On this week’s episode of The World Unpacked, host Jon Bateman discussed the Supreme Court case challenging President Donald Trump’s tariffs with Peter Harrell, a nonresident scholar with Carnegie’s American Statecraft Program and one of the lawyers fighting the tariffs on behalf of some members of Congress.
A portion of their conversation, which has been edited and condensed for clarity, is below.
Jon Bateman: [Let’s] start with the question of why and how the legal authority that Trump used for these tariffs is unprecedented. We know that the U.S. has had tariffs before, and in the first Trump administration, the president imposed tariffs, but this time he did it in a different way, and that’s why he’s in the Supreme Court now.
Peter Harrell: The Constitution gives Congress in Article I the power to levy tariffs and duties and to “regulate commerce.” So these things like imposing tariffs very clearly [are] Congress’s authority. So then the question becomes, for the president: Did Congress delegate to the president?
Starting in the 1930s, Congress has over the years given presidents various legal ways to raise tariffs. But those lawful delegations would not let Trump impose tariffs sort of overnight on the entire world the way he has wanted to. So what he did back in April with Liberation Day, he used this 1977 emergency powers statute called IEEPA, which Congress had passed mostly to let presidents impose sanctions—like Carter imposing sanctions on Iran in 1979 and Obama imposing sanctions on Russia when it took over Crimea in 2014. Trump used the statute, which had been used many times for sanctions, to impose all these tariffs. It had never been used for tariffs before.
Jon Bateman: IEEPA— it sounds like a cartoon character catchphrase or something. This is the International Economic Emergency Powers Act. It’s part of a post-Watergate package of reforms that was attempting to restrain and create some set of procedures around the declaration of international economic emergencies, which prior to that had been a bit more of a Wild West situation.
Here’s how I’m telling the story to myself: Trump styles himself as “tariff man,” and tariffs have been central to both of his terms so far. In the first term, he also had an unprecedented uncorking of moribund statutory powers to employ tariffs under Section 301, which a lot of people thought of as maybe, at that time, the most flexible and powerful way to impose tariffs. And he used that to start his tariff war with China.
Flash forward to [Trump’s second term]. And even Section 301, which Trump was really the innovator on and using it to create new presidential tariff authorities, he’s now finding that that was insufficient, and now he needs to push the legal envelope so far using IEEPA. He’s lost in federal courts, I think, four times now, because it’s a bit of a stretch. This is really new terrain here.
Peter Harrell: It is new terrain, and as you say, he has these other authorities he could use. I think he doesn’t like these other authorities not because they aren’t flexible, but they all require lengthy fact-finding investigations that typically take months. Many of them, like Section 301, also require notice and comment of the tariff rates—you can’t just decide on Tuesday that the tariffs are getting imposed on Thursday.
Jon Bateman: So he found this other way through IEEPA, and now this has been bubbling up through the courts. The administration keeps losing because it is such an unprecedented use of this power. But now we’re at the Supreme Court, and just because he’s been losing at the lower courts does not tell us that he’s going to be losing at the Supreme Court. . . . How do you think members of the court will deal with this kind of massive dilemma?
Peter Harrell: I think that the legal arguments in this case are fairly straightforward. It’s clear looking at the legislative history of IEEPA that it was not intended as a tariff statute. Words like “tariff” aren’t in it.
Institutionally, I think what the court could do is note to the president that if they deny him this tariff authority under IEEPA, it’s not that he has no tariff authority, it’s just that he has to undertake the laborious and hard work required by the statutes that Congress has given him over the years. I think you see the Trump administration grappling with that when you see Howard Lutnick and [Scott] Bessent say, “We have these fallback options if we lose at the Supreme Court.” So even if the court rules against the president, it would do so in a way that wouldn’t mean no tariffs—it would mean a lot more work for the administration.
Jon Bateman: If you were a trade negotiator or a prime minister in a foreign capital, and you see this massive legal uncertainty and the [Department of Justice] actually losing cases in which federal judges are saying that these tariffs are going against the law, you might think, “Well, OK, we no longer need to negotiate. Sit back and wait for the courts to do their work.”
