Patterico's Pontifications

Hello.

Dana (63f691) — 5/28/2025 @ 5:21 pm

Previously posted on the Open Thread, here is a link to the Court of International Trade’s opinion.

Rip Murdock (d2a2a8) — 5/28/2025 @ 5:37 pm

It was a unanimous ruling, including by Trump and Reagan appointed judges. More detail at the link.

Paul Montagu (07689a) — 5/28/2025 @ 6:06 pm

“The president identified the emergency, and he decided the means to address that emergency,” Brett Shumate, a lawyer at the Justice Department, told the court. He added that the goal had been to “bring our trading partners to the table” and create political leverage for possible deal-making.

“It may be a very dandy plan, but it has to meet the statute,” replied Judge Jane A. Restani, who was nominated to the trade court by President Ronald Reagan.

Damn liberal judges.

Dave (ffb911) — 5/28/2025 @ 6:07 pm

Save Democracy

lloyd (9361af) — 5/28/2025 @ 6:14 pm

Trump, Reagan, and Obama appointed judges.

Dana (04f99e) — 5/28/2025 @ 6:22 pm

Possibly the most single fortunate political development – for Trump and his cultists – imaginable.

Dave (ffb911) — 5/28/2025 @ 6:27 pm

Dow futures jumped by around 500 right after the ruling.
Wall Street likes it, as any other person opposed to his unilateral worldwide tariff attack.

Paul Montagu (07689a) — 5/28/2025 @ 6:38 pm

Ed Whelan…

Addendum: A reader points out to me that the Court of Int’l Trade has an unusual requirement that no more than five judges can be of the same political party and that the Trump appointee, Timothy Reif, identified as a Democrat at the time of his selection.

Paul Montagu (07689a) — 5/28/2025 @ 6:54 pm

Trump, Reagan, and Obama appointed judges.

Dana (04f99e) — 5/28/2025 @ 6:22 pm

That’s lloyd’s job.

Rip Murdock (4087f9) — 5/28/2025 @ 6:54 pm

A short summary of the argument:

* IEEPA cannot possibly delegate unlimited authority to set tariffs to whatever the President wants, because that would be an unconstitutional delegation of Congress’ Article I Section 8 Clause 1 power (The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises) — such power can only be delegated when confined by a set of rules which limits discretion.

* the worldwide and retaliatory tariffs do not appear to be limited by any discretion-limiting set of rules, and so therefore they are not authorized by IEEPA (and, if they *were* authorized by IEEPA, IEEPA would be unconstitutional)

* the trafficking tariffs are unauthorized by law because the law requires them to actually *do something to deal with the threats enumerated in the emergency declaration*, and these tariffs don’t do that.

aphrael (227dec) — 5/28/2025 @ 6:56 pm

This is incredibly entertaining to me because the non-delegation doctrine was one of the tools conservatives used to fight the New Deal.

aphrael (227dec) — 5/28/2025 @ 7:02 pm

We’ll see how this decision fares at the US Court of Appeals for the Federal Circuit, which has been very deferential to the government’s position in the past.

Rip Murdock (4087f9) — 5/28/2025 @ 7:04 pm

It will at least winter or spring before the Supreme Court gets a crack at it.

Rip Murdock (4087f9) — 5/28/2025 @ 7:09 pm

This is incredibly entertaining to me because the non-delegation doctrine was one of the tools conservatives used to fight the New Deal.

And the major questions doctrine was deployed against Biden’s original attempt to forgive student loan debt.

Dave (ffb911) — 5/28/2025 @ 7:41 pm

Trump isn’t exactly known for taking no for an answer – be it from judges, voters, or women – so I imagine he will try to re-impose all the tariffs with slightly different wording, or under different authority.

They likely prepared for this setback ahead of time. He won’t let a mere court stop him from bullying the rest of the world.

Dave (ffb911) — 5/28/2025 @ 7:54 pm

so I imagine he will try to re-impose all the tariffs with slightly different wording, or under different authority.

If imposed under different authority then that would be no problem, if the met the conditions of whatever authority he used. Rewording the tariffs wouldn’t change their unconstitutionality under IEEEPA.

Rip Murdock (4087f9) — 5/28/2025 @ 7:59 pm

It will at least winter or spring before the Supreme Court gets a crack at it.

Rip Murdock (4087f9) — 5/28/2025 @ 7:09 pm

What will be most interesting will be what the Supreme Court’s ruling on national injunctions. If the Court takes a maximulist approach and bans NI’s and requires everyone affected by the tariffs to file separate lawsuits, it will jam up the courts for decades.

Rip Murdock (4087f9) — 5/28/2025 @ 8:04 pm

What an absolute waste of time this tariff nonsense has been. Relationships with important trade partners have been negatively impacted, and the reputation of the U.S. has also been negatively impacted. Who knows what the fallout of the Court’s decision – the correct decision – will be. Do you think Trump remotely understands the damage he’s done?

Dana (4cd8ed) — 5/28/2025 @ 9:01 pm

What will be most interesting will be what the Supreme Court’s ruling on national injunctions. If the Court takes a maximulist approach and bans NI’s and requires everyone affected by the tariffs to file separate lawsuits, it will jam up the courts for decades.

