Tariffs, Tantrums, and the Constitution

June 12, 2025

By David Hebert

Recent court cases have sparked serious debate in the U.S. about the scope of executive power and the rule of law.  The US Court of International Trade struck down the tariffs President Trump imposed under the International Emergency Economic Powers Act of 1977. I wrote about this for The Daily Economy but in typical fashion, within hours of that piece being published, there was already a new development.  In response to the Administration’s appeal, the US Court of Appeals for the Federal Circuit granting an immediate administrative stay and temporarily reinstated the tariffs.  As if that weren’t enough, a D.C. District Court dealt another blow to Trump’s use of the IEEPA.  The Justice Department responded to this, saying that it would act like a “magnet” and invite thousands of other companies to challenge the tariffs. This would be akin to a five year old saying, “don’t punish me or others might notice I misbehaved.”

Undeterred, the Trump administration is floating alternative strategies to accomplish the same goals of the tariffs, using different emergency powers acts that would allow the President to impose tariffs.  Most astonishingly, Pete Navarro said of the Court’s ruling, “this did not catch us by surprise.” Regardless of one’s stance on tariffs and the Trump agenda, this should be an affront to all citizens.  One of Trump’s closest trade advisors admitted that the Administration knew that it was possible that their tariffs would be declared unconstitutional under the IEEPA and went ahead with them anyway.

This highlights at a serious problem in politics today and one that plagues both the American Left and the American Right.  Elected officials view the Constitution (and indeed, the rule of law) as a set of roadblocks to be surmounted or navigated, not as a compilation of received wisdom from the past to inform principled policymaking.  Nicholas Arnold and I explored this topic in 2023 in our essay, Mr. President, Tear Down This Fence. In it, we harken back to the notion of the Chesterton fence, which captures the idea that the rules and systems we have today are the product of reasoned debate in the past. Ignorance (on our part) of these debates does not invalidate the reason or wisdom for the rules and systems we have today.

By way of analogy, consider the all-too-common act of driving down the road, only to find that a particular road is closed due to construction.  Rather than turn around, drivers simply take a detour and use a different route to get to their destination.  This makes sense in the context of driving, but when it comes to the rule of law, it is disastrous.  Given that no president has ever used IEEPA to enact tariffs and no president has ever levied tariffs on the entire world unilaterally, the President’s use of IEEPA was always going to invite challenge.  The Administration, however, contends that 1) they do have the right to use IEEPA to do so and 2) even if they don’t, they can use other policy tools to accomplish the same goal.

The Constitution, specifically Article 1, Section 8, gives Congress jurisdiction over tariffs.  And while it is true that there exist various emergency powers acts that allow the President to wield tariff policy in certain and limited cases (and that the Supreme Court has ruled that this is permissible), we would still expect reluctance on the part of a President guided by principle to take up powers that clearly belong to Congress under normal circumstances. At the very least, we would expect a president to consult with Congress and ask them to, in effect, give their blessing in the form of a direct Act of Congress.

But this is not what happened.  The Trump Administration asserted that they had the power to act in this way.  The US Court of International Trade responded with a resounding, “no, you do not.”

In the end, regardless of one’s stance on tariffs, all citizens should see the Trump Administration’s behavior in this instance as an affront to the Constitution.  The fact that they were not surprised by this and were already working on alternative means of accomplishing the same goals, implicitly still without Congress’s assent, is deeply troubling. Congress needs to reassert its power of the purse and zealously guard its powers and authorities and make sure that they are wielded by no one without their explicit authorization.  The Constitution is not just a series of roadblocks designed to stymie potentially overzealous officials.  It is the product of reasoned and serious deliberation, where many ideas were floated, discussed, and rejected before arriving at the form we have. We need to understand this if we are to safeguard our Republic from overreaches.

Dave Hebert is a Senior Research Fellow at the American Institute for Economic Research. Follow him on X: @Dave_Hebert and online at www.davidjhebert.com