But that’s not my sense of what’s happening. My sense is all the deals are going forward, and the negotiations are still happening, despite this tremendous uncertainty. Is that right? And is that because there’s an awareness that although Trump tried to hit the easy button with IEEPA, he does have other options available, and he’s so fixated on these tariffs that he’s not going to give up so easily?
Peter Harrell: That is exactly what has come up when I have had friendly discussions with foreign officials looking at this issue. They almost uniformly take the position of: Yes, Trump may lose these IEEPA tariffs, but he could reimpose some decent share of these tariffs under other authorities. It might take him a few months, it might be harder for him, it might not be all of them, but he can reimpose many of them under these other authorities. So we are better off simply negotiating and sticking to the deals that we have struck.
Jon Bateman: It would not surprise me if the Supreme Court upheld these tariffs. They’ve been remarkably solicitous toward the president during his second term. It’s very, very historically unusual for the court to strike down anything that is the kind of essence of a presidential mandate—a kind of signature achievement that someone campaigned on. I’m thinking about Obamacare, where Chief Justice [John] Roberts famously switched his vote in secret and came up with a clever, legal bank shot in order to save Obamacare, despite probably every bone in his body being hostile to it.
But the other factor here is the court’s love of presidential power and the gradual presidentialization of foreign relations. You mentioned that this is hardly the first emergency declared under IEEPA. There are forty-eight national emergencies, the last time I checked. It’s become a growing tool that presidents have used to impose sanctions and do all other manner of things. What’s your sense of how the tariffs fit into this accretion of power in the Oval Office over many of the traditional tools of foreign policy?
Peter Harrell: We have seen growing presidential power in the area of foreign affairs for a number of years, with, frankly, relatively little pushback. I look at Trump’s first-term tariffs on China and on steel and aluminum, and there was a little bit of congressional angst and hand-wringing over it, but they didn’t actually do anything about it.
Similarly, this time around, 190 and some members of Congress are signing amicus briefs against the tariffs, and although a handful of Republicans—such as Senator [Rand] Paul and Congressman [Thomas] Massey—have been publicly critical of the tariffs, we’ve not seen Congress pass bills trying to take this authority away from the president.
I think Congress has also been complicit in this kind of presidentialization of power we’re seeing in the United States. And for Americans who do not like—or who have concerns about—this growing use of presidential power, ultimately they’re going to need Congress to stand up for its institutional role if they don’t want to see this ever-growing presidentialization our system.
Jon Bateman: One way I’ve heard this described by scholars is our system in the United States has moved from balance of powers to balance of parties. It’s no longer the case that there is a robust institutional prerogative in Congress, where members, regardless of their party or who’s in the Oval Office, will stand up for their institution. Rather, you’re a member of a party team. So if a Republican is in the Oval Office and you support them, you’re quiet about violations of [for example] the War Powers Act.
What does this look like in a comparative lens? When we hear the phrase “rule by decree” or “state of emergency” in a place like El Salvador, for example, immediately our hackles go up. We think, OK, emerging autocrat. Yet we have in the United States, forty-eight national emergencies in operation—the oldest one, I think, is 1979 against Iran. So basically the emergency is just the existence of the Islamic Republic as an adversary for the United States. Are we moving toward a system where one man or woman essentially has controls over some the most sweeping economic and foreign policy powers of any country on earth?
Peter Harrell: I do worry we are moving that way. It’s a consolidation of power in the presidency.
Maybe from a global geopolitical perspective in a country like El Salvador, it doesn’t matter if there’s consolidation. It matters a lot to the people in El Salvador, but El Salvador doesn’t have a lot of global throw weight, right? The U.S. has a ton of global throw weight. So this consolidation of power impacts not only Americans, but—as we see with Trump’s tariffs—the global order as a whole.
I think we have seen the judicial branch this year step up at limited times. We’ve seen them push back a little bit over certain aspects of the immigration policy. We have seen them push back over certain narrow aspects of domestic use of the military. But, big picture, the court may push back in discrete areas of domestic law against the presidency, but we are not going to have an effective separation of powers if one of our branches of government prioritizes party over its own institutional responsibility. You’re not going to solve this growing accretion of presidential power until Congress begins to think of itself as a separate constitutional entity again.
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