In the not-too-distant future, we are likely to see the Supreme Court address a case dealing with whether reciprocal tariffs imposed by President Donald Trump violate the US Constitution. Reciprocal tariffs are a significant portion of Trump’s tariffs.
Article I, Section 8 of the Constitution grants Congress the exclusive right to impose tariffs. Over the years, Congress has granted limited authority to the president to temporarily impose tariffs in the case of certain national emergencies.
In April, Trump began ordering the imposition of tariffs ostensibly under the authority of the International Emergency Economic Powers Act. The IEEPA authorizes the president to declare a national emergency in response to an “unusual and extraordinary threat to the United States which has its source wholly or substantially outside the United States.”
After such declaration, the president can generally deal with the threat by blocking transactions or freezing assets. The IEEPA does not expressly authorize a president to impose tariffs.
Numerous plaintiffs brought suit claiming damage from the tariffs. Those cases were consolidated into a single case, V.O.S. Selections v. Trump, in which the plaintiffs brought suit in the Court of International Trade arguing that Trump exceeded the presidential authority granted by the IEEPA. A panel of three judges issued a summary judgement stating the IEEPA does not allow the president to impose tariffs.
However, their ruling allowed the president to temporarily impose tariffs of up to 15% for a maximum of 150 days under the Trade Act of 1974. The ruling is limited to reciprocal tariffs and tariffs imposed for trafficking violations imposed by the Trump Administration but generally does not affect other Trump tariffs.
The Trump Administration appealed the decision to the Federal Circuit Court of Appeals, which upheld the lower court’s initial ruling by a 7-4 vote. In order to give the Trump Administration time to appeal the case to SCOTUS, the court issued a stay of execution until mid-October. The administration is certain to appeal.
The appellate court reasoned that, under Article I, Section 8, only Congress has the power to impose tariffs and the president’s approach raised issues under the Major Question Doctrine set forth by SCOTUS in West Virginia vs. EPA. In the West Virginia case, the majority opinion, written by Chief Justice Roberts, attempted to restrain perceived overreach by the Obama Administration by concluding that the Constitution did not give Congress unlimited ability to delegate its authority to the executive branch. Justice Neil Gorsuch wrote a concurring opinion explaining Congress can only delegate authority to the Executive Branch when such authority does not deal with a “Major Question,” which Gorsuch defined as an issue of “great economic and political significance.” Unfortunately, the term “Major Question” is not clearly defined.
Clearly, tariffs have great economic and political significance as billions, perhaps trillions, of dollars affecting major geopolitical interests are involved. Yet, in the V.O.S. Selections case, the four dissenting appellate court judges argued that the Major Question Doctrine should not apply in national security or foreign policy contexts, where Congress typically intends to grant the president substantial authority and flexibility. This seems inconsistent with Gorsuch’s concurring opinion.
So how will SCOTUS act? Obviously, the issue is politically charged, and requires prompt resolution. If SCOTUS is inclined to follow the lower courts’ decisions, it can simply choose not to hear the case, which would cause the appellate court’s decision to stand. That would also be the speediest resolution to the matter.
But doing so would be a significant blow to Trump and would not address unanswered questions about the applicability of the Major Question Doctrine. In a previous column, I observed that the Major Question Doctrine provides an opportunity for SCOTUS and the lower courts to expand their power over the other two branches of government by setting forth ground rules with respect to how those branches can share power. Consequently, if SCOTUS decides to hear this case, it may be one of the most important cases in recent SCOTUS history as it will set precedent for evolution of the Major Question Doctrine during a period in which the president seeks significant expansion of presidential powers that have historically been reserved for Congress. Will SCOTUS see a similar need to rein in Trump as it did with Obama?
If SCOTUS decides to hear the case, it will likely allow the tariffs to remain in effect until it rules. Meanwhile, the world is anxiously waiting.
Jim de Bree is a Valencia resident.
