Professor Suing Over IEEPA Says Trump's Tariffs Imposed on Whims
One of the lawyers representing five importers suing President Donald Trump over his emergency tariffs said that the president's approach to tariffs, constantly threatening various new rates, sometimes backing off, and sometimes not, isn't just a "menace to the economy," it also "is totally at odds with the rule of law."
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George Mason University law professor Ilya Somin, co-counsel for V.O.S. Selections Inc. v. Trump, talked about the legality of tariffs under the International Emergency Economic Powers Act during a Cato Institute webinar May 27. Cato is a libertarian think tank.
Somin said that businesses rely on clear rules, decided by a legislature in advance of changes. This, on the other hand, is the tariff schedule changing at any moment, on the whim of one man.
Somin said Trump has used emergency powers to start the greatest trade war since the Great Depression.
He said the tariff rates for 57 countries announced in April "have nothing to do with anything reciprocal," given that Switzerland and Israel have zero tariffs on U.S. goods.
He also scoffed at the idea that movies filmed overseas are a national security threat.
"There’s no end to the powers that are claimed [by the administration] under this statute," he said. Under IEEPA, Trump can impose "any tariffs on any nation in the world as high as he wants for as long as he wants."
He said at oral arguments in his case, "it seemed like the judges were highly skeptical" (see 2505130052). "That skepticism is for good reason," he added. "The IEEPA statute does not mention tariffs at all."
Somin said his side offered judges a number of reasons to strike down the tariff -- either that the law itself cannot be used for tariffs, or that it can, but only in the case of an emergency, and these declared emergencies do not qualify. For instance, the tariffs, which are aimed at lowering bipartisan trade deficits, are imposed on countries that the U.S. has a trade surplus with.
"Let’s assume for the moment the statute is somehow ambiguous," he continued. "Then the major questions doctrine comes into play." For such an economically significant action -- a $2 trillion tax increase over the next decade, Somin estimated -- Congress would have had to clearly authorize the action in its statute.
"If this is not a major question, I do not know what is," he said.
The last plank would be that it's unconstitutional for Congress to delegate that much power on tariffs, he said, though he doesn't think the Supreme Court will choose that reason to end the tariffs. Still, he said, the Supreme Court has said there have to be some limits to delegation.
Cato Institute Senior Fellow Walter Olson noted that Trump has bragged that "almost every country, every company has come around trying to butter him up, trying to offer favors, trying to get on his good side."
He added, "Apple managed to get on his good side for a while," but Trump's views on Apple have since darkened. Trump said that imported cellphones would be hit with a 25% tariff, and that he wants cellphones assembled in the U.S., not just outside China. "This is power that is felt as arbitrary power," Olson said.