In April, President Trump celebrated his decision to unilaterally impose tariffs on imported goods as “historic.” History may vindicate the president’s declaration, for it could be the first time executive overreach has been undone by a pastry analogy.
During recent Supreme Court oral arguments over the president’s use of the International Emergency Economic Powers Act (“IEEPA”) to impose tariffs, Justice Kavanaugh pressed Oregon Solicitor General Benjamin Gutman on what he called a curious “donut hole” in the argument against the president’s tariffs.
If IEEPA allows the president to halt all trade with foreign states, Kavanaugh asked, why would it stop short of allowing the president to take the lesser step of imposing tariffs?
“It’s a fundamentally different power,” Gutman said. “It’s not a donut hole—it’s a different kind of pastry.”
Indeed, there is no IEEPA donut hole. Congress deliberately withheld tariff authority from the president in the statute, reserving the power to tax Americans for itself and only granting the president tariff power in specific emergency statutes.
For example, when President Nixon took the United States dollar off the gold standard in 1971, he imposed tariffs to avoid an impending balance-of-payments crisis. Congress later ratified the action by amending the Trade Act of 1974. The law authorizes presidents to use import surcharges in such emergencies, but capped them at 15 percent and limited them to 150 days.
Emergency powers to curb trade were designed for real crises. If the United States were facing a “Red Dawn”-style invasion, the president would have the emergency powers to stop imports and freeze the assets of the invading nations. He could not tax Patrick Swayze and the rest of the Wolverines. But the tariffs that President Trump imposed using IEEPA amount to little more than a tax on Americans, a power reserved for Congress.
Solicitor General John D. Sauer, representing the president’s position, gave the game away when he claimed the tariffs were designed not to punish an enemy state, but to influence and direct Americans’ consumer desires. Sauer posited that in an ideal world, Americans would not pay any tariffs because they will cease to buy foreign goods altogether, choosing instead to reindustrialize the country by purchasing domestic-made goods.
Sauer’s argument underscores that President Trump’s tariff plan is not aimed at foreign powers, but American citizens. Taxing Americans to influence domestic consumption would clearly overstep constitutional bounds. The president cannot seize that power on a whim – something any originalist justice would do well to remember.
While IEEPA does not grant the president tariff power, it does explicitly grant him the power to impose quotas on foreign goods. If the president’s aims are truly to reinvigorate domestic manufacturing as he claims – a flawed plan in and of itself – then quotas are the better option, and they achieve the same protective effect as tariffs without requiring Congress to cede its taxation power.
Unfortunately for the president, there is no hole in IEEPA. Congress baked limits on his tariff authority into the statute. The administration may have been counting on the justices to overlook this vital check on executive overreach, but they cannot ignore the explicit limits in federal law.
While the Supreme Court has granted latitude to President Trump to exercise appropriate authority when it comes to dealing with foreign nations and emergencies, you can bet dollars to donuts that the Court will check this abuse of power.
John J. Vecchione is a senior litigation counsel at the New Civil Liberties Alliance, which filed the first case against the IEEPA tariffs, Simplified, et al. v. President Donald J. Trump.
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