Steve Charnovitz
May 31, 2019
Yesterday on May 30, President Trump threatened to impose escalating tariffs on Mexico unless the Mexican government takes action to stem the tide of individuals lacking US entry visas from seeking to cross over the Mexican side of the US-Mexican border. Whether Mexico has an obligation under international law to ensure that activities within its borders do not cause (objective) damage to the United States is a matter on which I reserve judgment. Herein, I do offer the judgment that under US law, in particular 50 USC § 1701 et seq., the Congress has delegated authority to the President to regulate imports into the United States whenever the President has declared a national emergency regarding a threat to the national security, foreign policy, or the economy of the United States, as determined by the President.
The provision of US law (50 USC § 1702) granting emergency authorities does not clearly indicate that tariffs can be imposed. Indeed, a purely textual analysis would suggest that the instrument of regulation is available, but tariffs are not. Nevertheless, the jurisprudence of the US Court of Appeals for the Federal Circuit suggests that the power to regulate in emergency authority includes the power to impose tariffs (see US v. Yoshida International, 526 F.2d 560 (CCPA 1975).
In my view, Congress should not be delegating so much unconstrained authority to the President to declare national emergencies without sufficient cause and to employ tariffs as a cudgel against other countries. Weaponized tariffs are problematic for three reasons: First, the US economy gets hurt at least as much as the target country. Second, such tariffs are usually just a convenient way to disguise protectionism or state mercantilism. Third, a tariff on Mexico would violate US treaty obligations.
I get that the Trump Administration's goal is to tear down the international economic order and legal system. What I don't get is why Congress is so willing to stand aside and allow the Trump Administration to tear it down. The Congress should be taking action to curtail the excessively broad powers to the President in the International Emergency Economic Powers Act (IEPPA) and to explain to the public why IEPPA needs to be reformed or repealed.
When IEPPA was enacted in 1977, the Congress reserved for itself an authority (50 USC §1706(b)) to terminate a President’s emergency actions by concurrent resolution. A concurrent resolution is a resolution of both the House and Senate that cannot be vetoed by the President. Such a Congressional disapproval procedure was viewed by the Congress a way to retain control over the President’s extraordinary emergency authorities and to maintain a proper balance of powers. Unfortunately, in 1983, the Supreme Court invalidated the important instrument of Congressional disapprovals (see INS v Chadha, 462 U.S. 919). A quarter of a century later, many useful government programs that were built on ex post Congressional disapprovals have either been terminated or like IEPPA are vulnerable to Presidential abuse. In some cases, the Congress has replaced the concurrent resolution with a joint resolution, but a joint resolution is vetoable by the President and so could only exert control in situations where two-thirds of both Houses are willing to repudiate the President.
