STEVE INSKEEP, HOST:
Last night, President Trump asserted the power to impose another tariff. He said he wants 100% tariffs on movies produced outside the United States. The president didn't say how this would work, and he announced it as he has other tariffs. There was no vote by Congress, no deliberation, nor even a regulatory process, just one person's social media post. Some of the people affected by the president's constantly changing tariffs assert that he has far exceeded any legal authority. Ilya Somin is a lawyer who has teamed up with the Liberty Justice Center to challenge the tariffs in court.
ILYA SOMIN: We represent five U.S. businesses that have been massively harmed by Trump's "Liberation Day" tariffs because they depend on a variety of imported goods, and the tariffs potentially pose an existential threat.
INSKEEP: His clients include a winemaker and a clothing company. The president has used a particular set of laws to change tariff rates repeatedly so far this year. He says there's an emergency, and therefore, he has power to raise and lower tariffs all by himself. What is wrong with that argument, beginning with the idea that there's an emergency?
SOMIN: There's many different things wrong with it. He's trying to use the International Emergency Economic Powers Act of 1977. We can start off with the fact that that act doesn't even mention tariffs as one of the powers that the president is authorized to use under it.
INSKEEP: Does not have the word tariff at all?
SOMIN: That's right.
INSKEEP: Doesn't say raise taxes, impose taxes, import duties? Is there any synonym or similar word?
SOMIN: None of that. It does say that it enables him to regulate international transactions. But in law, the word regulate is usually distinct from the word tax or tariff or the like.
INSKEEP: OK, so you said that's one problem. What else is wrong with the president's construction here?
SOMIN: We have a whole bunch of other problems. As you mentioned, this law can only be used during an emergency. An emergency is a sudden, unexpected crisis. The rationale for using it this time is the existence of bilateral trade deficits. They are not sudden or unexpected or a crisis. They've existed for decades with many countries, and so they're definitely not an emergency, and they're not even a problem at all because merely the fact that we buy more from some country than they buy from us, that's not a problem anymore than the fact that I have a trade deficit with my local supermarket is necessarily a problem. I buy things from them all the time. They virtually never buy anything from me, but that doesn't mean the situation is an emergency.
INSKEEP: Would you be open to the argument that trade deficits may have existed for a long time, but they finally built up to the point where someone may consider them intolerable, and therefore, that is an emergency?
SOMIN: There is no evidence of that. And if you want to use that kind of argument, that merely the fact that someone might consider them intolerable makes a situation an emergency, then pretty much anything can be an emergency.
INSKEEP: So your fundamental points are there's no emergency by definition, and tariffs weren't a tool that this law allowed for in an emergency anyway. What else you got?
SOMIN: There's the point that there's no extraordinary and unusual threat, which the law requires. In addition, we have the - what's known as the major questions doctrine. The Supreme Court has said in a whole series of cases in recent years that when the executive branch claims the power to decide some major economic or social issue, they must show that Congress clearly delegated that authority to them. An ambiguous phrase in a law is not enough. There must be a clear statement, and there's nothing even remotely resembling a clear statement like that here. And if starting the biggest trade war since the Great Depression is not a major question, then I do not know what is.
INSKEEP: I want to underline an irony here. Are you saying that this tool the Supreme Court has developed over the last several years that restrained Democratic presidents might now restrain a Republican president?
SOMIN: The logic is the same, and indeed, even more compelling because this is even more of a major question, and it's even more obvious that there's no clear statement of delegation here.
INSKEEP: I want to ask you about one other aspect of this. It might feel a little abstract, but as I understand the history, there are a lot of laws that give the president a lot of latitude when it comes to international affairs, especially, and national security, especially. The idea being that we wouldn't really want a president to do terrible things, but we want to leave a president with as much freedom as possible, given that you never know what emergency there might arise in the world. Are you concerned at all about winning a case like this, fencing in a president who might then need that authority some later time?
SOMIN: No. There's much greater risk in having a president who is able to impose tariffs and violate basic econ 101 and cause massive harm anytime he wants than in limiting a tool that basic econ 101 suggests overwhelmingly does more harm than good. You know, Congress can potentially pass new laws, giving the president more precisely worded delegations if they wanted to. If there really is a need, then they can do that.
INSKEEP: Ilya Somin at George Mason University, thanks so much for your insights.
SOMIN: Thank you so much.
INSKEEP: Now, we asked the U.S. Trade Representative's office to explain how they think the tariffs are lawful. We didn't hear back, but they remain welcome. One thing NPR does is keep covering stories over time, and we will return to this one. Transcript provided by NPR, Copyright NPR.
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