Trump’s Tariff Policy Faces Another Legal Setback

“If at first you don’t succeed, try, try, and try again” (attributed to Robert the Bruce, king of Scotland).

 “Insanity is doing the same thing over and over again and expecting different results” (attributed to Albert Einstein).

These two quotes, however apocryphal, sum up the Trump administration’s strategy for returning the United States to a militantly protectionist policy. This strategy rests on a central doctrine: because raising tariff rates to a level that would please Trump cannot be done—not quickly, at least—using authorities delegated by Congress to the Presidency, the words of statutes must be stretched, twisted, and redefined to provide a legal pretense of delegated authority. The judiciary, tasked by the Constitution with ferreting out and putting an end to exactly this kind of word play, has not indulged the administration. The President saw his first protectionist broadside—his “Liberation Day” tariffs, imposed under the International Emergency Economic Powers Act (IEEPA)—defeated at the Supreme Court in February. His second major attempt, which relied on Section 122 of the Trade Act of 1974, was held to be illegal earlier this month by the U.S. Court of International Trade (CIT). The President can expect little better on appeal.

Section 122 authorizes the President to impose tariffs to remedy “large and serious United States balance-of-payments deficits.” As the Taxpayers Protection Alliance has written previously, “the United States at present has no such deficit, rendering Trump’s newest imposition illegal, facially and flagrantly.” The CIT agreed, writing: “Nowhere does [President Trump’s proclamation] identify balance-of-payments deficits within the meaning of Section 122 as it was enacted in 1974.” The court agreed: “[T]he Proclamation’s use of trade and current account deficits to stand in the place of balance-of-payment deficits within the meaning of the statute renders the Proclamation ultra vires…” Protectionists may be disappointed, but they ought not to be surprised.

The tariffing powers Congress surrendered to the executive branch in such provisions as Section 232 of the Trade Expansion Act of 1962 and Section 301 of the Trade Act of 1974 were not given unconditionally; these statutes attach many restrictions and procedures to which bureaucrats must adhere. To the Trump administration, IEEPA offered the tantalizing prospect of avoiding the bulk of these difficulties, which both limit its discretion and delay its imposition of new duties far more than any provision in IEEPA. With those tariffs struck down, the White House has begun investigations under Section 301, hoping to achieve the same ends by other means. But, as the Cato Institute’s Scott Lincicome and Chad Smitson note, these investigations rest on dubious theories. “The [Office of the U.S. Trade Representative’s] claims in the Initiation Notice raised a host of legal, economic, and practical concerns,” they argue.

The entirety of the Trump administration’s effort to remake American trade policy unilaterally—even the relatively cumbersome investigations of Section 301—are, at root, an attempt to avoid the still more difficult work of changing the U.S. tariff schedule properly: through statutory reform. The Constitution tasks the legislature with setting trade policy, among its other prerogatives. It is not easy to navigate a bill through the long and hazardous ocean voyage to the final port of enactment, but republicanism sees that deliberation, argument, and negotiation are surer methods to achieve good policy than outsourcing decision making to a single man. Trump may well be frustrated by the slowness and inefficiency of lawmaking (so too was Woodrow Wilson, incidentally). But this pace is the pace of self-government—government of the people, by the people, and for the people, mediated by their elected representatives in the legislature.

Speaking of the American people, Trump’s tariffs remain unpopular. Dan McLaughlin of National Review has compiled an array of polls demonstrating this fact. As might be expected, higher tariff rates have caused Americans to pay higher prices for imported goods, depressing business investment and worsening the lingering effects of Joe Biden’s inflation. And as McLaughlin notes, Trump gained a second term largely because Americans longed for competent economic governance and better economic conditions. “Among the 68 percent of voters who thought the national economy was not doing well, Trump won by six points (52 percent to 46 percent) among the 35 percent who said it was in ‘not so good’ shape, and by 78 points among the 33 percent who said it was in poor shape,” he writes, adding that “fully 75 percent of the voters said that inflation had hurt them in 2024, and Trump carried that supermajority group 60 percent to 40 percent.”

The President cannot in any real sense represent “the people,” which is an exceedingly large conglomeration of innumerable opinions, interests, and sensibilities. Congress, on the other hand, which is made up of legislators who answer to constituents localized in states and congressional districts, is far more genuinely representative. As Trump endeavors to circumvent the legislature, it must be asked whether, notwithstanding the silence of congressional Republicans, a majority could be summoned to vote in favor of protectionism. No one has attempted it, but the American people’s distaste for tariffs would almost certainly prevent their representatives from enacting a sweeping new imposition of duty. Every new attempt by President Trump to replace Congress as the primary source of legislation shifts the American constitutional system further from its origin.