By Jim Geraghty
Thursday, May 29, 2025
Go figure, it turns out the president of the United
States cannot rewrite U.S. trade policies and enact sweeping new tariffs on a
whim.
I can hear someone out there objecting to the
characterization of Trump’s trade policies being set by whims or what mood he’s
in. But as this newsletter noted earlier, the tariff rate on goods from
China has changed six times in less than 115 days. Trump’s presidency has
featured at least eight major tariff announcements, and at least 55 tariff
changes in those 115 days, but it’s hard to get a precise number, because many
tariff announcements were made, then paused, reversed, or modified within days
or weeks. The tariff tracker page over at Reed Smith gets longer and
longer.
This past week brought a vivid example of Trump’s erratic
thinking and rapid changes in policy. On Friday, May 23, President Trump announced
he was “recommending a straight 50 percent tariff on the European Union,
starting on June 1,” and added during an appearance in the Oval Office, “I’m not
looking for a deal. I mean, we’ve set the deal, it’s at 50 percent.”
Then on Sunday evening, Trump announced on Truth Social, “I received a call today from
Ursula von der Leyen, President of the European Commission, requesting an
extension on the June 1st deadline on the 50 percent Tariff with respect to
Trade and the European Union. I agreed to the extension — July 9, 2025 — It was
my privilege to do so.”
Within two days, a 50 percent tariff on EU goods
appeared and disappeared, at least temporarily. Even
Matt Gaetz hung around longer.
Our Charlie Cooke has been trying to get anyone to listen
that this is not how the U.S. government is supposed to work under our
Constitution; you may remember this little spat we had with the British in the
1700s about whether the United States should have a monarch who unilaterally
sets policy. Charlie, back on March 4:
A reminder: Congress can stop this
right now. Literally right now. Today. This morning. Before lunch. In a matter
of hours. The Constitution gives absolute control over tariffs to Congress. As
such, any power that the president enjoys must be delegated. With one bill —
passed by veto-proof majorities — Congress could take back some (or all) of
that power.
The law that President Trump is
using to cause such havoc is known as IEEPA. It’s supposed to be for
emergencies, but, given that it gives the president free rein to determine when
an emergency is in force, it’s effectively a non-justiciable enabling act.
Congress can repeal it, amend it, or pass a separate law that supersedes it,
and there’s nothing that anybody can do to stop it. Such a law could exempt
Canada and Mexico from its provisions, or make clear that other tariff deals
involving those countries (like the one Trump signed in 2019) have precedence,
or do anything else that Congress wants it to do, because — again! — Congress
has plenary power over tariffs. Heck, if Congress passed a law that simply
read, “All delegation of the legislature’s Article I, Section 8 tariff powers
is hereby rescinded,” that would immediately be the law of the land.
I understand that Congress does not
want to do this because, despite their protestations when their guy is out of
power, both parties like the imperial presidency. But that approach is dumb,
shortsighted, and, in this case, obviously illegal under a plain reading of the
Constitution. . . .
Written law yields both stability
and comprehension. Written law that, once established, can only be changed by
the acquiescence of lots and lots of people aids those ends yet further. The
last thing you want when dealing with regulation, tax rates, tariffs, or
anything else of that sort is to wake up one morning and discover that all the
rules have been changed on a whim. Because their power is vested in one person,
presidents can do that. Because its power is vested in 535 people, Congress
cannot.
There are a whole bunch of shortsighted Americans who
want the president to have pretty much unlimited power — as long as the guy in
the Oval Office is a guy they agree with, that is — and who never bothers to
think what this country would be like if a guy they didn’t agree with had that
same unlimited power they envision. If you hate the existing system of checks
and balances in our Constitution, you might be an American in your citizenship,
but you’re not really much of an American in your thinking.
Unsurprisingly, the U.S.
Court of International Trade concurs with Charlie. As our James Lynch reports:
The Court of International Trade
struck down Trump’s wide-ranging “liberation day” tariffs enacted last month
and other tariffs he placed earlier in his term, a blow to one of the central
pillars of Trump’s policy agenda as he attempts to use tariffs as leverage in
various negotiations.
“The question in the two cases
before the court is whether the International Emergency Economic Powers Act of
1977 (‘IEEPA’) delegates these powers to the President in the form of authority
to impose unlimited tariffs on goods from nearly every country in the world.
The court does not read IEEPA to confer such unbounded authority and sets aside
the challenged tariffs imposed thereunder,” the court said.
“The court holds for the foregoing
reasons that 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,” the New York–based court added.
“The challenged Tariff Orders will
be vacated and their operation permanently enjoined.”
The case was filed by the Liberty Justice Center
and George Mason University professor Ilya Somin on behalf of five U.S.
businesses harmed by the tariffs. The decision was unanimous; as Somin noted, “It is worth noting that the panel include
judges appointed by both Republican and Democratic presidents, including one
(Judge Reif) appointed by Trump, one appointed by Reagan (Judge Restani), and
one by Obama (Judge Katzmann).”
Somin wrote, “From the very beginning, I have contended that the virtually
limitless nature of the authority claimed by Trump is a key reason why courts
must strike down the tariffs. . . . I am glad to see the CIT judges agreed with
our argument on this point!”