The CoIT decision explicitly addressed this, and it would appear to be a non-issue:

There is no question here of narrowly tailored relief; if the challenged Tariff Orders are unlawful as to Plaintiffs they are unlawful as to all. “[A]ll Duties, Imposts and Excises shall be uniform throughout the United States,” U.S. Const. art. I, § 8, cl. 1, and “[t]he tax is uniform when it operates with the same force and effect in every place where the subject of it is found.” [Dave note: citation of three relevant cases omitted]

Article I, Section 8 seems pretty clear.

Dave (ffb911) — 5/28/2025 @ 9:13 pm

Rewording the tariffs wouldn’t change their unconstitutionality under IEEEPA.

That’s not clear. The court objected to the lack of any limiting principle, which might be cured by rewording.

But they also suggested (but did not “reach” the question) that trade imbalances are not “an unusual or extraordinary threat”, but a normal state of affairs, which could also prevent the IEEPA’s emergency authority from being used to address them.

Regardless, the administration could *claim* a new version passes muster, allowing Trump to continue thumping his chest at the world (which seems to be the only real point of all this) while another round of litigation goes forward.

Dave (ffb911) — 5/28/2025 @ 9:27 pm

I was pretty sure this was what they’d rule. The court was pretty astonished by the argument the administration made.

I have no doubt they will just claim a different emergency.

Kevin M (f9cb10) — 5/28/2025 @ 9:44 pm

This is incredibly entertaining to me because the non-delegation doctrine was one of the tools conservatives used to fight the New Deal.

Leading to limitations like the Legislative Veto.

Kevin M (f9cb10) — 5/28/2025 @ 9:49 pm

But they also suggested (but did not “reach” the question) that trade imbalances are not “an unusual or extraordinary threat”

And they left the door open to some future president who wants to claim that Climate Change or The National Debt ARE such a threat.

Kevin M (f9cb10) — 5/28/2025 @ 9:51 pm

What will be most interesting will be what the Supreme Court’s ruling on national injunctions. If the Court takes a maximulist approach and bans NI’s and requires everyone affected by the tariffs to file separate lawsuits, it will jam up the courts for decades.

NO. IT. WON’T.

The CoIT is a NATIONAL court, one of a few, which has the black-letter power to issue national injunctions, subject to review by the Federal Circuit or the Supremes. The Supreme Court will not say the CoIT cannot issue those injunctions because they have the express authority to issue them. It would be like ruling the USPTO cannot issue any trademarks.

Kevin M (f9cb10) — 5/28/2025 @ 9:55 pm

They could, of course, stay the ruling, but they won’t.

Kevin M (f9cb10) — 5/28/2025 @ 9:56 pm

And what Dave said in 20

Kevin M (f9cb10) — 5/28/2025 @ 9:56 pm

Sen. Kennedy is an idiot.

Kevin M (45e498) — 5/28/2025 @ 10:44 pm

Kevin – the administration’s argument is that article 3 standing requirements make nationwide injunctions per se unconstitutional no matter which court issues them.

In the unlikely event the Supreme Court accepts that, then even Congressional authorization won’t be enough to allow the CoIT to issue them.

aphrael (26baf9) — 5/29/2025 @ 1:18 am

This is an example of Trumps incompetence as a leader. He has the house and the senate. He could have articulated a clear strategy and gotten legislative support that would help him in the implementation of his trade policies. But he didn’t. So now he’s here.

Time (b58c41) — 5/29/2025 @ 5:10 am

This is an example of Trumps incompetence as a leader. He has the house and the senate. He could have articulated a clear strategy and gotten legislative support that would help him in the implementation of his trade policies. But he didn’t. So now he’s here.

Time (b58c41) — 5/29/2025 @ 5:10 am

Morning Time:
I am not sure that i agree with you here, in any administration there is a separation of powers argument. It would be the responsibility of the house leader and senate leader to get things organized.

I think it would be better to be angry at the legislature for giving up its power in the past.
R

Joe (584b3d) — 5/29/2025 @ 5:30 am

Trump is the head of the GOP. He sets the agenda. He would need to work with those institutions, but has chosen not to do so on this in favor of attempting to misuse emergency powers.

Time (b58c41) — 5/29/2025 @ 5:32 am

Joe, I agree with you on the broad assertion that congress has failed in its duties in many many ways.

Time (b58c41) — 5/29/2025 @ 5:33 am

Trump is the head of the GOP. He sets the agenda. He would need to work with those institutions, but has chosen not to do so on this in favor of attempting to misuse emergency powers.

Time (b58c41) — 5/29/2025 @ 5:32 am

Here is where i disagree. Well crafted constitution/ separation of powers should not have emergency powers. That is a recipe for abuse. (Example… Trump?)

Joe (584b3d) — 5/29/2025 @ 5:55 am

Joe, I agree with you on the broad assertion that congress has failed in its duties in many many ways.

Very much agree.

Joe (584b3d) — 5/29/2025 @ 5:56 am

@34, That’s debatable. I think there’s a case to be made for emergency powers, so long as there are checks and balances.

