This paper attempts to objectively summarize the decision of the Court of International Trade to permanently enjoin most of the Trump administration's tariffs.
The (unsigned) per curium1 opinion in V.O.S. Selections v. U.S. addressed the issue of whether the president has constitutional and statutory authority under the International Emergency Economic Powers Act (IEEPA) to impose (1) Worldwide and Retaliatory Tariffs against most countries; and (2) Trafficking Tariffs against Canada, Mexico, and China.
The Constitution grants to Congress the exclusive power to "lay and collect Taxes, Duties, Imposts and Excises" and "regulate Commerce with foreign Nations. Constitution Art. I, § 8, Clauses 1, 3. Under the IEEPA, Congress has constitutionally delegated some of this power to the president to impose tariffs "to deal with an unusual and extraordinary threat with respect to which a national emergency has been declared . . . and [this delegation of power] may not be exercised for any other purpose. 50 U.S.C. §1701(b).
The president has enacted (1) Worldwide and Retaliatory Tariffs to address trade deficits, which currently impose a 10% tariff for all countries with additional country specific tariffs taking effect in July; and (2) Trafficking Tariffs to address drug trafficking at the borders, which currently imposes a 25% tariff on Mexican and Canadian products and a 20% tariff on Chinese products. V.O.S. Selections v. U.S., Slip Op., pp. 10–15.
In V.O.S. Selections v. U.S., the Court of International Trade decided that both of (1) the Worldwide and Retaliatory Tariffs; and (2) the Trafficking Tariffs were enacted by the Executive Branch without authority of Congress under IEEPA.
The court stated that for a president's tariff to be authorized by the IEEPA:
- "there must be a "threat . . . which has its source in whole or substantial part outside of the United States, to the national security, foreign policy, or economy of the United States";
- "this threat must be "unusual and extraordinary"";
- "a national emergency must be declared with respect to the treat";
- "the President's exercise of IEEPA authority must "deal with" the threat.
Id.,p. 36 (quoting 50 U.S.C. § 1701).
The Worldwide and Retaliatory Tariffs are intended to address a national emergency manifested by the U.S. trade deficit. The court held that any interpretation of the IEEPA permitting such broad delegation of Congress's tariff power to address the ostensible emergency of a long-outstanding trade deficit would be unconstitutional.2
The Trafficking Tariffs imposed on Canada, Mexico, and China are intended to leverage foreign nations to address national emergencies at the Northern and Southern Borders and with fentanyl and drug trafficking. The bona fides of these national emergencies were not argued or decided in this case. Instead, the court reasoned that leveraging a foreign nation with tariffs is not a direct manner of dealing with a national emergency, stating: "[i]f "deal with" can mean "impose a burden until someone else deals with," then everything is permitted." Id., p. 46.
The court ultimately permanently enjoined both the Worldwide and Retaliatory Tariffs as well as the Trafficking Tariffs on a construed motion for summary judgment.
Footnotes
1. Professor John Graebe instructed my Constitutional Law class that "per curium" is Latin for "I am not going to put my name on that."
2. Specifically, the court claimed such interpretation would be (1) against the nondelegation doctrine (lacking an "intelligible principle" and "meaningful limits" for delegation of Congressional powers); (2) against the major questions doctrine. V.O.S. Selecttions v. U.S., Slip. Op. pp. 26–28.
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