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25 Jul 2025 11:21:41 UTC

Opinion
George F. Will
This tariff court case could rein in the rampant Trump presidency
Trump is a hare, and the federal courts are a tortoise. We know how that
fable turned out.

President Donald Trump in the Oval Office at the White House on Tuesday.
(Chip Somodevilla/Getty Images)
Donald Trumps destructive Liberation Day tariffs, announced April 2,
should result in a constructive judicial ruling that significantly
sedates todays hyperactive presidency. Next Thursday, a federal appeals
court will hear oral arguments about this: May the president, by making
a declaration (that he claims is exempt from judicial review) of a
national emergency and an unusual and extraordinary threat, impose
tariffs (taxes paid by U. S. consumers) whenever he wants, at whatever
level he wants, against whatever country he wants, on whatever products
he wants, for as long as he wants?
A unanimous lower court has said, essentially: Of course not. Eighteen organizations, spanning the jurisprudential spectrum, have filed amicus
briefs opposing the president. They demonstrate the following:
After the preamble, the Constitutions first word is all: All legislative
Powers are vested in Congress. And the power to tax is listed first
among Congresss enumerated powers. Because the Constitution vests in
Congress the power to lay and collect duties and imposts, presidential authority to impose them must derive from a statute.

Trump relies on the International Emergency Economic Powers Act of 1977.
But it nowhere includes the term tariff or any of its synonyms, and no
previous president has claimed that it authorizes tariffs. Todays
president argues that IEEPAs conferred power to regulate trade implies
the presidential power to tax it. This is an astonishingly radical claim because hundreds of statutes authorize innumerable agencies to regulate,
but not to tax. Congress has often authorized tariffs, but always with
specific substantive, temporal and procedural limitations on
presidential discretion.

IEEPAs authority can be exercised only in an emergency involving an
unusual and extraordinary threat, which trade deficits the presidents obsession are not. Unusual? He says they have been persistent for half
a century.

Recently, the Supreme Court said the Federal Communications Commissions regulation of communications carriers could include an FCC-imposed tax
on them but only because Congress explicitly authorized this. Otherwise,
the FCC tax would violate two related rules, the major questions
doctrine and the nondelegation doctrine.

The former stipulates that for courts to construe statutes to grant the executive broad powers, Congress must speak clearly about authorizing
executive decisions of vast economic and political significance.
Congress did no such thing with IEEPA.

The Supreme Court says the nondelegation doctrine, which undergirds the separation of powers, bars Congress from transferring its legislative
power to another branch of Government without providing an intelligible principle to guide the delegees use of discretion. Todays president
insists that IEEPA grants presidents unbounded discretion in wielding a
power that is neither granted to him by the Constitution nor delegable
by Congress.
Constitutional scholar Philip Hamburger says the Constitutions framers
thought the natural dividing line between legislative and nonlegislative
power was between rules that bound subjects and those that did not.
Tariffs bind Americans seeking to purchase imports.

The second law enacted by the first Congress established detailed tariff
rates (e. g. , 1 cent per pound of brown sugars). Tariff changes were
largely Congresss domain until the 1930s, when Congress began empowering presidents to negotiate subject to congressional approval tariff
reductions. In 1974, Congress authorized the president to impose
surcharges of limited amount (15 percent) and duration (five months).
And an appellate court stressed in 1975 that a declaration of national emergency is not a talisman enabling the president to rewrite the tariff schedules because this would unconstitutionally authorize the exercise
of an unlimited power.

The 1974 law authorized the president to impose tariffs only to address balance-of-payments deficits. Trumps idiosyncratic tariffs punish
Brazil, with which there is a U. S. trade surplus, because he objects to Brazils internal politics.

States of emergency (51 are extant) tempt presidential abuses (the
pandemic emergency was Joe Bidens pretext for trying to cancel $430
billion in student debt) and are difficult to end: Congress cannot
easily reclaim power delegated to the president, who can veto Congresss retrieval attempts. Given the two-thirds vote requirement for veto
overrides, delegation tends to be a ratchet clicking to the presidents advantage.

The president claims his declaration of an emergency is unreviewable
because it involves foreign relations. But tariffs, which have domestic consequences and purposes, properly are congressional exercises of a constitutionally enumerated power and must come from statutes.

Todays president is a hare, darting here and there. The judiciary is
generally a tortoise, slow because it is deliberative. But you know the
fable. And here is a fact: This tariff case could markedly restrain this rampant presidency.
By George F. Will
George F. Will writes a twice-weekly column on politics and domestic and foreign affairs. He began his column with The Post in 1974, and he
received the Pulitzer Prize for commentary in 1977. His latest book,
"American Happiness and Discontents, " was released in September 2021.
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https: //www. washingtonpost. com/opinions/2025/07/25/trump-tariffs- power-courts/

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