It’s never a good idea to treat U.S. Supreme Court justices as if they’re idiots. And yet U.S. Solicitor General D. John Sawyer, inits 5th novemberDefense of President Trump’s tariff authority, came very close.
Sometimes lawyers are called upon to defend the indefensible. And those who refuse to do so may quit or are sometimes fired, as was donefederal attorneyWho were not confident that they had enough evidence to file a case against some of Trump’s enemies.
Sawyer may have tried his best to put lipstick on Trump’s tariff pig — but it’s still a pig.
The most ridiculous aspect of Sawyer’s Supreme Court argument was his claim that federal revenue from Trump’s tariffs was “incidental.” Sawyer claimed that Trump was merely exercising his constitutional power to manage foreign policy, not raise federal revenues.according to sawyer“These are regulatory tariffs, they are not revenue-raising tariffs. The fact that they raise revenue is merely incidental.”
The problem with Sawyer’s claim is that the President and his advisers have repeatedly citedincrease in federal revenuesAs one of the reasons for imposing tariffs.
Take, for example, Trump’s inauguration speech on January 20Trump said“I will immediately begin an overhaul of our trade system to protect American workers and families. Instead of taxing our own citizens to enrich other countries, we will impose tariffs and taxes on foreign countries to enrich their own citizens.”
Does it seem like federal revenue from tariffs was a byproduct of Trump’s plan?
Trump further explained, “To that end, we are establishing the External Revenue Service to collect all tariffs, duties and revenues. This will bring into our treasury a tremendous amount of money coming from foreign sources.”
Of course, as almost everyone except Trump understands, American companies and individualspay those tariffsNot abroad. In other words, Trump is raising taxes on Americans.
No one can honestly claim that federal revenue from tariffs is contingent. The judge knows it, Trump knows it, and Sawyer knows it, even if he says otherwise.
So why did the Solicitor General of the United States make an obviously false claim to the Supreme Court? To get a clear text of the US Constitution.
Article I of the Constitution vests in Congresspower to tax-And there are tariff taxes. That was intentional. If Americans were going to be taxed, the Founders wanted the decision to be made by the public’s elected representatives, not any one person.
Over the years, Congress has entrusted the President with the role of managing foreign policy.right to impose tariffsFor a limited time on specific items for a specified purpose – after declaring a national emergency. And most presidents have generally stayed within those limits. President Ronald Reagan did in 1987But not Trump.
The judges were very respectful of a man they knew was trying to deceive, or at best, confuse, them. Although it was clear that the justices were not buying this argument, some grappled with how to balance the President’s power to conduct foreign policy with the potential need for tariffs as a tool.
How will this happen? Given his alleged skepticism, there is a very good chance that a judge will rule that many of Trump’s tariffs are unconstitutional. They could take a narrow approach and rule on a law that Trump says gives him the right to impose broad tariffs at will.International Emergency Economic Powers Act 1977— doesn’t give him that power. This would mean that the tariffs imposed under that law are unconstitutional.
Nevertheless, the expectation is that some of the tariffs imposed by Trump will be allowed under existing law – for example,Section 232 of Trade Expansion Actof 1962 – and hence the court can leave them in place.
However, Team Trump hasclarifyIf it loses in court, Trump would claim the power under another law, thus restarting the entire judicial process. This is how a President points a finger at the Supreme Court and does what he wants.
You may remember that President Joe Biden also did something similarSupreme Court ruledHe did not have the authority to forgive all of the approximately $430 billion in student loans. An alternative approach was called “Plan B”, whichBiden implementedRepublicans harshly criticized Biden for disregarding the judges. We’ll see if they’re equally critical of Trump.
After Trump repeals many of the existing tariffs, the Supreme Court could issue a sweeping ruling laying out what powers the President does and does not have when it comes to imposing tariffs. This would be the best way to resolve this issue so that the economy and trade policy can stabilize and taxpayers can be saved from paying higher tariffs.
Merrill Matthews is co-author of “On the Edge: America Faces the Entitlements Cliff.”
