Will SCOTUS Stop Trump's IEEPA Tariffs?

At The Hill, Marc Busch and Jennifer Hillman consider how the Supreme Court might rule on Trump's IEEPA "Liberation Day" tariffs, assuming it takes an appeal of the recent Court of Appeals ruling against them.

Given the amount of deference to the President from the Supreme Court so far, this will be interesting reading for anyone who knows that their upholding the lower court ruling isn't a slam-dunk.

The authors argue that, while the two courts will examine the legal question from differing perspectives, they will likely agree:

At the Court of Appeals, the focus is on the statutory text, legislative history, past precedent and the limits Congress built into the International Emergency Economic Powers Act. Expect a close reading of whether "regulate importation" can be read to mean "raise tariffs," and scrutiny on what guardrails, if any, Congress had in mind when it granted the president such sweeping emergency powers.

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They will weigh whether Congress meant for the act to function as a backdoor to bypass those [earlier, more restrictive] statutes, all of which contain procedural and substantive limitations that Trump's tariffs sidestep.

Appellate judges will ask whether reading the act broadly enough to cover Trump's tariffs would render these other trade statutes superfluous. They will consider whether Congress, in giving the president a wide berth in foreign policy, nonetheless drew a line at tariff policy -- a line Trump has now crossed.

On the other hand...

The Supreme Court is a different story. When the act's tariff cases get there (and they almost certainly will) the justices will step back. This isn't to say they will ignore statutory text, but their focus will be on the broader separation-of-powers stakes, starting with the Constitution's grant of the power to raise tariffs to Congress, not the president.

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Historically, the court has been reluctant to second-guess the executive on these grounds, especially when Congress has delegated authority in broad-brush terms, as it did in the International Emergency Economic Powers Act. But that deference has limits, and recent opinions have shown an appetite for policing the boundaries of congressional delegations, particularly when they threaten to swallow entire statutory regimes.

Another key difference: The Supreme Court will be thinking about precedent. A ruling that blesses Trump's use of the act for tariffs would not just rewrite trade law -- it would expand the president's emergency powers into new terrain, with no obvious limiting principle. Future presidents could invoke it to sidestep Congress on taxes, regulations, even domestic commerce, so long as they framed it as a foreign policy "emergency."

I hope Busch and Hillman have read the tea leaves correctly, regarding the ruling. They certainly grasp its importance, even if they state it in measured terms.

-- CAV