President Trump has taken an expansive view of his authority to levy tariffs in his second term trade war with nearly every U.S. trading partner.
Calling on the International Emergency Economic Powers Act, the Trump administration has imposed tariffs at rates not seen since the 1930s, claiming to address a national emergency caused by fentanyl trafficked across the border and persistent trade deficits.
Defending those actions, on Monday, Trump’s Justice Department entered an extraordinary letter into the tariff litigation now before the U.S. Court of Appeals for the Federal Circuit, which will soon issue a ruling.
That letter points to a recurrent theme in Trump’s trade approach, a weak legal foundation for his actions papered over with an even more flimsy rationale for preserving it.
The letter from Solicitor General D. John Sauer and Assistant Attorney General Brett Shumate claims that President Trump’s July announcement of “the largest trade agreement in history” with the European Union, plus other recent deals with Indonesia, the Philippines, Japan and the United Kingdom, proved the tariffs should stay in place.
That argument might make for a good press release. But in a court of law, it’s entirely beside the point.
The central question before the court isn’t whether the president’s tariffs have produced diplomatic headlines (even though they don’t amount to much). It’s whether the International Emergency Economic Powers Act gives the president the authority to impose them in the first place.
Congress passed the act to give presidents a way to address genuine national emergencies, things like hostile foreign actions, espionage or terrorism — not as a catch-all to impose peacetime tariffs whenever it might create negotiating leverage.
In fact, the U.S. Court of International Trade, whose decision to vacate Trump’s tariffs is now under appeal, held that the government’s argument for using tariffs to “pressure” countries to address the proclaimed emergencies “does not comfortably meet the statutory definition of ‘dealing with’ the cited emergency.”
It reached that stance because the argument would allow the president “to take whatever actions he chooses simply by declaring them ‘pressure’ or ‘leverage’ tactics” to extract concessions unconnected to the declared threat.
The Justice Department continues to push for an expansive reading of the president’s authority to levy tariffs. But the letter takes this a step further.
It offers a string of doomsday predictions: Without international emergency powers tariffs, “trillions of dollars” from other countries won’t be paid, the U.S. could see a “1929-style result,” millions might lose their homes and jobs, even Social Security and Medicare could be “threatened.”
That’s not legal analysis. It’s fearmongering. And it’s untethered from any evidence in the record. Most of the so-called deals are not even written down, or available to review. Of the announcements made on the content of those deals, serious questions have been raised about the level of commitments, and their durability.
Furthermore, the promised investment may not even be possible, and contradict the president’s goal of lowering the trade deficit, which is central to his actions under the International Emergency Economic Powers Act.
It also contradicts the Justice Department’s previous arguments for a stay of the lower court’s ruling, claiming that the government could refund the tariffs if it lost the appeal.
Even if the deals the president cites were, in fact, secured because of these tariffs, it still wouldn’t make them legal. You don’t get to break the law to make a deal, then point to the deal as proof the law should bend to fit your actions. That’s bootstrapping, plain and simple.
Nor is it true that the U.S. has no other trade tools at its disposal. There are various other trade authorities that the president could lean on. The president could also negotiate actual trade agreements with the support of Congress.
The irony is that the Justice Department’s own letter inadvertently proves the critics’ point. If the president believes these tariffs are so essential, he should ask Congress for the authority to impose them.
That’s how the separation of powers works. In the meantime, the courts are there to ensure that even the most popular, politically expedient or “powerful” policy stays within legal bounds.
Tariffs based on the International Emergency Economic Powers Act were never legal. No amount of retroactive dealmaking can change that. Grasping at straws for a new rationale for Trump’s self-inflicted tariff wound adds insult to that injury. The Court of Appeals should not be swayed by this desperate appeal.
A clear and decisive ruling against the tariffs is necessary to stop further abuses of executive authority on trade, otherwise, this version of “emergency powers” will become the new normal in U.S. trade law, and Americans will pay the price, not just in their wallets.
Marc L. Busch is the Karl F. Landegger Professor of International Business Diplomacy at the Walsh School of Foreign Service, Georgetown University. Inu Manak is a fellow for Trade Policy at the Council on Foreign Relations.
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