On Wednesday, the U.S. Supreme Court will hear oral arguments to scrutinize the tariffs President Trump’s sweeping levied against every nation on earth. Trump invoked emergency powers from an obscure law to justify this move. Those now petitioning the Supreme Court to declare the tariffs unconstitutional have argued that whatever that obscure law says, Congress cannot delegate its exclusive powers — including the power to tax and to regulate foreign commerce — to the president. If that law delegates these powers, it is unconstitutional.
The petitioners have a point: Trump claims that his tariffs are not unconstitutional, because his unique discretion over foreign policy means Congress has not delegated away its powers. But in its attempt to sanction unprecedented authoritarian powers over domestic affairs, this argument distorts the meaning of the president’s actual foreign policy power. The president’s discretion over trade applies only in wartime against specific belligerents — not in perpetuity or even against our allies.
Trump’s argument’s kernel of truth is that the Constitution makes the president the commander in chief of the armed forces and chief negotiator of treaties. He does need discretion to repel imminent threats of force by foreign powers and to make alliances against them. In genuine crisis situations, he cannot wait for Congress to debate if he’s to defend the lives, liberties, and property of American citizens.
The law Trump cites to justify his tariff power, the International Emergency Economic Powers Act (IEEPA), in fact bears the mark of this constitutional legacy. As a useful amicus brief (by Aditya Bamzai of the UVA School of Law) in the current tariffs case indicates, the law is heir to the Trading with the Enemy Act of 1917, passed in World War I to allow the president to cut off all trade with an enemy nation in the event of a declared war against it. Obviously, to conduct a war, the commander in chief needs to be able to embargo trade that supplies material support to the enemy.
At first blush it might seem that if the law empowers the president to cut off all trade, it should allow him to regulate trade through tariffs. Jill Homan of the America First Policy Institute makes just the argument in another amicus brief in support of the president. But it is a slipshod argument. The IEEPA arises from the need to allow the president to impose powerful embargoes against specific military belligerents during declared wars. That is a more powerful use of force, but against a specific, threatening target. Trump’s tariffs, by contrast, have been imposed indefinitely against the whole world — including closely allied peaceful nations such as the UK, Canada, and France — in response to a merely “economic” threat.
The idea of a tariff on commerce with an enemy in wartime makes little sense. If an “enemy” can safely be traded with as long as he pays an extra bribe, he must not be very threatening. A truly threatening enemy, such as Germany or Japan during World War II, is one you’d embargo entirely to cut off fuel for their war effort.
Professor Bamzai points out that most of history leading up to the Trading with the Enemy Act involves total embargoes. The few exceptions are revealing. A fee was imposed on trade in cotton with Tennessee during the U.S. Civil War, but only when Tennessee had been militarily occupied and hostilities were ceasing. He also notes that fees were imposed on trade with Mexican ports during the Mexican-American War. But as another amicus brief against the tariffs points out, they were only against Mexican nationals — not U.S. citizens who pay tariffs — and only in ports that were occupied by the American military.
Whatever the trade restrictions in wars that were part of the president’s genuine foreign policy power, they applied only to trade with belligerent or occupied nations and only for the duration of the war. Contrast that with Trump’s tariffs: in the name of “foreign policy,” President Trump is, in effect, declaring economic “war” against the entire world, enemies and allies alike. But a real American foreign policy does recognize allies, like the United Kingdom and Canada.
The idea that the president is due some deference to manage his sweeping global tariffs in the name of “foreign policy” is a complete sham.
The IEEPA simply cannot give the president the power to impose a new global tariff scheme. Congress alone has the constitutional power to tax and to regulate foreign commerce, and it cannot delegate this power to the president in such unlimited fashion.
The IEEPA does include language ambiguous enough to suggest it gives that power to the president: it says he can “regulate” any “importation” that threatens the “economy” of the United States. But then if that justifies Trump’s tariffs, the Supreme Court must strike down these provisions as unconstitutional violations of the separation of powers.
The court must not permit the president to invoke his “foreign policy” sovereignty to justify these tariffs. It would mean virtually unaccountable discretion to enact a protectionist trade policy against the entire world for whatever duration constitutes a merely economic “emergency.” If no delimited, intelligible principle governs the congressional delegation, the separation of powers is dissolved and the door is opened to autocratic authoritarian control of the economy. The real targets will not be alleged threats from abroad, but the liberties of American citizens at home.
Ben Bayer, a Ph.D. in philosophy and formerly a professor, is a fellow and director of content at the Ayn Rand Institute. He writes and edits for the institute’s online publication, New Ideal.