The oral arguments before the Supreme Court last week added another level of debate to the ongoing arguments among everyone interested in President Donald Trump’s tariffs.
Until last week, most of the arguments about tariffs have swirled around the economic impact of the president’s tariffs. But the arguments before the court had very little to do with huge revenues the tariffs are undeniably bringing into the federal Treasury, their impact on GDP, or the balance of trade.
Rather, the debate before “The Nine” was an extended discussion between the justices and able counsel on both sides about whether the president has the power to do what he has already done and no doubt plans to continue to do unless the Supreme Court tells him to stop.
A GOOD DAY FOR THE SEPARATION OF POWERS IN THE SUPREME COURT
First, a prediction. My guess is that a majority of the Court, and quite possibly all nine of the justices, will leave the tariffs in place pending the results of a remand of the proceeding to a district court for fact-finding outlined by the majority. Such fact finding should sort through and categorize all of the tariffs which the president has imposed to date (and all those to be imposed prior to the next ruling of the district court.)
When that fact-finding is done, a ruling that separates the tariffs into categories should emerge, and don’t be surprised if the Supreme Court provides direction on those categories. One “bucket” of Trump tariffs should be those which involve nations that are obviously hostile to the U.S., most obviously the People’s Republic of China, Russia, Iran, North Korea, Venezuela and Cuba. The “alliance of tyrants” are all enemies of the United States, and every president needs broad an unreviewable authority to impose tariffs and even absolute trade embargos on such nations when the president concludes the tariffs and embargoes are necessary.
A second “bucket” are those Trump tariffs which have already yielded agreements on trade between the U.S. and the other nations. The court ought to be very slow to upend such agreements whether or not they think the president had the authority to impose them under the International Emergency Economic Powers Act.
The third and final bucket is the everything else bucket, and odds are the District Court will fill that to the rim and declare them all void as either a “major rule” that did not proceed through the minimum requirements of regulatory rule-making or even (perhaps, not very likely, but perhaps) an unconstitutional exercise of tariff and/or taxing power committed by Article I to the Congress which cannot be delegated away.
The “non-delegation doctrine” was employed to strike down two laws enacted by Congress in 1935, and went into the witness protection program thereafter. Don’t expect a surprise return from hiding.
The regulatory agencies to which vast powers have been delegated by Congress are being corralled in their legislating via rule-making and guidance letters in slow but steady fashion. So I expect IEEPA will not be struck down, but that its future reach will be significantly limited, but not for tariffs on nations that threaten America or for agreements reached in the months prior to the next ruling of the District Court which gets the remanded proceedings.
A second prediction: The Federal Circuit will get a chance to review that second round of proceedings before the District Court and will tweak the findings and the language of any rule set that emerges, and then the highest court will get its second shot at the biggest ball of yarn in the world. Don’t be surprised by a third round of such proceedings.
Recall the many back-and-forths between the branches on the subject of the treatment of unlawful combatants in the Global War on Terror, and the (not done yet) up and down the federal courts of all the proceedings around the terrorists held at Guantanamo Bay? We are still in the judicial wilderness there and it’s doubtful we will ever emerge from it.
The tariff power under the IEEPA, by contrast, demands an answer and a pretty specific set of rules regarding its future deployment. But not just yet. What is allowed and why, what must be undone and why, are questions that require answers. Just not speedy ones.
The court could very well demand of the president’s lawyers a country-by-country account of why the tariff imposed was necessary to deal with which emergency. Other questions could be posed by the Supreme Court that the District Court would have to sort through and answer in the search for “limiting principles” that put fences around the powers conferred by IEEPA.
That the nine would agree on the need for limiting principles of some sort seems obvious to me, or else the Congress would be empowered to delegate all of its duties to legislate to the president. Justice Neil Gorsuch hammered on this possibility with Solicitor General John Sauer in one of many interesting exchanges that occurred during the arguments. All of the justices should be concerned with maintaining separation of powers between the three branches.
But they also have to take judicial notice of all the consequences of the tariffs already imposed, and not just the revenue raised —which has been immense— but also the national security aspects of many of the tariffs, most notably vis-a-vis China.
SUPREME COURT COULD SAVE TRUMP BY OVERTURNING HIS TARIFFS
Prudence dictates that the court move carefully if it intends to impose “black-letter” limits on the powers that the IEEPA gives the president.
Very few people can pull the tablecloth out from under the setting of a Thanksgiving feast without destroying the dishes, the food and the mood. The caution that keeps that trick out of almost all dining rooms should prevail here too. The majority of the Supreme Court will want, I suspect, to act with the prudence dictated by the complexity of the situation the vast array of consequences that the tariffs have already wrought.
Hugh Hewitt is a longtime conservative commentator and author. He hosts the Hugh Hewitt Show on Salem Radio every weekday from 3 to 6 p.m.