Time (b58c41) — 5/29/2025 @ 6:02 am

This is an example of Trumps incompetence as a leader. He has the house and the senate. He could have articulated a clear strategy and gotten legislative support that would help him in the implementation of his trade policies. But he didn’t. So now he’s here.

Time (b58c41) — 5/29/2025 @ 5:10 am

Morning Time:
I am not sure that i agree with you here, in any administration there is a separation of powers argument. It would be the responsibility of the house leader and senate leader to get things organized.

Joe (584b3d) — 5/29/2025 @ 5:30 am

There’s never really been a separation of powers between the executive and legislative branches when they are controlled by the same party; which is why divided government achieves so little.

Time is correct; had Trump requested Congress to enact his tariff plans (as Congress did up until the 1930s) there would have been a consensus and a firm legal framework for his tariffs.

Rip Murdock (d6d95d) — 5/29/2025 @ 7:09 am

The Supreme Court will not say the CoIT cannot issue those injunctions because they have the express authority to issue them. It would be like ruling the USPTO cannot issue any trademarks.

Kevin M (f9cb10) — 5/28/2025 @ 9:55 pm

We’ll see.

Rip Murdock (d6d95d) — 5/29/2025 @ 7:13 am

Time (b58c41) — 5/29/2025 @ 5:10 am

{Trump] He could have articulated a clear strategy and gotten legislative support that would help him in the implementation of his trade policies

A clear strategy. But not what he did.

He could have gotten something passed – by mid-July maybe (meanwhile negotiating) – but not gotten enacted what he did with tariffs.

It would have been somewhat like income tax law. Congress would have its say.

Sammy Finkelman (2d7491) — 5/29/2025 @ 7:52 am

Do you think Trump remotely understands the damage he’s done?

Do you think he cares?

Rip Murdock (d2a2a8) — 5/29/2025 @ 9:01 am

But they also suggested (but did not “reach” the question) that trade imbalances are not “an unusual or extraordinary threat”

Dave (ffb911) — 5/28/2025 @ 9:27 pm

The Court specifically identified (on page 33 of the opinion) the fact that balance of payments deficits are a non-emergency and should be addressed under Section 122 of the Trade Act of 1974:

In 1974, Congress enacted the Trade Act, including Section 122 dealing with remedies for balance-of-payments deficits. See Trade Act of 1974, Pub. L. No. 93-618, § 122, 88 Stat. 1978, 1987–89 (codified at 19 U.S.C. § 2132). Section 122 is titled “[b]alance-of-payments authority” and specifically addresses Presidential proclamations of “temporary import surcharge[s]” and “temporary limitations through the use of quotas” in situations of “fundamental international payments problems.” Id. Section 122 sets specific limits on the President’s authority to respond to balance-of-payments problems, such as a 15 percent cap on tariffs and a maximum duration of 150 days. See id.

Congress’s enactment of Section 122 indicates that even “large and serious United States balance-of-payments deficits” do not necessitate the use of emergency powers and justify only the President’s imposition of limited remedies subject to enumerated procedural constraints. See id.; see also Yoshida II, 526 F.2d at 578 (“Congress has said what may be done with respect to foreseeable events in the Tariff Act, the [Trade Expansion Act], and in the Trade Act of 1974 (all of which are in force) and has said what may be done with respect to unforeseeable events in the (Trading With the Enemy Act.”)). In these ways, Section 122 removes the President’s power to impose remedies in response to balance-of-payments deficits, and specifically trade deficits, from the broader powers granted to a president during a national emergency under IEEPA by establishing an explicit non-emergency statute with greater limitations.
……….
……….As a result, tariffs responding to a trade deficit fit under Section 122 because they “deal with [a] large and serious United States balance-of-payments deficit[].” 19 U.S.C. § 2132(a)(1). Thus, the President’s Worldwide and Retaliatory Tariffs, imposed in response to a balance-of-payments deficit, must conform with the limits of Section 122.

The legislative history surrounding IEEPA confirms that Congress cabined any presidential authority to impose tariffs in response to balance-of-payments deficits to a narrower, non-emergency statute. ……….

Because the Worldwide and Retaliatory Tariffs deal with “large and persistent annual U.S. goods trade deficits,” Executive Order 14257, 90 Fed. Reg. at 15041, these actions address a balance-of-payments deficit and therefore must comply with the limitations in Sections 122. ……….

And they left the door open to some future president who wants to claim that Climate Change or The National Debt ARE such a threat.

