U.S. tariffs meet the rule of law

Opinion

In a way, it’s trying to claim that the end justifies the means — no matter how outlandish the means happen to be.

There is a current court case where a U.S. company claimed it shouldn’t have to pay authors for taking their copyrighted works to train AI — because if it had to pay authors for its work, the company would be bankrupted. Therefore, taking the works should be allowed.

It’s a little like saying you shouldn’t pay an apple farmer for apples you’ve stolen and sold, because you’d end up losing money in the process.

Well, enter U.S. President Donald Trump, who is now preparing to fight for his global tariff regime before the U.S. Supreme Court, after losing twice in lower courts. The lower courts determined that Trump couldn’t legally use the International Emergency Economic Powers Act, or IEEPA, to levy tariffs.

The rulings, by the U.S. Court of Appeals and the Court of International Trade, could mean that the U.S. government would have to return tens of billions of dollars to importers who have collected the tariffs.

It puts Trump in a sticky spot: “If you took away tariffs, we could end up being a third-world country,” Trump said Tuesday.

But “we can’t afford to pay back what we took illegally” is not actually an effective legal defence. It may be persuasive in the court of public opinion, but it shouldn’t hold much water with judges who actually uphold laws.

The problem with Trump’s original approach is that IEEPA only allows a U.S. president to take action in the case of a national emergency: tariffing powers rest with the legislative branch of government — Congress. And Trump has been unable to convince either court that his Trumped-up statements proclaiming spontaneous national emergencies breaking out with countries around the world actually represent anything like a global reality.

Next step? Well, the U.S. Supreme Court, helpfully stacked with Republican-selected judges.

But, as we’ve pointed out on these pages before, those judges have a distinct problem ahead of them.

They have long maintained that a literal interpretation of the U.S. constitution is the proper way to address constitutional questions, and that is exactly what the Court of International Trade panel of judges delivered, and what the U.S. Court of Appeal echoed, saying “We are not addressing whether the president’s actions should have been taken as a matter of policy. Nor are we deciding whether IEEPA authorizes any tariffs at all. Rather, the only issue we resolve on appeal is whether the trafficking tariffs and reciprocal tariffs imposed by the challenged executive orders are authorized by IEEPA. We conclude they are not.”

The reasoning includes the fact that the U.S. Congress has only ever given tariff power to the executive branch in clearly spelled-out language limiting the president’s powers: the IEEPA “neither mentions tariffs (or any of its synonyms) nor has procedural safeguards that contain clear limits on the president’s power to impose tariffs.”

The end result? “Congress, in enacting IEEPA, did not give the president wide-ranging authority to impose tariffs.”

So, the ball will shortly be in the U.S. Supreme Court’s hands, and it’s tough to see how they can legitimize ruling that the U.S. constitution — which clearly says where tariff powers rest — is actually wrong.

But even that is not the absolute end of the road — the tariffs may still stand, if Congress actually turns them into laws.

Problem is, many members of Congress may be more than uncomfortable about personally wearing responsibility for the rising costs tariffs create for U.S. customers.

Trump is, however, right about one thing: the failure of the tariffs will be an absolute disaster for his administration.