A Third Way on IEEPA for SCOTUS?

Recently, I have considered what I -- no legal scholar! -- regard as the best arguments for why the Supreme Court might rule one way or another on Trump's IEEPA tariffs. Given that the Court has agreed to review the relevant cases, this won't be a speculative matter for long.

In my prior estimation, the lower courts correctly ruled against the tariffs, but there is a good chance that the Supreme Court might uphold them. SCOTUS has long granted the President more power to act unilaterally in foreign affairs than in domestic.

Enter law professor John Yoo of the Civitas Institute, who argues that I am wrong on both counts!

Yoo holds that the two lower courts reached the right conclusion about the IEEPA tariffs -- that they are illegal -- but did so for the wrong reasons. In addition, although Yoo holds that such tariffs are authorized under the IEEPA, the rationale -- that there is the kind of emergency that would trigger the powers from the IEEPA -- is wrong, and that the tariffs are illegal on those grounds.

I not only find his argument worthwhile, but Yoo's conclusion addresses both of the very serious issues at once that the either alternative ruling would leave us to face. (Namely: A ruling against could hobble the President during an actual emergency, but a ruling for would leave the President with unlimited economic power.)

Yoo nicely ties all this together in his conclusion:

[T]he trade deficit does not rise to the level of an unusual and extraordinary threat. It is not unusual. The trade deficit has existed since the early 1970s. Indeed, as the Court acknowledges, President Richard Nixon imposed temporary across-the-board tariffs more than 50 years ago to try to reduce the trade deficit. The United States has gone through periods of positive and negative trade deficits in its history, just as we have positive or negative trade balances with individual nations even today. A trade deficit that has persisted for five decades is not unusual enough to constitute a national emergency.

Nor has the trade deficit suddenly presented a threat of great magnitude to US foreign policy, national security, or the economy....

One way to think of the limits on emergencies is to compare the trade deficit to climate change. IEEPA should not grant a future President broad economic power to, for example, sanction countries that may do too little to stop fossil fuel emissions, produce goods deemed by environmentalists to be too "dirty," or don't cooperate in misguided international agreements. But if "unusual and extraordinary threat" includes the trade deficit, it could plausibly include climate change. Climate change has been occurring for centuries, and results from long-term economic and social dynamics, but a future President could say that it harms the economy enough to justify the declaration of a national emergency. Supporters of Trump's tariffs would have little grounds on which to oppose a climate change emergency.

The Trump administration will certainly appeal to the Supreme Court. But the Justices may not grant the President the victory he seeks. The High Court could well reverse the cramped reading of IEEPA powers, which future Presidents will need to confront an honest emergency. But the Court could also address the logical prerequisite for those powers -- whether an emergency truly exists in the first place. If it does, the Court may still block the Trump tariffs to preserve emergency powers for when Presidents will really need them. [bold added]

I assume Yoo will be among the authors of the many amicus briefs I expect will flood the Court. I hope for the sake of our future security and freedom that the Court seriously considers his arguments.

-- CAV