Trump’s Tariffs Get Their Day At The Supreme Court

0:06You're listening to the 1A podcast. I'm Todd Zwilich in for Jen White, and this is In Case You Missed It, where we bring you some of the week's most important conversations that you might have missed. I think it's the most important decision, one of the most important decisions in the history of our country. Because without tariffs, without our being able to use tariffs freely, openly, and in every way, we really would suffer tremendously from a national security standpoint. One of the most important decisions in the history of our country, says the president of the United States. He's talking about tariffs and tariffs get their day in court.

0:47On Wednesday, the Supreme Court will hear arguments on two cases about the legality of President Trump's favorite policy tool. Now, shortly after he took office, Trump started signing executive orders imposing tariffs on America's trading partners, even its friends. He declared April 2nd Liberation Day and enacted a broad package of import duties from Canada to China and way beyond, upending the U.S. economy and reshaping global trade. He did it all without any input from Congress. And that might or might not have violated presidential power under the Constitution. So are the Trump administration's tariffs legal?

1:27Kate Shaw joins us after a break to help us understand the arguments for and against and what's at stake. She's a constitutional law professor and scholar at Penn Cary Law at the University of Pennsylvania and co-host of the Strict Scrutiny podcast. Stay with us. We've got a lot to get into.

1:49Welcome back to 1A, Kate. Thanks for having me back, Todd. So help us understand the basics. I said there are two cases. Can you briefly explain the basics of these cases and how they combine into one big question of tariffs? Sure. So as you said, the president has announced a lot of rounds of tariffs, a lot of them on so-called Liberation Day back in April, but also at other points in the administration. And they fall basically into two categories. So you have some of them targeted, at least on the president's telling, toward countries that have failed to stop the flow of fentanyl into the United States.

2:20And then you have these across-the-board tariffs that are really about, again, on the president's telling, these persistent trade imbalances. So you have essentially these two categories of tariffs. And as your intro made clear, they are falling very hard on a lot of, in particular, small businesses who are a number of the plaintiffs in this case who have challenged these tariffs, different kinds of challenges to the different sorts of tariffs. But they boil down to the same argument, which is the president just doesn't have the authority to impose tariffs. Tariffs are basically taxes. And under our constitutional scheme, Congress, not the president, gets to impose taxes.

2:53And there is a statute the president is relying on in imposing these taxes. But the argument is that the statute just doesn't give the president the authority he is asserting. So let's get to that. Okay, one of the laws at stake here is the International Emergency Economic Powers Act of 1977. It gives the president the power to regulate trade in the event of unusual and extraordinary threats with respect to which a national emergency has been declared. What's a national emergency in this case? Is it whatever the president says it is? Well, that's what the administration wants the court to say, that essentially there's not a real role for courts in second-guessing a presidential determination of an emergency.

3:36That's an argument the administration is making in other contexts as well. But here with respect to tariffs, the statute that you mentioned, which is kind of a mouthful, so I will call it AIPA, which is the acronym that it is known by. So AIPA does give the president pretty substantial powers when there has been, when the president has declared, as you said, an unusual and extraordinary threat. And when the president has made such a declaration of national emergency, which he has with respect to both fentanyl and these trade imbalances, the statute gives the president the power to do a list of things.

4:05And on that list is regulate, but not on that list is to tax or tariff. And so the question is, does this power to regulate encompass the power more specifically to impose tariffs? Now, it's notable that presidents have not imposed tariffs under this statutory authority. And it's also notable that there are lots of other statutes that explicitly do give the president the power to impose tariffs. So the challengers are arguing the statute just does not bear the weight the administration wants to put in it. So, you know, you have at least two questions about the meaning of the statutory terms. Does regulate encompass tariffs?

4:37And does the president just get to say something is an emergency and do courts have to just take the president at his word? Or can they probe the underlying kind of factual predicate for that declaration? Yeah. Now, I remember from Constitution 101 and from reading lots of your work, Kate, that the power to tax rests in one place. It rests with Congress. That's Article 1. The president doesn't have the power to tax. So it sounds like this question of is a tariff a tax, and if tax isn't mentioned in the statute, can the president tax? Like that's – we're getting to the kernel of it here. So I think that's kind of the heart of the statutory question.

5:14And Congress – so exactly as you said, Congress, Article 1, has the power to tax. But Congress does delegate a lot of powers to the president. and the question is, is there a limit that courts are going to enforce on how much power Congress can give the president? So say the president is right, like the statute does give him the power to impose these tariffs and to just say anything is an emergency and he can proceed essentially without limitation. Is that even constitutional? So there's a separate question, not just what the statute means, but depending on what we think the statute means, does the Constitution even permit it to operate this way or would that affect this wholesale transfer of power from Congress, where it's supposed to reside, to the president.

