(Capital Press)—President Trump’s tariffs were in court May 13 as the U.S. Court of International Trade held the first hearing on the legality of the president’s tool for reshaping U.S. trade policy.
Numerous lawsuits, including one filed in the same court by a blue-state coalition led by Oregon Attorney General Dan Rayfield, claim Congress never ceded to the president power to set tariffs at any rate on any country he wishes.
The Justice Department argues Congress did give Trump that authority. The 1977 International Emergency Economic Powers Act allows the president to “regulate” imports to counter an unusual and extraordinary threat.
Deputy Assistant Attorney General Eric Hamilton told the three-judge panel that “regulate” includes setting tariffs and that the trade deficit is a national emergency.
Tariffs are meant to stimulate exports, decrease reliance on imports and enable Trump to negotiate deals that make the country more secure, Hamilton said.
“That’s happening right now,” he said. The tariffs have yielded a deal with the United Kingdom, spurred talks with China and motivated dozens of countries to seek trade agreements, according to the White House.
They also are coming under legal attack. Oregon and 11 other states are seeking a preliminary injunction overturning the 10% baseline tariff Trump has imposed on all countries, as well as higher tariffs on China, Mexico and Canada.
The lawsuit that reached the trade court May 13 was filed by six businesses that either import products or manufacturing parts. Their attorney, Jeffrey Schwab of the Liberty Justice Center, said the trade deficit is too common to be considered unusual, extraordinary or an emergency. “This is a normal state of affairs,” he said.
Also, the word “tariffs” doesn’t appear in the emergency powers act, Schwab noted. The court challenged him to explain why “regulate” didn’t include imposing tariffs.
“It (regulate) means a lot of different things, but it doesn’t mean tariffs,” Schwab said. “Regulate implies limiting or prohibiting or having some sort of process that checks a product for safety. Things like that.”
The Constitution assigns Congress the job of setting tariffs. By passing the 1977 act, Congress delegated the job to the president, Hamilton said. “They did give it away,” he said. “ ‘Regulate’ is a very broad term.”
Whether the trade deficit qualifies as an emergency is a political question the court should leave alone, Hamilton said.
Schwab argued that even if Congress intended to give the president broad powers to set tariffs, it shouldn’t have. Congress can’t delegate away its constitutional duties, he said.
He also brought up the “major-questions doctrine,” the idea that Congress should clearly state its intent on major issues before the executive branch acts.
“I think it’s pretty clear that the power to unilaterally tariff any county at any rate is of vast economic and political significance,” Schwab said.
Judges Gary Katzmann, Timothy Reif and Jane Restani presided over the hearing and also will hear the states’ lawsuit. Katzmann was appointed by Barack Obama, Reif by Trump and Restani by Ronald Reagan.