Kevin M (f9cb10) — 5/28/2025 @ 9:51 pm

How so? The Court also rejected (beginning at page 36) the use of the IEEPA for the fentanyl tariffs:

IEEPA does not authorize the Trafficking Tariffs for the separate reason that they do not satisfy the conditions that Congress imposed in 50 U.S.C. § 1701:
………..
This provision limits the President’s exercise of IEEPA powers to a limited set of situations. ……. IEEPA powers are available only where all of the following conditions pertain: First, there must be a “threat . . . which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States.” 50 U.S.C. § 1701(a). Second, this threat must be “unusual and extraordinary.” Id. § 1701(b). Third, a national emergency must be declared with respect to the threat. Id. And fourth, the President’s exercise of IEEPA authority must “deal with” the threat.
………..
………..(T)he Trafficking Tariff Orders rest on a construction of “deal with” that is at odds with the ordinary meaning of the phrase. “Deal with” connotes a direct link between an act and the problem it purports to address. A tax deals with a budget deficit by raising revenue. A dam deals with flooding by holding back a river. But there is no such association between the act of imposing a tariff and the “unusual and extraordinary threat[s]” that the Trafficking Orders purport to combat. Customs’s collection of tariffs on lawful imports does not evidently relate to foreign governments’ efforts “to arrest, seize, detain, or otherwise intercept” bad actors within their respective jurisdictions.
………
……….(T)he court does not pass upon the wisdom or likely effectiveness of the President’s use of tariffs as leverage. That use is impermissible not because it is unwise or ineffective, but because § 1701 does not allow it. Rather, the Trafficking Orders’ “clear misconstruction” of § 1701’s “deal with” condition renders them “action[s] outside delegated authority.” Maple Leaf Fish, 762 F.2d at 89.
………..

Presumably a future court would also find that tariffs do not “deal with” climate change or the national debt.

Footnotes omitted.

Rip Murdock (d2a2a8) — 5/29/2025 @ 9:39 am

> Presumably a future court would also find that tariffs do not “deal with” climate change or the national debt.

I agree with this analysis as to climate change.

On the other hand, I could see an argument that tariffs deal with the national debt by raising revenue and therefore helping reduce the accumulation of debt.

aphrael (2a9289) — 5/29/2025 @ 10:26 am

the administration’s argument is that article 3 standing requirements make nationwide injunctions per se unconstitutional no matter which court issues them.

I doubt they would say the Supreme Court is so limited. I can see them making that claim with respect to district courts and even circuit courts (except the Federal Circuit).

But the Court of Intenational Trade is unique among Article III courts. It “exercises broad jurisdiction over most trade-related matters and is permitted to hear and decide cases anywhere in the country, as well as abroad.” Appeals go to the Federal Circuit, which is similarly unbound by location.

Kevin M (081085) — 5/29/2025 @ 12:35 pm

> Presumably a future court would also find that tariffs do not “deal with” climate change or the national debt.

I agree with this analysis as to climate change.

On the other hand, I could see an argument that tariffs deal with the national debt by raising revenue and therefore helping reduce the accumulation of debt.

aphrael (2a9289) — 5/29/2025 @ 10:26 am

However, IEEPA doesn’t contain any authority to impose tariffs for any reason.

Rip Murdock (d2a2a8) — 5/29/2025 @ 12:43 pm

The DC Court of Appeals moved fast, staying yesterday’s tariff ruling.

A federal appeals court has paused Wednesday night’s ruling from the Court of International Trade that blocked President Donald Trump’s tariffs.

The United States Court of Appeals for the Federal Circuit’s ruling restores Trump’s ability to levy tariffs using the emergency powers he declared earlier this year. The appeals court also ordered that both sides provide written arguments on the question of the blocking of Trump’s tariffs, to be filed by early next month.

I’m still banking on Somin & Co. prevailing.

Paul Montagu (07689a) — 5/29/2025 @ 1:40 pm

aphrael (2a9289) — 5/29/2025 @ 10:26 am

On the other hand, I could see an argument that tariffs deal with the national debt by raising revenue and therefore helping reduce the accumulation of debt.

But there’s no sudden change.

Sammy Finkelman (e4ef09) — 5/29/2025 @ 2:41 pm

Joe, I agree with you on the broad assertion that congress has failed in its duties in many many ways.

I disagree, except maybe lately. The fault (sorry, Rip) is due to the Supreme Court in 1983, killing the restraint that Congress imposed in the 1930s on powers that it delegated.

Before Chadha, Congress could block any action taken under a delegated power — such as a tariff — by the majority vote of either House. The basis for this was that either House could have blocked the action had the power NOT been delegated by voting it down (or ignoring it). The President’s agreement was not necessary, and indeed unlikely.

After Chadha (which left all prior delegations in place) Congress had to pass a new law, then override the expected presidential veto in order to reclaim powers that the Constitution had assigned to them.

This was a huge judicial transfer of power to the Executive, possible unmatched in our history. Perhaps Congress could have found a way to claw back its delegations, but they didn’t. The restraint these days is based on the Administrative Procedures Act and the judge-created Major Issues Doctrine.

Creating the Court that ruled today seems to have had an effect as well. But it’s a pity that White and Rehnquist didn’t prevail ion 1983.

Kevin M (081085) — 5/29/2025 @ 2:49 pm

Where is the update! Tariffs okay again.

Dick Dutton (ddc02c) — 5/29/2025 @ 2:51 pm

We’ll see.

You said that when I predicted the current ruling. It sounds a lot like DCSCA’s “Pfft.”

Kevin M (081085) — 5/29/2025 @ 2:52 pm

Presumably a future court would also find that tariffs do not “deal with” climate change or the national debt.

A 1000% tariff on imported gasoline-powered cars would be a heck of a lot more in line with a Climate Change “crisis” than Trump’s fentanyl tariffs on Canada. As would an “emergency EO” to block any needed certification of domestic gasoline cars.

