Hoover Institution (Stanford, CA)—Senior Hoover Fellows Michael McConnell and Philip Zelikow and Adjunct Senior Fellow Richard Epstein have filed an amicus brief in the United States Court of International Trade alongside an array of former US judges and other officials, challenging US President Donald Trump’s imposition of broad reciprocal tariffs without involving Congress.
A hearing on the matter is scheduled for May 13 before the Court of International Trade in New York City. The Court of International Trade has primary jurisdiction over all civil cases concerning international trade and customs law. In a case of this kind involving a constitutional challenge, the Court sits as a three-judge panel.
Also named in the brief are former US Attorney General Michael Mukasey, former Judge John Daniel Tinder, and former White House Counsel Peter Wallison. In addition, former Senator and Virginia Governor George F. Allen, former Defense Secretary Chuck Hagel, former United Nations Ambassador and Senator John C. Danforth, and a number of former law professors and deans.
“This is a remarkable case,” Zelikow said. “It is the most important test of presidential emergency powers since the Truman administration. It goes straight at a power expressly granted to Congress that was at the core of the Constitution, a power at the root of why the American Union was founded. And, as our brief points out, ‘the separation of powers remains the first and strongest safeguard of liberty in a constitutional republic’.”
Summary of the Argument
Filing to join the matter of VOS Selections Inc. v. Donald J. Trump, the amici, with McConnell as lead counsel, point out that the Constitution states explicitly that the power to impose tariffs, like the taxation power, was given to Congress, not the president. Judge McConnell, now at Hoover and the Stanford Law School, is the author of a recent major work on the scope of presidential power, The President Who Would Not Be King: Executive Power under the Constitution (Princeton University Press). The brief explains that “the powers to tax, to regulate commerce, and to shape the nation’s economic course must remain with Congress. They cannot drift silently into the hands of the president through inertia, inattention, or creative readings of statutes never meant to grant such authority.”
The issue, the amici argue, is fundamental to the American system of government and is nonpartisan. “This dispute is not about the wisdom of tariffs or the politics of trade. It is about who holds the power to tax the American people,” they write in the brief, filed on April 23. “May a president, absent a clear delegation from Congress and without guidance that amounts to an intelligible principle, unilaterally impose sweeping tariffs under laws never designed for that purpose?”
They point out that the president’s citation of the 1977 International Emergency Economic Powers Act (IEEPA) to justify his action turns the original purpose of that law inside out. The law was adopted to limit presidential emergency powers, not extend them. None of its sponsors had thought it granted broad powers to levy tariffs or taxes. The Act was meant to respond to rare and transitory emergencies, not what the brief describes as “longstanding policy grievances,” a president may have with a foreign trading partner.
“IEEPA allows the president to impose sanctions in response to genuine emergencies—not to reorder the economy in response to long-term trends. Its legislative history is clear: Congress never intended it as a backdoor for permanent tax policy, nor as a means of sidestepping Article I (of the Constitution).”
Whatever the Trump administration’s core motivation for imposing the tariffs, however dire, it does not suspend the constitutional role of Congress in matters of trade. The amicus brief also points out that no president since the introduction of IEEPA in 1977 has used the act in this manner.
The matter the brief joins involves six US firms, coming from a variety of goods-producing sectors—including commercial pipe, plastics production, bicycles sales, and recreational fishing—challenging the broad imposition of tariffs on the import of inputs they rely on, arguing that only Congress holds the constitutional power to do so.