On X, Trump
adviser Stephen Miller fumed, “The judicial coup is out of control.” But
this sort of situation is exactly why the U.S. has a Court of International
Trade, established under Article III of the Constitution. The court has
nationwide jurisdiction over civil actions arising out of the customs and
international trade laws of the United States. The court’s stated mission is to
provide “independent, consistent, fair, and impartial interpretation and
application of the customs and international trade laws.”
There’s nothing coup-ish about it. The court is just
doing its job under our Constitution. If the Trump administration wants these
tariffs enacted, they need to get Congress to sign off on the idea.
And if Judge Timothy Reif is such a dastardly
revolutionary, hell-bent on preventing America from becoming great again . . . why did Trump appoint him to the U.S. Court of International
Trade?
Our Andrew Stuttaford notes that while this is welcome news, it
does not end the uncertainty hanging over U.S. businesses and international
supply chains:
Importers (who are — it’s too often
forgotten — frequently also exporters) affected by the decision will naturally
be pleased, but they also know that, if the administration does not back down
(and there is no sign that it will), they can look forward to a period of
uncertainty until the issue is resolved. The response to that uncertainty will
be, I would imagine, to pull in their horns. To take one out of many possible
examples, do companies go ahead with plans to rearrange their supply chains to
deal with higher tariffs, or do they put them on ice, or do they go ahead with
them, at least to a degree, because even if the new tariffs are permanently
quashed, tariff risk clearly remains?
Get Ready to Hear a Lot More About TACOs
On May 2, Financial Times columnist Robert Asher mentioned an
acronym that is likely to stick to the administration: “The recent rally has a
lot to do with markets realizing that the U.S. administration does not have a
very high tolerance for market and economic pressure, and will be quick to back
off when tariffs cause pain. This is the Taco theory: Trump Always Chickens
Out.”
That doesn’t seem like just a tariff issue. Remember how Hamas was supposed to be paying hell for not releasing all of
the hostages? (In his comments, Trump did not specify only the American
ones.) The administration is still negotiating with Hamas. Remember how Trump was “very angry” with Putin a few months ago? Still no sign
of any additional sanctions on Russia or arms sales to Ukraine. You can also
fairly wonder if despite an extensive and expensive effort at hammering the
Houthis, Trump accepted, as the Editors put it, “a pinky promise to avoid attacking
shipping in the future.” We keep getting told that some grand new deal with the mullahs in Iran
is just around the corner, but the hard lesson of the past few decades is
that you just can’t trust that regime.
Chicken out? I’ve never heard that.
You mean because I reduced China from 145 percent that I set down to 100 and
then down to another number? And I said you have to open up your whole country
and because I — I gave the European Union a 50 percent tax tariff and they
called up and they said please, let’s meet right now. Please let’s meet right
now. And I said, OK, I’ll give you till June 9 — I actually asked them. I said
what’s the date? Because they weren’t willing to meet. And after I did what I
did, they said we’ll meet anytime you want, and we have an end date of July
9th. You call that chickening out? Because we have $14 trillion now invested,
committed to investing when Biden didn’t have practically anything. Biden —
this country was dying. You know, we have the hottest country anywhere in the
world. I went to Saudi Arabia, the king told me, he said you got the hottest
com — we have the hottest country in the world right now. Six months ago this
country was stone cold dead. We had a dead country. We had a country, people
didn’t think it was going to survive, and you ask a nasty question like that.
It’s called negotiation. You set a
number. And if you go down — you know, if I set a number at a ridiculous high
number and I go down a little bit, you know, a little bit, they want me to hold
that number, 145 percent tariff, even I said man that really got up. You know
how it got? Because of fentanyl and many other things and you added it up. I
said where are we now? We’re at 145 percent. I said, whoa, that’s high, that’s
high. They were doing no business whatsoever and they were having a lot of
problems. We were very nice to China. I don’t know if they’re going to be nice
to us, but we were very nice to China. And in many ways I think we really
helped China tremendously because you know they were having great difficulty
because we were basically going cold turkey with China.
We were doing no business because
of the tariff because it was so high. But I knew that. But don’t ever say what
you said. That’s a nasty question. Go ahead. That’s the nastiest question.
ADDENDUM: Dan McLaughlin disagrees in part, contending that in the
menagerie of hard-left lunatics and incompetents that constitute the New York
City mayoral primary, former governor Andrew Cuomo is the least harmful option.
“He knows where the bodies are buried because he put half of them there
himself.” (Dan doesn’t disagree with me that Cuomo is a walking moral black
hole who leaves a trail of slime everywhere he goes, and it’s unfair for
anybody to accuse Dan of affirmatively praising or endorsing Cuomo.)
I just cannot believe that after all of the effort that
mostly a small band of conservatives did during the pandemic to tear down the
façade of Cuomo as a brilliant, wise, empathetic leader, and expose how
terrible and terribly consequential his decisions were, here we are, five years
later, and Cuomo is set to waltz right into Gracie Mansion, probably without
breaking a sweat. As I wrote back on August 3, 2021:
The exposure of the real Andrew
Cuomo should be a deeply humbling experience for everyone who gushed about the
New York governor throughout 2020. (If you bought an Andrew Cuomo prayer candle, please go on a
lengthy sabbatical and reflect deeply and at great length upon what bad life
choices brought you to this low point.) The national media though they were
spotlighting the best governor during the pandemic. They spent a year
celebrating the worst.
From the perspective of 2025 . . . did the exposure of
the real Andrew Cuomo matter?
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