As far as the Debt is concerned, Trump’s impoundment attempts would have a better chance if in response to a concerted attack on deficit spending to avoid an “impending default.”

Kevin M (081085) — 5/29/2025 @ 2:57 pm

We’ll see.

You said that when I predicted the current ruling. It sounds a lot like DCSCA’s “Pfft.”

Kevin M (081085) — 5/29/2025 @ 2:52 pm

“We’ll see” acknowledges that neither of us can fully predict the future. “Pfft” is a dismissal without any acknowledgment.

Rip Murdock (d2a2a8) — 5/29/2025 @ 2:57 pm

A 1000% tariff on imported gasoline-powered cars would be a heck of a lot more in line with a Climate Change “crisis” than Trump’s fentanyl tariffs on Canada. As would an “emergency EO” to block any needed certification of domestic gasoline cars.

Under what constitutional (or statutory) authority could a president impose such a tariff?

Rip Murdock (d2a2a8) — 5/29/2025 @ 2:59 pm

I’m still banking on Somin & Co. prevailing.

Considering the insipid arguments that Trump’s mouthpieces made at the CoIT, I’d bank on any competent counsel who was opposing them.

Kevin M (081085) — 5/29/2025 @ 3:02 pm

“We’ll see” acknowledges that neither of us can fully predict the future. “Pfft” is a dismissal without any acknowledgment.

Po-TAY-to; Po-TAH-to.

Kevin M (081085) — 5/29/2025 @ 3:03 pm

“We’ll see” acknowledges that neither of us can fully predict the future. “Pfft” is a dismissal without any acknowledgment.

Both are refusals to accept losing the argument.

Kevin M (081085) — 5/29/2025 @ 3:04 pm

Ouch:

In a ruling heard ’round the world, the U.S. Court of International Trade on Wednesday blocked President Trump’s sweeping tariffs. This is an important moment for the rule of law as much as for the economy, proving again that America doesn’t have a king who can rule by decree.
………..
No other President has used (the International Emergency Economic Powers Act) to impose tariffs. As the trade court explains, Richard Nixon used the law’s precursor, the Trading With the Enemy Act, in 1971 to impose 10% tariffs for a short period to address a balance of payments problem. The Justice Department said Mr. Trump’s tariffs are no different.

Not so. As the panel notes, Nixon tariffs were upheld by an appeals court because they were a “limited surcharge” and “temporary measure calculated to help meet a particular national emergency, which is quite different from imposing whatever tariff rates he deems desirable.” The latter is what Mr. Trump did, at one point jacking up rates to 145% on China.
………..
Mr. Trump invoked IEEPA because he wanted to impose tariffs as he sees fit. But the Constitution doesn’t let the President ignore Congress and do whatever he wants.
………..
………..The court’s ruling effectively slams the door on IEEPA as a basis to impose tariffs. This means a future Democratic President can’t declare a climate emergency and wield tariffs to punish countries for CO2 emissions. Conservatives ought to cheer this restraint on one-man rule.
………..

Rip Murdock (d2a2a8) — 5/29/2025 @ 3:08 pm

Both are refusals to accept losing the argument.

Kevin M (081085) — 5/29/2025 @ 3:04 pm

It is ending an argument that has no resolution; what is said here has no influence outside of this forum.

Rip Murdock (d2a2a8) — 5/29/2025 @ 3:10 pm

Under what constitutional (or statutory) authority could a president impose such a tariff?

Despite your assertions, IEEPA contains the authority to declare tariffs (or other trade actions, such as import bans) in an Emergency in which the nation is significantly affected by external forces. Those orders are limited and must address the alleged Emergency. See CoIT 25-66, page 25.

Because of the Constitution’s express allocation of the tariff power to Congress, see U.S. Const. art. I, § 8, cl. 1, we do not read IEEPA to delegate an unbounded tariff authority to the President. We instead read IEEPA’s provisions to impose meaningful limits on any such authority it confers. Two are relevant here. First, § 1702’s delegation of a power to “regulate . . . importation,” read in light of its legislative history and Congress’s enactment of more narrow, non-emergency legislation, at the very least does not authorize the President to impose unbounded tariffs. The Worldwide and Retaliatory Tariffs lack any identifiable limits and thus fall outside the scope of § 1702. Second, IEEPA’s limited authorities may be exercised only to “deal with an unusual and extraordinary threat with respect to which a national emergency has been declared . . . and may not be exercised for any other purpose.” 50 U.S.C. § 1701(b) (emphasis added). As the Trafficking Tariffs do not meet that condition, they fall outside the scope of § 1701.

Taxing or banning the importation of gasoline cars to fight Climate Change is not and absurd stretch. You might dispute the need or the efficacy but there is a strong internal logic which Trump’s actions do not ahve.

Kevin M (081085) — 5/29/2025 @ 3:19 pm

The Court of International Trade did Trump a favor; he should let it go and move on (fat chance):

………..
The story isn’t good for the GOP. While President Trump’s general job-approval numbers in the RealClearPolitics average on Wednesday were 47.8% approve to 49.7% disapprove, on handling the economy he was at 42.3% approve to 52.8% disapprove.

