Does adherence to the separation of powers risk nuclear war? The federal government seems to think so.
Fortunately, the U.S. Court of International Trade last week struck down President Donald Trump’s tariffs as unlawful in companion cases brought by small businesses and 12 states. But the litigation will continue, likely up to the U.S. Supreme Court. So, it is worth briefly dwelling on the government’s argument, which raises the specter of nuclear war.
Last week, before the court struck down the tariffs, the government filed its response to a lawsuit brought by Princess Awesome LLC and 10 other small businesses challenging the administration’s tariffs. Those businesses, represented by my Pacific Legal Foundation colleagues and me, are suffering significant hardship because of the tariffs. They sought relief through the courts, as all Americans are entitled to do, by pointing out that the Constitution gives the tariff power to Congress, not the president.
The government’s basic argument is that, when it comes to any issue related to foreign policy and national security, the “success of the Nation” depends on the president’s ability to act alone and without interference. Therefore, the government contends, the International Emergency Economic Powers Act gave the president unlimited tariff authority to use as leverage against foreign powers that purportedly threaten the United States. Now the president is using that leverage to address sustained fentanyl imports and persistent trade deficits, and the government says the courts should not interfere.
It is not unusual in our history for the president to assert his primacy in matters of foreign policy and national security. In fact, the presidency was created as a unitary executive, in part, to allow him to act swiftly in national security crises. Alexander Hamilton, in Federalist No. 70, viewed the president’s unitary nature as “essential to the protection of the community against foreign attacks.”
But the Constitution balanced the president’s unitary nature with a significant foreign policy role for Congress as well: The Senate approves treaties, and Congress, as a whole, can declare war, regulate foreign commerce, and impose tariffs. Congress passed IEEPA to help manage the balance between legislative and executive roles in foreign policy. The law grants the president significant authority over foreign commerce, to freeze assets, block transactions, and prohibit imports, in times of national emergency. But Congress did not authorize the president to impose tariffs.
In its response to the Princess Awesome lawsuit, the government now rejects this balance. It asserts that “only the President and his advisers have the expertise and information to properly and effectively protect the United States from foreign threats.” So, the president must have the authority to impose tariffs unilaterally. The government points to a ceasefire recently reached between nuclear-armed India and Pakistan after the president purportedly offered both countries trading access as its example. The obvious implication here is that if the courts enforce the Constitution’s separation of powers, they are risking nothing short of nuclear war.
But that is neither how the Constitution is structured nor an accurate representation of the stakes. The framers grappled with these issues and chose to give significant national security and foreign policy authority to Congress. The Constitution does not even explicitly grant the president any extra powers during a national emergency. Yet, since 1789, the president and Congress have successfully navigated this division of responsibility, resulting in the U.S. becoming the indisputable global superpower, entering into numerous agreements to lower trade barriers, and, indeed, avoiding nuclear war. But at no time has a president required unlimited tariff authority to address foreign threats to the U.S.
Nevertheless, the government asserts that any court ruling to reaffirm the tariff power belongs to Congress, where the Constitution vested it, would “create a foreign-policy disaster.” But the administration knew the rules of the game when it set out on this path. It chose to risk the legal and constitutional invalidity of its negotiating leverage when it employed IEEPA to give itself a free hand to impose and suspend tariffs of any amount on any country. To the extent that there are consequences from last week’s ruling that the tariffs are unlawful, that responsibility lies with the administration alone.
SPARE US THE TARIFFS ON SCOTCH — AND EVERYTHING ELSE
The government’s brief deflects this responsibility onto its own citizens who have followed the law and properly sought review in the courts. It accuses our clients and the other plaintiffs of attempting to override the president’s judgments in favor of their own personal foreign policy views. It asserts that their lawsuit is “remarkably wrong.” And it claims that their success will “[endanger] both the United States and the entire world.” This is nonsense.
The Constitution established a structure for our government that is our nation’s best protection for individual lives and liberty. It is “a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances.” Princess Awesome and the other small business plaintiffs simply ask that this administration be held to the same constitutional rules as every other, as it now has. There is nothing dangerous about that.
Josh Robbins is an attorney at Pacific Legal Foundation.