Todd Tucker on Tariffs and the Role of Courts

In an op-ed in the FT entitled "Opponents of Trump’s tariffs should be wary of relying on the courts," Todd Tucker argues against U.S. courts striking down Trump's IEEPA tariffs. I have some questions and comments on his views of this issue, focusing on a few specific arguments he makes, as well as this general point: When, if ever, does Todd think it is appropriate for courts to find that executive actions violate the Constitution or a statute?

At the outset, Todd offers some brief history of IEEPA and predecessor statutes and asks whether Trump has been, and will be, treated differently than earlier presidents:

[Trump's] actions rely on the International Emergency Economic Powers Act of 1977, whereby Congress delegates to the president the authority to regulate, prevent or prohibit imports “to deal with any unusual and extraordinary threat”.

This broad power has been used aggressively over the years. Franklin D Roosevelt used a virtually identical predecessor authority to take the US off the gold standard in 1933, paving the way for domestic recovery in the New Deal. Ditto Richard Nixon, who imposed his own 10 per cent baseline tariff in 1971 to leverage countries into more favourable currency arrangements. Since 1977, the act has been used over 80 times to address long-running emergencies. This is part of a broader pattern of presidents gaining power at the expense of an increasingly passive Congress.  

The courts have repeatedly blessed these arrangements — until Trump, that is.

Back in May, a lower court ruled that the IEEPA doesn’t allow Trump’s sweeping tariffs. In oral arguments at the end of July, a federal appeals court seemed inclined to agree.

Observers might reasonably ask whether these newfound limits constitute a special rule for the 47th president. ...

Is it a reasonable question to ask whether there is a special rule for Trump? I think Todd should recognize the possibility that Trump's actions may simply be different from those that came before. In this regard, no president has ever used IEEPA to impose tariffs, and therefore his actions raise novel legal questions and are factually distinct from what was done previously. I realize it was just an op-ed so Todd couldn't go through all the differences between what FDR, Nixon, and Trump did, pursuant to different statutes, but fleshing out those differences is, in fact, what the courts have been and will be doing. Their job is to go into detail explaining Trump's specific tariff actions, and then consider how the IEEPA statute applies to those actions. A reasonable observer should read through the reasoning in the court decisions and see if they find it persuasive, and based on that decide whether there has been a special rule created for Trump.

Does Todd think the Court of International Trade decision was "a special rule for the 47th president"? He doesn't say. Will the the CAFC decision be a special rule for Trump? Will a Supreme Court decision be a special rule for Trump? If the tariffs are struck down, there is no doubt opinions along these lines will be put out there in the political debate. Here's the good news though: Courts are used to this! They have heard all of these things before, and in much more controversial policy areas than tariffs. Ultimately, I think the judges can handle the responsibility they have been given here. It comes with the job. Courts do their best at legal reasoning, and political commentators -- who are not always "reasonable observers" -- complain about judicial bias. It's an endless and sometimes frustrating cycle, but somehow people find a way to muddle through. (So far at least).

It's also worth noting here that if the courts rule against Trump's IEEPA tariffs, it doesn't necessarily mean that no IEEPA tariffs of any sort are ever permitted. It is true that one possible outcome is that the courts say IEEPA does not permit tariffs, but I don't think that is the most likely result. Instead, the ruling could just establish boundaries for when such tariffs can be used, with a finding that the president does not have unlimited authority here and that Trump went too far. I think many people would prefer that to the current situation of uncertainty about what exactly is permitted under IEEPA, although they will disagree about the proper boundaries of course. What we may end up with then is a ruling that says no to the "worldwide tariffs" as they have been applied (the "fentanyl tariffs" are a separate story), with the reasoning establishing guidelines that the Trump administration and future administrations can use going forward. Constitutions and statutes are often vague, and courts can provide clarity. The IEEPA situation as it relates to tariffs seems to fit squarely within that.

Now we get more directly into Todd's broader view of the role of courts:

... Shouldn’t voters and their elected officials, rather than unelected judges, be deciding the best economic policies to pursue?

I would have thought the answer here was a straightforward one: Yes, voters and their elected officials should be deciding the best economic policies to pursue, subject to the constraints of the Constitution and the various statutes that have been enacted. (I'll come back to this point later.)

Todd then adds the following in support of his point:

On that score, Trump can reasonably claim to have a mandate in the results of the 2024 election and congressional reaction.