His tariff demands are weighing him down. Only 37% of Americans told a May 15 Marquette Law School poll that they approve of tariffs, while 63% disapproved. Fifty-eight percent said tariffs hurt the U.S. economy; a mere 32% believe they help. That starts to explain why stock markets drop when Mr. Trump rattles his trade saber and rebound when he walks back his tariff threats.

The president’s frenetic back-and-forth on the subject, declaring a trade war one day then postponing new tariffs the next, leaves voters confused. ………
………..
………..Last month Mr. Trump acknowledged tariffs would mean higher prices for Americans. “Maybe the children will have two dolls instead of 30,” he said, admitting they’d “cost a couple of bucks more.” Commerce Secretary Howard Lutnick later contradicted him, saying, “Don’t buy the silly arguments that the U.S. consumer pays.” Instead, “businesses and the countries” exporting to the U.S. will “primarily eat the tariff.”

Maybe these apparent flip-flops were all planned by the master of the Art of the Deal. But to many, it looks like cleanup on aisle six.
…………
Americans’ everyday experiences as we shop and work are already reinforcing that we—not the exporters or importers—will pay most of Mr. Trump’s tariffs.
…………
New-home construction permits dropped nearly 5% in April. The National Association of Homebuilders confidence index fell to 34%, well below the 50% mark that indicates builders are upbeat about the future. This was in part because tariffs will raise prices for concrete, pipe, drywall, lumber and other significantly imported items. ……..

The administration’s messaging is a muddled mess. Republicans should hope the president really believes in reciprocity—the policy that if countries lower their tariffs, we’ll lower ours. He should have confidence that America can compete if the playing field is level.
…………
Unless reciprocity prevails, the president’s chaotic trade talk will badly damage Republicans in the midterms. And if the House or Senate flips, the president will find it much harder to advance his priorities in his final two years. Voters won’t blame foreign countries for higher prices or fewer goods. They’ll blame Donald Trump and his Republican Party.
##########

Rip Murdock (d2a2a8) — 5/29/2025 @ 3:20 pm

In a ruling heard ’round the world, the U.S. Court of International Trade on Wednesday blocked President Trump’s sweeping tariffs.

The did not block them through any injunction, they just entered a final judgement as a matter of Law.

Kevin M (081085) — 5/29/2025 @ 3:21 pm

The Court of International Trade did Trump a favor

He will double down. Probably have some stooge threaten to impeach them.

Kevin M (081085) — 5/29/2025 @ 3:22 pm

Taxing or banning the importation of gasoline cars to fight Climate Change is not and absurd stretch. You might dispute the need or the efficacy but there is a strong internal logic which Trump’s actions do not ahve.

Kevin M (081085) — 5/29/2025 @ 3:19 pm

As your quote states

at the very least (the IEEPA) does not authorize the President to impose unbounded tariffs. The Worldwide and Retaliatory Tariffs lack any identifiable limits and thus fall outside the scope of § 1702. Second, IEEPA’s limited authorities may be exercised only to “deal with an unusual and extraordinary threat with respect to which a national emergency has been declared . . . and may not be exercised for any other purpose.”

Since any “climate emergency” is not “an unusual and extraordinary threat” (climate change has been occurring for decades) any such tariffs declared by a President would “lack any identifiable limits” and the IEEPA wouldn’t provide any authority to do so. A future President might try, but this case would serve as a precedent (assuming it’s upheld on appeal), to overturn any tariffs or sanctions.

Hopefully by that time Congress will have amended or repealed the IEEPA. It is an absurd stretch.

Rip Murdock (d2a2a8) — 5/29/2025 @ 3:37 pm

In a ruling heard ’round the world, the U.S. Court of International Trade on Wednesday blocked President Trump’s sweeping tariffs.

The did not block them through any injunction, they just entered a final judgement as a matter of Law.

Kevin M (081085) — 5/29/2025 @ 3:21 pm

It wasn’t a final judgment, it was a summary judgment. It won’t be final until we hear from the Supremes (sometime after October 2025).

Plaintiffs’ Motions for Summary Judgment are granted, and their Motions for Preliminary Injunction are denied as moot. Judgment will enter accordingly.

Rip Murdock (d2a2a8) — 5/29/2025 @ 3:45 pm

Kevin M (081085) — 5/29/2025 @ 3:22 pm

He will double down. Probably have some stooge threaten to impeach them.

He’s appealed it. It has been stayed by a federal appeals court (probably because not doing that could create even more chaos)

The Court of International Trade is now out of the picture except to the degree its opinion may be followed by the Supreme Court..

The Supreme Court will have a problem deciding on the exact limit of the president’s power but it is easy to say that Trump’s claims go well beyond his authority.

Nobody in the media was awaiting this decision.

Sammy Finkelman (e4ef09) — 5/29/2025 @ 4:00 pm

Rip Murdock (d2a2a8) — 5/29/2025 @ 3:37 pm

Hopefully by that time Congress will have amended or repealed the IEEPA. It is an absurd stretch.

