The Tariff Roller Coaster Continues As Courts Block, Reinstate, And Block Trump’s Illegal Tariffs

Remember “Liberation Day”? The day when Trump launched those apparently freedom-loving taxes on all Americans by declaring war on global commerce so hard that we were even planning on taxing penguins on uninhabited islands? Well, some of you might recall that the Constitution distributes power, and doesn’t give it all to the President. And Trump’s tariffs are supposedly based on “emergency” powers. The president can impose certain regulations on foreign countries during emergencies, Congress said — you know, like if Canada nukes us or something. Trump looked at this law and thought: “Perfect! Americans buying stuff from other countries is clearly an emergency.”

His theory (to the extent it can be called a “theory”) goes something like this: trade deficits are an “unusual and extraordinary threat” to America, so the president can declare a perpetual national emergency about… international commerce existing. Every purchase of a Toyota is basically another Pearl Harbor.

Anyway, two courts looked at this theory this week and had some thoughts.

First up: the US Court of International Trade, which is exactly what it sounds like — the court that deals with trade stuff. They took one look at Trump’s tariffs and said, essentially, “The Constitution gives Congress the power to impose tariffs, not the president. This isn’t complicated.”

Now, Congress did pass a law saying the president can “regulate a variety of economic transactions” during emergencies. But here’s the thing: The court noted that declaring every trading relationship with every country to be an emergency is… not really how emergencies work.

The court’s reasoning was pretty straightforward:

IEEPA does not authorize any of the Worldwide, Retaliatory, or Trafficking Tariff Orders. The Worldwide and Retaliatory Tariff Orders exceed any authority granted to the President by IEEPA to regulate importation by means of tariffs. The Trafficking Tariffs fail because they do not deal with the threats set forth in those orders.

Translation: You can’t just declare everything an emergency and use emergency powers forever.

But wait! There’s more. Yesterday, a regular federal court in DC also blocked the tariffs. Judge Rudolph Contreras was equally unimpressed with Trump’s legal theory:

This case is not about tariffs qua tariffs. It is about whether IEEPA enables the President to unilaterally impose, revoke, pause, reinstate, and adjust tariffs to reorder the global economy. The Court agrees with Plaintiffs that it does not

The judge made some pretty devastating points about why Trump’s theory falls apart. First, there’s the basic constitutional problem:

The Court agrees with Plaintiffs that the power to regulate is not the power to tax… The Constitution recognizes and perpetuates this distinction. Clause 1 of Article I, Section 8 provides Congress with the “Power To lay and collect Taxes, Duties, Imposts and Excises.” Clause 3 of Article I, Section 8 empowers Congress “To regulate Commerce with foreign Nations.”

In other words, the Constitution specifically separates the power to tax from the power to regulate trade and gives both to Congress. If Trump could just call tariffs “regulation,” then that whole separation becomes meaningless.

Congress has also been careful when delegating tariff authority to presidents. Every other law giving the president tariff powers comes with “express procedural, substantive, and temporal limits.” But Trump’s reading of the emergency law would “eviscerate” all those careful limits:

Those comprehensive statutory limitations would be eviscerated if the President could invoke a virtually unrestricted tariffing power under IEEPA…. The Court will not assume that, in enacting IEEPA, Congress repealed by implication every extant limitation on the President’s tariffing authority….

Even worse, if the court were willing to accept Trump’s interpretation of the IEEPA, then that would make the IEEPA unconstitutional. Oops!

Defendants’ interpretation could render IEEPA unconstitutional. IEEPA provides that the President may “regulate . . . importation or exportation.” … The Constitution prohibits export taxes. See U.S. Const. art. I, § 9, cl. 5 (“No Tax or Duty shall be laid on Articles exported from any State.”). If the term “regulate” were construed to encompass the power to impose tariffs, it would necessarily empower the President to tariff exports, too. The Court cannot interpret a statute as unconstitutional when any other reasonable construction is available.

Finally, the court notes that in the fifty years since this emergency law was passed, literally no president has ever used it to impose tariffs. That’s… probably relevant.

And, of course, the markets loved this news. Global stock futures jumped when the courts blocked the tariffs, which tells you everything you need to know about how seriously financial markets take Trump’s trade policies.

The White House press secretary, Karoline Leavitt, responded by claiming that courts have no authority to review presidential tariffs at all, which is… an interesting constitutional theory. If you squint, it almost sounds like she’s arguing that federal judges have absolutely no role overseeing executive uses of power, which might come as news to the Supreme Court. Or anyone who is familiar with how the three branches of government work.

