.

[loki13]

That's ... actually a pretty good analogy.

[denizen]

The blog post seems more an effort to weaken the persuasive value of Yoshida on irrelevant grounds than to say anything that matters. The ultimate conclusion that "the Trump tariffs are a legally unprecedented use of authority from the Congress" is just a misconstruction of how caselaw and challenges to government action work.

There's an odd assumption underlying the Wolff's article: that courts are supposed to review Presidential actions considering only the bases of authority that the President "invoke[s]." Wolff writes: "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." The government is generally free to deviate from its initial rationale in defending government action. There are exceptions for constitutional issues reviewed on a heightened-scrutiny standard, at least in the main circuit I practice in. But I'm not aware of any rule that should have barred the Yoshida court from considering TWEA.

But there’s plainly no confusion about what happened contrary to what Wolff seems to be saying. Yoshida recognizes that the whereas clauses of Nixon's proclamation assert authority only under the Trade Act of 1930 and TEA—but not TWEA. The Yoshida panel wasn't confused. It didn't make a mistake about history. Yoshida just finds Presidential authority on a basis that the President didn't invoke in the proclamation but rather in litigation.

Pretending like Yoshida's reasoning is somehow questionable merely because it supposedly shouldn’t have considered TWEA, even though it should have, makes no sense.

[Life of Brian]

Well said.

[denizen]

Mainly I'm assuming because we both had the same idea at apparently the same time!

[Life of Brian]

Yes, it was great to see I wasn't the only one left wondering why a piece like this was ever written. But you unpacked it a good deal more -- and beat me by 5 minutes.

[denizen]

Thanks. Procrastination from writing the stupid brief I'm supposed to be writing channeled my energy in an interesting but non-renumerative direction.

[Voize of Reazon]

1 CFR 19.1(b) does require that a draft Presidential Proclamation state its source of authority but I'm not aware of any consequence of getting it wrong.

[Life of Brian]

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 seems a bit too clever by half, given the fact that Yoshida itself also coincidentally "assumed" that Nixon was invoking TWEA as a possible source of authority -- because that's what the administration argued in the suit. Whether Nixon said "Simon says" and invoked the TWEA in his original proclamation seems rather irrelevant to whether it ultimately gave him authority for the tariffs. Per Maddog's note above, the ACA had over a page of larded up justification under the Commerce Clause and not a word about taxes, but the administration certainly argued the taxing power as an alternative and Roberts ultimately upheld it on that basis.

The CCPA specifically noted it was deciding "the first reliance upon the TWEA as authority for a Presidential imposition of a temporary surcharge on imports," and held that the TWEA did provide such authority. As I understand it, that's exactly how present-day lower courts have come out on what Yoshida held.

I don't see the big smoking gun here.

[windycityattorney]

Is there a (legal) difference between an economic sanction and a tariff? Do they arise from the same source of Congressional authority or delegation? Are the purposes the same? Duration?

There are some lines being blurred to me. Trump imposing say a 50% tariff on China that has an escalation clause that says if China retaliates by raising tariffs on us, the tariff goes to 150%... whats the difference between a 150%tariff and an economic sanction on China? The motivation behind it? Writing an executive order with the correct terminology? This ain't my field so I am just curious.

Is there no limiting principle? If Trump can do 150% why not 10,000%?

[ah....Clem]

Not sure why, but EV neglected to include the concluding sentence of the blog post:

The fact remains the Trump universal tariffs are a legally unprecedented use of authority from the Congress.

Whether this will matter one bit to the six "conservative" members of the supreme court is still an open question.

[denizen]

They aren't "legally unprecedented" except in the unusual sense Wolff uses in the article. He literally covers another instance where the President imposed across the board tariffs, as upheld in Yoshida. The issue is that Congress amended the statute that Yoshida used to uphold them, TWEA, to apply only in wartime. It then adopted IEEPA. The question is now whether IEEPA and not TWEA authorizes the tariffs.

Section 5(b) of TWEA, at the time of Yoshida, gave the President power to: "investigate, regulate, direct and compel, nullify, void, prevent or prohibit any acquisition holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has an interest." https://tile.loc.gov/storage-services/service/ll/uscode/uscode1958-01005/uscode1958-010050a002/uscode1958-010050a002.pdf

IEEPA has similar language when it applies, empowering the President to: "investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest by any person, or with respect to any property, subject to the jurisdiction of the United States." 50 U.S.C. § 1702(a)(1)(B).

Assuming that the "unusual and extraordinary threat" requisite under 50 U.S.C. § 1701(a) exists, then Yoshida pretty strongly suggests that the tariffs are legal. So saying the tariffs are "legally unprecedented" is, in my opinion, word games from Wolff.

[Keldonric]

What’s odd about Yoshida is how it collapsed two distinct powers. The court admitted Congress alone can “lay and collect duties” yet upheld a tax under section 5(b) of the Trading with the Enemy Act by calling it regulation—because it affected imports. That flips the question from what power was delegated to what effect it had, letting a clause 1 duty slide in under clause 3 commerce powers.

The opinion leans on section 5(b)’s broad phrase “or otherwise” and the surcharge’s temporary, limited scope (capped at column 2 rates, confined to dutiable items). But those limits don’t change its nature as a revenue measure—and the TWEA never delegated taxing authority.

Congress later clarified that boundary. The Trade Act of 1974 created section 2132, authorizing a temporary import surcharge during a balance-of-payments crisis—but strictly under Title 19, not emergency powers. It was Congress’s way of reclaiming the field: a lawful tool for short-term trade stabilization without reaching into war-powers statutes. And when it enacted the International Emergency Economic Powers Act in 1977, it didn’t replace TWEA entirely—it split it. TWEA remained for wartime use, while IEEPA took over peacetime national emergencies, narrowed to transactions and property interests, dropping any reference to importation or collection.

Had section 2132 existed in 1971, Nixon almost certainly would have used it. Yoshida blurred that line for pragmatic reasons, but pragmatism isn’t constitutional delegation.

[thesafesurfer]

Today's vote in the Senate sabotages any challenge to Trump's tariffs. The Senate voted to remove Trump's tariffs on Brazil. They can vote to remove any tariff they wish. SCOTUS will not rely on some esoteric sophistry emanating from law school campuses to interject the courts into the political realm.