Senator Grassley has a bill limiting any changes the president makes to 60 days unless ratified by Congress as a law.

https://www.grassley.senate.gov/news/news-releases/grassley-cantwell-introduce-bill-to-restore-congress-constitutional-role-in-trade

Sammy Finkelman (e4ef09) — 5/29/2025 @ 4:03 pm

Kevin M (081085) — 5/29/2025 @ 2:49 pm

After Chadha (which left all prior delegations in place) Congress had to pass a new law, then override the expected presidential veto in order to reclaim powers that the Constitution had assigned to them.

There’s another way.

Have anything the president does automatically expire after a period of time unless enacted unto law by Congress.

There’s also a law (which here functions as a rule of the House or the Senate) creating exceptions to the ordinary rules of Congress like the filibuster or a rule by the House Rules committee

Sammy Finkelman (e4ef09) — 5/29/2025 @ 4:09 pm

Senator Grassley has a bill limiting any changes the president makes to 60 days unless ratified by Congress as a law.

Sammy Finkelman (e4ef09) — 5/29/2025 @ 4:03 pm

Which is going absolutely nowhere. It won’t pass the House nor would it survive a presidential veto.

Rip Murdock (d2a2a8) — 5/29/2025 @ 4:10 pm

Since any “climate emergency” is not “an unusual and extraordinary threat” (climate change has been occurring for decades) any such tariffs declared by a President would “lack any identifiable limits” and the IEEPA wouldn’t provide any authority to do so. A future President might try, but this case would serve as a precedent (assuming it’s upheld on appeal), to overturn any tariffs or sanctions.

Climate Change or the National Debt, unlike the trade deficit, has been ACCUMULATING for years. People talk about a “tipping point” for both of them, where the crisis accelerates.

You might as well say that there is no reason to reform Social Security or Medicare because they’ve been hemorrhaging money for years. But there is obviously a point past which reform no longer avoidable, and the degree of change could be catastrophic to many.

In any event, Trump’s declaration is an obvious pretext. When the average summer temperature in Texas is 120 degrees, calling it an emergency won’t be a stretch.

Kevin M (081085) — 5/29/2025 @ 4:12 pm

Have anything the president does automatically expire after a period of time unless enacted unto law by Congress.

How do you fix all the delegations up to now? Every president will veto as it takes power away.

Kevin M (081085) — 5/29/2025 @ 4:13 pm

Climate Change or the National Debt, unlike the trade deficit, has been ACCUMULATING for years. People talk about a “tipping point” for both of them, where the crisis accelerates.

So what? Unlike what the President believes, tariffs aren’t the solution to every problem, actually they are the solution to very few problems, usually limited to specific countries or industries. Absent authority under the IEEPA, what statute could a president use to impose tariffs for a climate or national debt “emergency?” As the court said regarding the fentanyl smuggling, the tariffs imposed had no relation to the identified problem. Since the “climate emergency” is worldwide, any tariffs wouldn’t have an impact on a global problem. Tariffs also don’t have a relationship to the problem of the national debt.

The US has had persistent trade deficits since 1975. I would consider a trade deficit of $1.2 trillion (in 2024) to be a significant problem (which the court pointed out can be addressed under Section 122 of the 1974 Trade Act.)

Rip Murdock (d2a2a8) — 5/29/2025 @ 4:31 pm

Strike Two:

A federal judge blocked the Trump administration from collecting tariffs from a pair of Illinois toy importers, the second court in two days to nullify President Donald Trump’s top strategy for trade deals.

U.S. District Judge Rudolph Contreras ordered the administration May 29 not to collect tariffs from Learning Resources and hand2mind based in Vernon Hills, Illinois, while the case is litigated. He paused the impact of his ruling to give the government two weeks to appeal his decision.
………..
The statute “does not authorize the President to impose the tariffs,” Contreras wrote in his two-page order.
………..
“If the court were to conclude otherwise, granting an injunction would kneecap the president on the world stage, cripple his ability to negotiate trade deals and imperil the government’s ability to respond to future national emergencies,” (Brett Shumate, a Justice Department lawyer) said. “Granting any form of relief against the president under IEEPA tariffs would be catastrophic for our national security and foreign policy.”
………..

Rip Murdock (d2a2a8) — 5/29/2025 @ 5:08 pm

Absent authority under the IEEPA

Put that goal post down.

Kevin M (5c7862) — 5/29/2025 @ 5:20 pm

Kevin M (5c7862) — 5/29/2025 @ 5:20 pm

Is that the extent of your response to my post?

Rip Murdock (d2a2a8) — 5/29/2025 @ 5:47 pm

Rip Murdock (d2a2a8) — 5/29/2025 @ 5:08 pm

More:

The CIT decision equivocates on (whether IEEPA doesn’t grant any power to imposes tariffs at all), limiting itself to holding that IEEPA at least doesn’t grant the sweeping virtually unlimited power claimed by Trump, and necessary to justify the “Liberation Day” tariffs. By contrast, Judge Contreras concludes that IEEPA doesn’t grant any tariff authority of any kind. Here is an excerpt from his ruling:

IEEPA does not use the words “tariffs” or “duties,” their synonyms, or any other similar terms like “customs,” “taxes,” or “imposts.” It provides, as relevant here, that the President may, in times of declared national emergency, “investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit” the “importation or exportation” of “property in which any foreign country or a national thereof has any interest.” 50 U.S.C. § 1702(a)(1)(B). There is no residual clause granting the President powers beyond those expressly listed. The only activity in Section 1702(a)(1)(B) that could plausibly encompass the power to levy tariffs is that to “regulate . . . importation….”