5:53And if so, the Constitution just doesn't allow that. Now, what about precedent, Cainshaw? Has the court ruled on questions like this before? Have they ruled on exactly this and they're going to revisit and maybe overturn some precedent? What have they said in the past? There has just never been a president who's relied on this particular statutory authority to impose tariffs. So this is a pretty open question. You know, there are definitely precedents that say courts give deep deference to presidents when presidents are acting in a foreign affairs or national security sphere. And the president, as actually the clip from President Trump you played at the top, I think makes clear he is framing this case as about national security and foreign affairs.

6:29And that's domain that the president wants to have this fight on because it is domain where courts are hesitant to second guess the president. There's also, though, a relatively recent doctrine that, sorry, it sounds kind of technical, but what's called the major questions doctrine that the Supreme Court has deployed in recent years, including to invalidate some pretty major actions by the Biden administration. The idea here is that there are certain things that powers that the executive branch might want to exercise that are so vast, have such political and economic significance. The Congress has to be really, really clear if it wants to empower the executive branch to take those kinds of major actions.

7:06And on the basis of that doctrine, the Supreme Court struck down the Biden loan forgiveness program, a major EPA greenhouse gas emission regulation, some COVID measures like a vaccine mandate and an eviction moratorium. And so there is a question, well, will the court be consistent and require that kind of statutory clarity when it's evaluating the conduct or actions of this president in the same way it was when Biden was the president? Yeah, I mean, you just mentioned when there are lots of instances in our very recent past when Republicans in Congress were thrilled with the major questions. I call it activism, maybe the wrong word, but from the Supreme Court basically clawing back decades of power that we've been accustomed to presidents and administrations exercising.

7:49So part of the question is whether they will do the same thing here? Absolutely. I mean, I think that's a huge question in the case, and I think it will look quite inconsistent if the court finds some way to not apply the doctrine, to not find it relevant or on point here when it used it so freely in the context of Biden actions that I think by most measures were more modest than these enormous tariffs. Now, there is a way to distinguish, and Justice Kavanaugh in a couple of writings has gestured toward this, and certainly the Trump administration's briefs have leaned into this argument, which is that those matters were agency actions, not actually direct presidential action, and that's a difference.

8:30And then maybe also those involved domestic affairs, right? Housing policy or student loans. And at issue here, because foreign affairs and national security and defense are implicated, the president is again acting in this space of core presidential power. And so maybe the major questions doctrine isn't implicated, but I think it would feel awfully convenient for the court to find those distinctions in this case and rule as it has so often, primarily on the shadow docket, in favor of the Trump administration when it was pretty skeptical of some assertions of executive authority when it was a Democrat in the White House.

9:04You're talking there about the relationship between this court and Donald Trump and just the notable deference they've been showing to this president in this presidency so far. Just before we go, Kate, you talk about consistency and deference. There are lots of members of the court, Amy Coney Barrett comes to mind, who call themselves textualists, read the statute, read the words. If the words don't say it, you don't need to know anything else. If IEPA, which I love that we're talking, IEPA, what a statute. If IEPA doesn't say tax, then can't we end this interview? I mean, I think that if the courts self-proclaimed textualists are true to their method, then I think that should be the end of the case.

9:47But I'm hesitant to venture a guess that that's how this is likely to come out. To describe the stakes here, I don't know if you want to do it legally or financially. I mean, there's just maybe hundreds of billions of dollars at stake with tariffs. What do you think the stakes are here? Yeah, I mean, our core separation of powers questions is the sort of is Congress actually the key policymaker and driver of policy as the Constitution contemplates? Or has Congress so ceded its authority to the president and has the Supreme Court so agreed with that ceding of power that actually the president is the key policymaker?

10:21in our scheme. I think that's at stake. And hundreds of billions of dollars in these tariffs, both the ones that have already been imposed and sort of prospectively what the shape of our economy, at least in the context of imports, which are a huge part of our economy, will look like. So the stakes both legally and I think financially are enormous. That's Kate Shaw, professor at Penn Carey at the University of Pennsylvania. Kate, thank you so much for joining us and thank you for the clarity. This program comes to you from WAMU. It's part of American University in Washington, distributed by NPR.

10:53I'm Todd Zwilligan for Jen White. We'll talk more soon. This is 1A.