Below is my column in the New York Post on the decision yesterday finding that the Trump tariffs are invalid. What happens now will be, if nothing else, interesting. Dusk has come to Liberation Day. Trump has options, but the pressure will now be greater on Congress as bilateral trade agreements are moving forward.
Here is the column:
On Wednesday, President Donald Trump’s “Liberation Day” collided with deliberation day in the courts, and it did not go well. The Court of International Trade ruled that the President lacks the authority to impose his massive tariffs worldwide.
But all is not lost for Trump’s tariffs.
The three-judge panel held that the International Emergency Economic Powers Act of 1977 (IEEPA) does not give the president “such unbounded authority.”
While some have criticized the court as a “judicial coup,” it is a well-reasoned and good-faith decision from judges appointed by Presidents Ronald Reagan, Barack Obama, and Trump.
While the court, in my view, should have issued a stay pending appeal, a wide array of experts have questioned the authority under the IEEPA, which is designed to address a national emergency. The authority does not mention tariffs and has never been used for tariffs. There’s a good chance the Supreme Court upholds the ruling.
Rejecting Trump’s authority under IEEPA does not mean he lacks all authority for tariffs. The administration is correct in arguing that Congress has repeatedly deferred to presidents on tariffs, granting them sweeping authority.
For example, the ruling does not affect Trump’s “sector tariffs” under the Trade Expansion Act, which impose 25% levies on steel, aluminum, and auto imports.
Likewise, the court acknowledged that Trump has the authority under Section 122 of the Trade Act to impose tariffs of up to 15% for 150 days to address “fundamental international payment problems,” including trade deficits. After conducting further investigation into these problems, he can then impose long-term tariffs under Section 232 of the Trade Expansion Act of 1962.
But Congress may have to act if it wants to allow the Trump administration to continue to use tariffs as a trade strategy. A court just removed the stick Trump used to force other nations to the negotiating table.
Absent congressional action, it may even be possible for companies to seek reimbursement for past payments under the Trump tariffs. Both the suspension of tariffs and the risk of reimbursement could exacerbate the current deficit. The revenue from the tariffs was factored into the projections behind Trump’s “Big Beautiful Bill.”
Congress will need to demonstrate that it is nimble enough to operate effectively in this fast-paced market. It will also have to decide whether it wants to give Trump time to close his deals. Whether you agree with Trump’s gamble or not, we already have chips on the table.
Moreover, there is strong support for reciprocal tariffs to match the costs and barriers placed on our goods by other countries.
Congress has already indicated that it is willing to block Democratic measures to derail the negotiations. Recently, the Senate rejected an effort to undo Trump’s tariffs on most U.S. trading partners in a tied vote of 49 to 49 (with three Republican senators voting with the Democrats).
Trump may find that his razor-thin margin will not last much longer. Polls indicate that the public is wary of the impact of the tariffs. Many of us view tariffs as a tax on consumers and generally a poor idea.
Nevertheless, Trump was right about the market barriers and unfair treatment shown by other countries, including some of our closest allies. The resulting deals will be good for the United States and could represent the most significant move toward open markets in a generation.
These are difficult issues, and we need to tamp down the rhetoric. These judges are not the enemy. Neither is Trump. Trump is trying to use every possible law to achieve historic reforms. These judges are trying to guarantee that such priorities do not take precedence over the rule of law.
Just as Congress needs to be more nimble, so does the president. He can appeal this case while using less controversial means to maintain the tariff pressure on these countries as we work toward these bilateral trade agreements.
In the meantime, the Senate should use its leverage at this moment to not only push the administration for a fast resolution of these trade talks, but far greater reductions in federal spending.
Trump has shocked a long-comatose system in Washington. However, it has been more shock than therapy without free trade deals and deficit reductions.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and the author of “The Indispensable Right: Free Speech in an Age of Rage.”
“These are difficult issues, and we need to tamp down the rhetoric. These judges are not the enemy. Neither is Trump. Trump is trying to use every possible law to achieve historic reforms. These judges are trying to guarantee that such priorities do not take precedence over the rule of law.”
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The issue is always national security versus checks and balance on the Executive Branch. The decision is well-reasoned but misguided. A logically consistent but imprudent decision is still imprudent, the sterling logic notwithstanding. And prudence is what we’re paying for not pristine logical structures. A fool knows we are in a constellation of crises. That status and what to do about it falls to POTUS. Courts are superb at saying what we can’t do to fix the situation but hopelessly lost in saying what we can do. That’s the role of political leaders who should not have to yield to the musings of different judges on different days about how, when, and where to proceed. SCOTUS should be the check on Executive and Legislative powers not their master in areas clearly within their purview. Let the leaders lead and judges judge. When for-life judges want both roles something is askew and a kind of legalized tyranny exists. Our Founders understood this clearly:
“You seem to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps…. Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.”
~Thomas Jefferson
whether they are right or wrong in this particular decision, it’s clear the unelected lifetime tenure article III judges are now a form of creeping tyranny, architecxts of a would be KRITARCHY in which they have a continuous veto on all other actors, not a democracy
Sal Sar
Since the early 1970’s, I have been an advocate for teaching our middle school and high school students about capitalism, what it is, and what it isn’t. 50+ years later, we are seeing the results of kids not getting any comprehension of what economics is, in reality.