President Trump's Reduced Tariff/Taxes Are Still Unconstitutional

President Trump blinked today after his “Liberation Day” tariff/taxes catastrophe led to the worst S & P stock market performance for the start of a presidency since George W. Bush’s first term. Trump reduced his blanket tariff for most nations to 10% (for 90 days) while raising tariff/taxes on imports from China. Tariff/taxes remain on imports of steel and aluminum and on trade with Canada and Mexico. Consumers will soon see rapidly rising grocery market prices for fruit and vegetables because of the Mexico tariff/taxes, and consumers will see the price of televisions, electronics, and iPhones skyrocket because of Trump’s tariff/taxes on imports from China.

The U.S. Constitution gives Congress the power to impose tariff/taxes in Article I, Section 8, clause 1, and it gives Congress the power to regulate commerce with foreign nations in Article I, Section 8, Clause 3. Trump incorrectly claims that Congress has delegated that power to him under the National Emergencies Act (NEA) and the International Emergency Economic Powers Act (IEEPA) by declaring multiple “national emergencies” related to border security; the hollowing out of the United States’ manufacturing base; the existence of trade deficits; and the threat posed by rising Chinese power, which Americans have known about since President Obama wisely pivoted U.S. security concerns to China fifteen years ago.

Webster’s Dictionary defines “emergency” as follows: “1: an unforeseen combination of circumstances or the resulting state that calls for immediate action; 2: an urgent need for assistance or relief.” The problems President Trump is concerned about are ones that he has complained of for his whole forty years in public life, and Congress and the American people have known about them for decades. They are not unforeseen threats that require urgent action like a Russian or Chinese nuclear attack on the United States, nor are they problems in need of such urgent relief that Trump can address them while bypassing Congress. The statutes Trump invokes, NEA and IEEPA, were passed in the 1970′s to curtail presidential claims of emergency power, not to broaden such power.

The Supreme Court should narrowly construe the “emergency power” these statutes grant to the President, to avoid the conclusion that Congress has delegated its taxing power to the President. I know that in Trump’s mind trade deficits are an “emergency” because he thinks they are really a big problem, but that is not what the word “emergency” in NEA or IEEPA mean. Congress has long known about the problems but so far declined to deal with them by raising tariff/taxes because doing so will raise inflation, throw the U.S. economy into a depression, crash the stock market, and hurt American farmers and others who depend on exports to make a living and who will be hurt by the retaliation of foreign nations to the unilateral presidential raising of tariff/taxes.

In four cases during the Biden Administration, the current U.S. Supreme Court held that when presidential action under ambiguous statutes raises “a major question” the President cannot act on it unilaterally without getting congressional approval. First, the Court held Biden could not redefine the word “pollutant” to include carbon dioxide emissions to unilaterally enact a trillion-dollar climate change policy. Second, the Court held that Biden could not unilaterally forgive billions of dollars of student loan debt because of an imaginary terrorist threat. Third, the Court held that Biden could not require workplaces covered by OSHA to force their employees to get COVID vaccines whether they wanted them or not. And, fourth, the Court held Biden could not by presidential order suspend the right of landlords to evict tenants who did not pay their rent because of the COVID emergency.

Conservatives hailed these “major question doctrine” decisions as a crucial step in reining in an imperial, and indeed lawless presidency. Now President Trump is copying a page from Joe Biden’s imperial presidency playbook and invoking something that is not a genuine “emergency” to impose massive tax increases, inflation, and a potential depression on the American people. Federal courts need to put a stop to this presidential power-grab to raise taxes unilaterally on the American people. A Chinese importer has filed a federal lawsuit in the Northern District of Florida to stop the tariffs. The District Judge in that case should issue a nationwide injunction stopping all of Trump’s tariff/tax increase, which are nothing less than taxation without representation by We the People’s Congress. Congress can then decide, which, if any, of Trump’s tariff/taxes it wants to adopt by passing legislation.

The fact that Trump has paused a lot of tariffs for 90 days does not make legal the other tariffs he has imposed unconstitutionally. Almost every day, since his swearing in as President on January 20, 2025, Trump has either imposed or threatened a tariff/tax increase. The Supreme Court should tell him bluntly to cut it out. The tariff/tax increases are usurping congressional power, and need to be stopped.

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