Despite taking an oath (twice) to “preserve, protect and defend the Constitution of the United States,” Donald Trump clearly hasn’t read it. Article I, Section 8 gives Congress, not the president, the “Power To lay and collect Taxes, Duties, Imposts and Excises.”
So just as it did before with his first round of worldwide tariffs, the U.S. International Court of Trade here in New York has stepped in once again to rule Trump’s second broad tariff regime unlawful, the only conclusion it could have possibly reached after he invoked conditions that did not exist in justifying a 10% levy in the aftermath of his earlier tariff loss before the U.S. Supreme Court.
The International Court of Trade found that Trump did not have authority for his first tariffs under the International Emergency Economic Powers Act from 1977, a ruling upheld by the Supreme Court on Feb. 20. So what did he do? That same day Trump promulgated new tariffs under Section 122 of the Trade Act of 1974, which the International Court of Trade has now thrown out.
Again, the Constitution still applies, and it is Congress, not the president, that does tariffs.
Trump should internalize the fact that he simply does not have the authority he is claiming to have to unilaterally reshape the United States’ international trade posture, but we don’t realistically expect that he will. It has been Trump’s longtime modus operandi to simply push ahead with whatever he wants to do until he gets his way, whether that’s with his creditors, with other real estate barons, with the tax authorities, with women.
That approach has infected the whole of the executive branch now, and so even if the Supreme Court once again remembers its duty to read the Constitution and strikes these round two tariffs down, we imagine that it won’t be long before the White House — from which all decisions across the federal government now seem to flow — announces a third round of tariffs under some other tortured interpretation. That, too, would be struck down by the trade court, but in the meantime importers around the country, from giant corporations to individuals who simply want to buy single products from abroad, will be left mired in uncertainty.
Already, we’re in a stagnant low-hire-low-fire economy in part because no one really knows what to expect. Importers are owed $166 billion in refunds from the first set of now-struck-down across-the-board tariffs, which will come in a chaotic and wholly unnecessary refund process; consumers themselves, onto whom the costs were mostly passed, are not going to see much of that money.
Even if we do fully return to the status quo pre-tariffs, it’s clear that global trade will have been reoriented around this new reality, with consumers in other countries having moved on from American products that were hit with retaliatory tariffs and supply chains restructured to avoid importing to the U.S.
And all of this has happened because Trump seems to have an elementary school-level of understanding of trade relationships in which trade deficits are somehow the United States losing money as opposed to importing goods that we’re paying for — not only with some select strategic countries but every single other country in the world, regardless of size and resources and manufacturing. It’s hard to tell whether all of his economic advisers and trade officials are equally dense or simply cannot contradict the king, but it doesn’t really matter in the end.
The result is the same: an administration haphazardly torching the long-standing basis of our trade posture using nonexistent authorities in service of a ridiculous, rudimentary understanding of economic dynamics. In a sane world, Congress would put a stop to it and reassert its own power to regulate import duties; unfortunately, this particular GOP Congress seems content enough to be a lapdog watching Trump usurp them and damage the economy and our international standing.