The battle over tariffs has shifted to the federal courts. The Supreme Court may have the last word on whether the Trump administration went too far when it imposed tariffs on both allies and adversaries on “Liberation Day.” Let’s hope the highest court in the land stands on principle and affirms the decision of the Court of International Trade.
The “Liberation Day” tariffs are bad policy because of the unconstitutional manner by which they were imposed and the mere fact that tariffs are taxes. The way they were imposed violates the separation of powers.
The little-known Court of International Trade made some big news on the battle over tariffs. The CIT was created in 1890 as an arm of the Treasury Department. Over the years, the law was changed to shift the court from one under the auspices of the executive branch, Article II of the Constitution, to one under the judicial branch, Article III. In 1930, Congress made the court a federal court with jurisdiction over tariffs and import duties.
The court recently heard a case brought by the Liberty Justice Center and several states. A three-justice panel of the CIT held on Wednesday that “the Constitution assigns Congress the exclusive powers to ‘lay and collect Taxes, Duties, Imposts and Excises,’ and to ‘regulate Commerce with foreign Nations.’ U.S. Const. art. I, § 8, cls. 1, 3. The question in the two cases before the court is whether the International Emergency Economic Powers Act of 1977 delegates these powers to the President in the form of authority to impose unlimited tariffs on goods from nearly every country in the world. The court does not read IEEPA to confer such unbounded authority and sets aside the challenged tariffs imposed thereunder.” The holding stands for the idea that Congress can’t delegate legislative powers to the executive branch.
Although the U.S. Court of Appeals for the Federal Circuit has imposed a stay on the order and requested written arguments to be filed in early June, the decision of the CIT is strong evidence that the imposition of these tariffs was not constitutional. Sen. Rand Paul (R-KY), my former boss, argued on Thursday that “the Founders wanted to prevent one person from having unilateral control and decision-making powers.” Congress, and only Congress, has the power to levy taxes.
Our Founding Fathers believed that the executive does not have unlimited powers to impose tariffs on imports. James Madison, in Federalist 48, made the point that “the powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments.” Article I, Section 8, Clause 1 of the Constitution specifically gives the power to Congress to lay and collect taxes and duties. Levying tariffs falls clearly into the enumerated powers of Congress that can’t be delegated away to the executive branch.
On the political side, these tariffs are unpopular and causing chaos on Wall Street. Aside from the economic disruption that tariffs caused, the political impact of inflation caused by tariffs threatens to end Republican efforts to hold on to the House in the 2026 midterm elections. The trend for midterm elections for the party in power, regardless of the party in charge, is for significant losses in the House. Former President Joe Biden lost nine House seats in the 2022 midterm elections, Trump lost 41 seats in 2018, former President Barack Obama lost 13 seats in 2014 and 63 in 2010, and although former President George W. Bush picked up eight seats in the midterm election of 2002, Republicans suffered a 32-seat loss in 2006. If history is any predictor, Republicans will be hitting electoral headwinds no matter what happens on policy grounds in the next year and a half.
Tariffs are not popular with voters and will not help buck the trend of the party in power losing House seats. Numerous polls indicate that the imposition of tariffs is not well received by consumers and voters alike. A Marquette University Law School survey found that 37% approved and 63% disapproved of the policy. A Gallup Poll found that 89% of adults believe that tariffs will result in higher prices. Good luck finding a poll that supports higher tariffs, because they don’t exist.
DEMOCRATIC FILIBUSTER HYPOCRISY ON FULL DISPLAY
The bottom line is that the very people who will be going to the polls in the 2026 midterm elections are not happy with this one policy being pushed by a Republican president. The Trump administration should declare victory and cut a few trade deals to put the tariff issue in the rearview mirror for Republicans going forward.
Tariffs are bad policy, unconstitutionally administered by the executive branch, and bad politics.
Brian Darling is a former counsel for Sen. Rand Paul (R-KY).