"Mandate" is the kind of vague political rhetoric that is difficult to apply in an objective way. Trump got 49.8% of the vote in the 2024 presidential election. Does that give him a "mandate"? In what sense? From what I can tell, when politicians use this term, it is mainly as a way to try to push people into doing what they want. It has no meaning other than its occasional ability to win a political argument.

Also, a mandate to do what exactly? Even if there had been a mandate to raise tariffs, which I'm not sure there was, was there a mandate to raise tariffs under IEEPA in the way that it was done? That seems like a stretch.

Overall, with his "mandate" argument, Todd seems to be making the case to sharply limit the power of courts in reviewing executive actions. I wonder how far he would be willing to take this argument when pressed on the boundaries though. For example, how would Todd apply this logic to the ICE detentions? I would say there is a better argument for Trump having a "mandate" on mass deportation than on IEEPA tariffs.

Regardless of what "mandates" may or may not have come out of the 2024 election, I think presidential "mandates" in general should be looked at with a high degree of skepticism, by the courts and by everyone else. Among other things, a lesson I take from the last few years is that misinterpreting a narrow election victory as a "mandate" can lead to a president taking actions that the voters are not happy with and cause that president's popularity to decline.

In addition to the role of courts, Todd seems to be worried about the balance of congressional and executive power, and he prefers a strong executive branch:

These groups argue that Congress must prescribe in advance, in exhaustive detail, what specific threats presidents should address in the future, and how they should address them. But this does not play to Congress’s strengths. Lawmakers ideally set broad objectives, and make sure that highly trained civil servants and those on the front lines of foreign policy and intelligence briefings have the leeway to fit them to specific challenges as these emerge.

Yet libertarian legal doctrines like “non-delegation” and “major questions” are being marshalled not only against Trump’s tariffs, but also against labour, consumer and environmental protections. Such ideas have already helped to roll back the efforts of former president Joe Biden to tackle student debt, Covid-19 and carbon emissions.

Limits on Trump today will bind future presidents tomorrow — Democrats and Republicans alike who will need executive tools to address ruinous competitiveness or climate emergencies.

I will confess I had not given much thought to the congressional-executive balance of power until recently. My reaction to the events of the last few years has led me in the opposite direction of Todd though: I worry a lot about the presidency becoming too powerful, and that we have opened ourselves up to a "cult of the presidency" politics. People expect too much from presidents, and that has put us in a situation where presidents push the boundaries of their power. In practice, what that has meant is policies that swing wildly back and forth as the political parties trade occupancy of the White House. To me, this does not seem ideal, and I don't think it has worked out very well. Obviously, executive branch policies are going to change when a president of a different party is elected. But the more power the president has, the stronger the swings will be. Congress having more power would moderate these changes and make them more reflective of the views of American voters as a whole.

A question I have for Todd related to this is the following: How do you think these political developments have worked out for the policies you care about? For example, Todd mentions climate emergencies. On balance, does it seem as though, at this particular moment in time, a powerful executive branch has been beneficial in that area?

Todd concludes with the following:

Ultimately, the better resolution is for courts to step back, and for citizens, elected officials, civil servants and market participants to stand up for good economic policy and a healthy democracy. Hoping for men and women in robes to deliver salvation is not a strategy.

Again, this is an op-ed, and Todd didn't have the space to flesh out his full views here. But taking this at face value, it seems as though he thinks courts should not be weighing in on a wide range of issues related to whether Congress and the president are complying with the Constitution or statutes. At the least, he seems to want a very high degree of deference by courts towards executive power, with an interpretive approach that errs on the side of letting presidents do what they want. That's certainly a view that is out there and I get the point. I tend to think the Supreme Court goes too far at times too, and I have some thoughts on this that I'd like to flesh out some day.

But when you think about how we can get to "good economic policy" or "a healthy democracy," I wouldn't dismiss the role of courts so quickly and so broadly. ("A healthy democracy" in particular covers a broad category of issues.) Citizens, elected officials, civil servants and market participants obviously have a crucial role, but upending the current system by cutting out the courts from their current role in standing up for both "good economic policy" and "a healthy democracy" would be a radical change with some serious consequences. Some day, perhaps artificial general intelligence will be able to draft constitutions and statutes that account for all possible future applications and avoid disputes about their meaning (that was a joke!). Until then, asking courts to interpret these constitutions and statutes is probably unavoidable and sometimes actually helpful.