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   25 Jul 2025 11:21:41 UTC   
      
   Opinion   
   George F. Will   
   This tariff court case could rein in the rampant Trump presidency   
   Trump is a hare, and the federal courts are a tortoise. We know how that   
   fable turned out.   
      
   President Donald Trump in the Oval Office at the White House on Tuesday.   
   (Chip Somodevilla/Getty Images)   
   Donald Trumps destructive Liberation Day tariffs, announced April 2,   
   should result in a constructive judicial ruling that significantly   
   sedates todays hyperactive presidency. Next Thursday, a federal appeals   
   court will hear oral arguments about this: May the president, by making   
   a declaration (that he claims is exempt from judicial review) of a   
   national emergency and an unusual and extraordinary threat, impose   
   tariffs (taxes paid by U. S. consumers) whenever he wants, at whatever   
   level he wants, against whatever country he wants, on whatever products   
   he wants, for as long as he wants?   
   A unanimous lower court has said, essentially: Of course not. Eighteen   
   organizations, spanning the jurisprudential spectrum, have filed amicus   
   briefs opposing the president. They demonstrate the following:   
   After the preamble, the Constitutions first word is all: All legislative   
   Powers are vested in Congress. And the power to tax is listed first   
   among Congresss enumerated powers. Because the Constitution vests in   
   Congress the power to lay and collect duties and imposts, presidential   
   authority to impose them must derive from a statute.   
      
   Trump relies on the International Emergency Economic Powers Act of 1977.   
   But it nowhere includes the term tariff or any of its synonyms, and no   
   previous president has claimed that it authorizes tariffs. Todays   
   president argues that IEEPAs conferred power to regulate trade implies   
   the presidential power to tax it. This is an astonishingly radical claim   
   because hundreds of statutes authorize innumerable agencies to regulate,   
   but not to tax. Congress has often authorized tariffs, but always with   
   specific substantive, temporal and procedural limitations on   
   presidential discretion.   
      
   IEEPAs authority can be exercised only in an emergency involving an   
   unusual and extraordinary threat, which trade deficits  the presidents   
   obsession  are not. Unusual? He says they have been persistent for half   
   a century.   
      
   Recently, the Supreme Court said the Federal Communications Commissions   
   regulation of communications carriers could include an FCC-imposed tax   
   on them but only because Congress explicitly authorized this. Otherwise,   
   the FCC tax would violate two related rules, the major questions   
   doctrine and the nondelegation doctrine.   
      
   The former stipulates that for courts to construe statutes to grant the   
   executive broad powers, Congress must speak clearly about authorizing   
   executive decisions of vast economic and political significance.   
   Congress did no such thing with IEEPA.   
      
   The Supreme Court says the nondelegation doctrine, which undergirds the   
   separation of powers, bars Congress from transferring its legislative   
   power to another branch of Government without providing an intelligible   
   principle to guide the delegees use of discretion. Todays president   
   insists that IEEPA grants presidents unbounded discretion in wielding a   
   power that is neither granted to him by the Constitution nor delegable   
   by Congress.   
   Constitutional scholar Philip Hamburger says the Constitutions framers   
   thought the natural dividing line between legislative and nonlegislative   
   power was between rules that bound subjects and those that did not.   
   Tariffs bind Americans seeking to purchase imports.   
      
   The second law enacted by the first Congress established detailed tariff   
   rates (e. g. , 1 cent per pound of brown sugars). Tariff changes were   
   largely Congresss domain until the 1930s, when Congress began empowering   
   presidents to negotiate  subject to congressional approval  tariff   
   reductions. In 1974, Congress authorized the president to impose   
   surcharges of limited amount (15 percent) and duration (five months).   
   And an appellate court stressed in 1975 that a declaration of national   
   emergency is not a talisman enabling the president to rewrite the tariff   
   schedules because this would unconstitutionally authorize the exercise   
   of an unlimited power.   
      
   The 1974 law authorized the president to impose tariffs only to address   
   balance-of-payments deficits. Trumps idiosyncratic tariffs punish   
   Brazil, with which there is a U. S. trade surplus, because he objects to   
   Brazils internal politics.   
      
   States of emergency (51 are extant) tempt presidential abuses (the   
   pandemic emergency was Joe Bidens pretext for trying to cancel $430   
   billion in student debt) and are difficult to end: Congress cannot   
   easily reclaim power delegated to the president, who can veto Congresss   
   retrieval attempts. Given the two-thirds vote requirement for veto   
   overrides, delegation tends to be a ratchet clicking to the presidents   
   advantage.   
      
   The president claims his declaration of an emergency is unreviewable   
   because it involves foreign relations. But tariffs, which have domestic   
   consequences and purposes, properly are congressional exercises of a   
   constitutionally enumerated power and must come from statutes.   
      
   Todays president is a hare, darting here and there. The judiciary is   
   generally a tortoise, slow because it is deliberative. But you know the   
   fable. And here is a fact: This tariff case could markedly restrain this   
   rampant presidency.   
   By George F. Will   
   George F. Will writes a twice-weekly column on politics and domestic and   
   foreign affairs. He began his column with The Post in 1974, and he   
   received the Pulitzer Prize for commentary in 1977. His latest book,   
   "American Happiness and Discontents, " was released in September 2021.   
   follow on X@georgewill   
      
   https: //www. washingtonpost. com/opinions/2025/07/25/trump-tariffs-   
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