Trump continues to push past power limits

By a 6-3 margin, the U.S. Supreme Court held in Learning Resources v Trump that President Trump acted beyond presidential authority under the 1977 International Emergency Economic Powers Act in ordering wide ranging tariffs on the imports of scores of nations. The majority of the Court rejected the Administration’s contention that the power to “regulate” trade during a time of a declared emergency includes the power to levy tariffs.

The members of the majority did not rely upon the same reasoning in reaching their opinion. Chief Justice Roberts and Justices Gorsuch and Barrett applied the “major questions doctrine” in invalidating Trump’s action. The doctrine has been applied by conservative justices in most recent years by insisting that delegation of substantial powers by Congress to the president must be done in specific terms leaving no question of interpretation. Since the power to “regulate” trade does not specifically include the power to levy tariffs, Trump’s action in doing so was declared invalid. The three “liberal” members of the Court, Associate Justices Elena Kagan, Sonya Sotomayor and Ketanji Brown Jackson, also held that IEEPA did not delegate the power to levy tariffs to the president but avoided mention of the major questions doctrine which was consistent with their not embracing the doctrine in earlier controversies.

The remaining three conservative Justices — Clarence Thomas, Brett Kavanaugh and Samuel Alito — concluded that IEEPA did delegate an emergency presidential power to levy tariffs as a part of the power to regulate trade because Congress in other statutes had delegated tariff powers to the president. While all three dissenters embraced the ‘major questions doctrine” during the Biden Administration, they skirted the doctrine in their dissents.

While the ruling was a major blow to Trump’s agenda, he quickly rebounded by levying a 15-percent global tariff in pursuance of Section 122 of the 1974 Trade Act. The act empowers the president to levy global tariffs not to exceed 15% for up to 150 days without additional Congressional approval in response to “large and serious US balance of payments deficits”. The problem with his doing so is that the U.S. is not confronted with” a large and serious balance of payments deficit.”

While we continue to have trade deficits with certain nations, including China, trade deficits are not synonymous with balance of payments deficits. When a nation such as China experiences a trade surplus with the U.S., the surplus is paid for in U.S. dollars which are ordinarily reinvested by the foreign nation in the U.S. Treasury — thus avoiding a large and significant balance of payments deficit. Trump and his advisors know this, but again he has chosen to act beyond delegated authority. It is his pattern to act beyond the reaches of both constitutional and statutory authority. He will undoubtedly succeed in applying his unauthorized tariff for 150 days because a judicial ruling invalidating his action is unlikely within the five-month time frame.

All of this is important, but it has taken a back seat to Trump’s weekend ordering of aerial attacks on Iran without prior authorization from the U.S. Congress. The attacks killed Supreme Leader Ayatollah Ali Khamenei, in addition to the Islamic Revolutionary Guard Commander and the Chief of Staff of Iranian Armed Forces. Hundreds of Iranian civilians have also been killed including nearly 200 school age girls.

Iran’s counter attacks on US installations in the region have resulted in the deaths of US military personnel. Trump’s stated reasons for the attack have not been supported with facts. Evidence is lacking to show that Iran was close to developing a nuclear weapon or an ICBM that can strike the U.S.. The attacks have clearly resulted in a leadership change in Iran, but it remains to be seen if a regime change will be the result or what the characteristics of that regime might be.

The combined U.S. and Israeli attack on Iran is a war of choice rather than in response to an imminent threat of an Iranian attack on the U.S. The attack was ordered by Trump without prior consultation with or approval from Congress. The majority party in both the House and Senate remains hesitant to contest Trump’s assertion of war powers, just as they are hesitant to contest his assertion of tariff powers and his lawlessness in enforcing immigration policy. A president who recognizes no legal boundaries in asserting power over both domestic and foreign affairs coupled with a passive majority party in Congress invites authoritarian rule.

The U.S. needs a leadership change of the same scope Iran has just experienced but through the ballot box rather than through aerial bombings.