Leavitt spews this constitutional nonsense with such conviction that you’d almost think she believes it. But despite her protests about “unelected… activist judges” (some of whom were appointed by Trump himself), it remains a simple fact: Donald Trump is no king, and multiple courts keep ruling to that effect.

Meanwhile, late Thursday, Trump himself blew up at the CIT judges and used it to take a surprising swipe at the Federalist Society and Leonard Leo:

If you can’t see that screenshot, here is the jumbo-sized word salad for you:

The U.S. Court of International Trade incredibly ruled against the United States of America on desperately needed Tariffs but, fortunately, the full 11 Judge Panel on the U.S. Court of Appeals for the Federal Circuit Court has just stayed the order by the Manhattan-based Court of International Trade. Where do these initial three Judges come from? How is it possible for them to have potentially done such damage to the United States of America? Is it purely a hatred of “TRUMP?” What other reason could it be?

I was new to Washington, and it was suggested that I use The Federalist Society as a recommending source on Judges. I did so, openly and freely, but then realized that they were under the thumb of a real “sleazebag” named Leonard Leo, a bad person who, in his own way, probably hates America, and obviously has his own separate ambitions. He openly brags how he controls Judges, and even Justices of the United States Supreme Court — I hope that is not so, and don’t believe it is! In any event, Leo left The Federalist Society to do his own “thing.” I am so disappointed in The Federalist Society because of the bad advice they gave me on numerous Judicial Nominations. This is something that cannot be forgotten!

With all of that being said, I am very proud of many of our picks, but very disappointed in others. They always must do what’s right for the Country! In this case, it is only because of my successful use of Tariffs that many Trillions of Dollars have already begun pouring into the U.S.A. from other Countries, money that, without these Tariffs, we would not be able to get. It is the difference between having a rich, prosperous, and successful United States of America, and quite the opposite.

The ruling by the U.S. Court of International Trade is so wrong, and so political! Hopefully, the Supreme Court will reverse this horrible, Country threatening decision, QUICKLY and DECISIVELY. Backroom “hustlers” must not be allowed to destroy our Nation!

The horrific decision stated that I would have to get the approval of Congress for these Tariffs. In other words, hundreds of politicians would sit around D.C. for weeks, and even months, trying to come to a conclusion as to what to charge other Countries that are treating us unfairly. If allowed to stand, this would completely destroy Presidential Power — The Presidency would never be the same!

This decision is being hailed all over the World by every Country, other than the United States of America. Radical Left Judges, together with some very bad people, are destroying America. Under this decision, Trillions of Dollars would be lost by our Country, money that will, MAKE AMERICA GREAT AGAIN. It would be the harshest financial ruling ever leveled on us as a Sovereign Nation. The President of the United States must be allowed to protect America against those that are doing it Economic and Financial harm. Thank you for your attention to this matter!

Since I don’t hate you quite as much as Trump does, I broke up his nonsensical spew into paragraphs to make it marginally more readable.

But there are a few notable points in here: first, Trump believes that any judge that rules against him is somehow bad and hates America. And if they were appointed by him, he’ll now blame Leonard Leo and the Federalist Society. That’s pretty incredible, since the rise of Trump was very, very much enabled by Leo and the Federalist Society, and their efforts to pack the courts with partisan ideological lackeys who would push Christian nationalism and GOP politics forward.

It’s no surprise but is yet another data point confirming Trump’s view that anyone telling him he broke the law must be anti-American. It’s a dangerous authoritarian stance, but not a new one.

Second, Trump, who positions himself as the world’s greatest dealmaker, effectively admits that he can’t get a Republican Congress to actually approve these tariffs.

Third, Trump is the fucking President. Pretending he’s some poor little victim of the Federalist Society ramming through judges he doesn’t like is so stupid. Trump is basically admitting he was played like a fiddle by Leo, which just demonstrates how weak and unqualified he is as President.

Unfortunately, as Trump noted, the Court of Appeals for the Federal Circuit already put the first ruling on hold while they figure out how to handle it and related cases. But, honestly? The legal reasoning in both rulings is quite solid. Trump’s emergency powers don’t extend to “I don’t like trade deficits” any more than they extend to “I don’t like Mondays.” He may never realize that, but the rest of us must retain that basic reality.

This seems likely to reach the Supreme Court fairly quickly, at which point it’s anyone’s guess how those “unelected activist judges” will rule. But for now, we have two federal courts saying the same thing: the Constitution still applies, even to Trump’s economic theories. It may make Trump sad, but it certainly doesn’t make him right.