The Court agrees with Plaintiffs that the power to regulate is not the power to tax……… Tariffs are, by contrast, schedules of “duties or customs imposed by a government on imports or exports.” ……..To regulate is to establish rules governing conduct; to tariff is to raise revenue through taxes on imports or exports……Those are not the same…….
……….
Defendants’ interpretation could render IEEPA unconstitutional. IEEPA provides that the President may “regulate . . . importation or exportation.” 50 U.S.C. § 1702(a)(1)(B). The Constitution prohibits export taxes. ……..If the term “regulate” were construed to encompass the power to impose tariffs, it would necessarily empower the President to tariff exports, too. The Court cannot interpret a statute as unconstitutional when any other reasonable construction is available.

Judge Contreras’ decision is in large part a jurisdictional ruling on whether cases challenging the IEEPA tariffs must be filed in CIT (he concludes they need not be, because IEEPA doesn’t authorize tariffs). ……..
………..

Rip Murdock (d2a2a8) — 5/29/2025 @ 5:57 pm

All of post 73 should have been blockquoted, except the link.

Rip Murdock (d2a2a8) — 5/29/2025 @ 5:58 pm

Trump’s Team Plots Plan B for Imposing Tariffs

With that strategy under threat, the president’s team is weighing a twofold response, according to people familiar with the matter.

First, the administration is considering a stopgap effort to impose tariffs on swaths of the global economy under a never-before-used provision of the Trade Act of 1974, which includes language allowing for tariffs of up to 15% for 150 days to address trade imbalances with other countries, the people said. That would then buy time for Trump to devise individualized tariffs for each major trading partner under a different provision of the same law, used to counter unfair foreign trade practices.

That second step requires a lengthy notification and comment process, but is seen by administration officials as more legally defensible than the tariff policy that was found to be illegal this week. The alternative provision has been used many times in the past, including for Trump’s first-term tariffs on China.

Peter Navarro, senior counselor for trade and manufacturing, appeared to confirm that the administration is considering a twofold alternative tariff plan, which would first use Section 122 of the 1974 trade law, and then Section 301.

“Those are the kinds of thoughts” the economic team is considering, he said when asked about those provisions on Bloomberg TV. Navarro also suggested that the administration could use the Smoot-Hawley Tariff Act of 1930, which has a provision that allows for tariffs on nations that discriminate against America. The U.S. could also expand the use of tariffs imposed citing national-security concerns.

SMDH

Kevin M (d3cab6) — 5/29/2025 @ 7:06 pm

By contrast, Judge Contreras concludes that IEEPA doesn’t grant any tariff authority of any kind.

Contreras is stepping outside her lane. The expertise on this resides at the CoIT.

Kevin M (d3cab6) — 5/29/2025 @ 7:07 pm

The Court cannot interpret a statute as unconstitutional when any other reasonable construction is available.

It’s conceivable that one interpretation of the Act could be unconstitutional without other parts of the Act being affected at all. Especially after all those contortions.

Kevin M (d3cab6) — 5/29/2025 @ 7:10 pm

Contreras is stepping outside her lane. The expertise on this resides at the CoIT.

Kevin M (d3cab6) — 5/29/2025 @ 7:07 pm

Judge Rudolph Contreras is a man. See post 71.

Rip Murdock (261350) — 5/29/2025 @ 7:37 pm

Kevin M (d3cab6) — 5/29/2025 @ 7:06 pm

What the administration should have done in first place.

Rip Murdock (261350) — 5/29/2025 @ 7:40 pm

Interesting note about the Trump-appointed judge in the case…

While reading this, it warrants mention that the only Trump-appointee involved in the USCIT decision was Timothy Reif.

Except Reif was *not* a Federalist Society nominee.

He was a staffer of Robert Lighthizer, Trump’s arch-protectionist tariff guru from the 1st term.

Paul Montagu (92c87c) — 5/30/2025 @ 6:27 am

Judge Rudolph Contreras is a man. See post 71.

In England that would be a crime.

Kevin M (8b536b) — 5/30/2025 @ 7:50 am

What the administration should have done in first place.

Use Smoot-Hawley?

Kevin M (8b536b) — 5/30/2025 @ 7:51 am

I applaud Trump’s misuse of every available statute. Should make repealing them easier down the road.

Kevin M (8b536b) — 5/30/2025 @ 7:53 am

Of course, they didn’t repeal Smoot-Hawley, so maybe they just like leaving loaded guns around in the schoolyard.

Kevin M (8b536b) — 5/30/2025 @ 7:54 am

5/28/2025

Court To Trump: No to Imposing Tariffs Under Emergency Powers

85 Responses to “Court To Trump: No to Imposing Tariffs Under Emergency Powers”

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