Are Trump’s tariffs legal? With Jennifer Hillman

Episode Summary

Executive Summary: The episode examines whether Trump’s IEEPA-based tariffs are legal and likely to survive Supreme Court review. Jennifer Hillman argues the case hinges on statutory text and separation of powers: tariffs are constitutionally a congressional power, IEEPA has never been used this way, and the Court is likely to be skeptical. If Trump loses, he still has narrower fallback options, but the era of blanket emergency tariffs could be in jeopardy.

Main Topics: Supreme Court challenge to Trump’s tariff authority (Priority: 5/5): The conversation centers on an upcoming Supreme Court case testing whether IEEPA authorizes the president to impose tariffs without Congress. Hillman rates the chance of tariffs being struck down at 6/10, emphasizing the difficulty of reading tariff power into a statute that never explicitly mentions it. What IEEPA was designed for versus how Trump is using it (Priority: 5/5): Hillman explains that IEEPA evolved from wartime emergency powers intended for embargoes and sanctions, not tariffs. Trump’s use of the phrase 'regulate importation or exportation' as tariff authority is presented as historically unprecedented. Constitutional separation of powers and congressional authority (Priority: 5/5): A major theme is that the Constitution assigns tariff and foreign commerce powers to Congress, not the president. The question is whether Congress clearly delegated those powers through IEEPA; Hillman argues it did not. Legal and political limits on Congress’s ability to stop the tariffs (Priority: 4/5): Although IEEPA originally allowed Congress to terminate an emergency, the Supreme Court’s Chadha decision makes that mechanism effectively unusable without a veto-proof majority, which is politically implausible in a divided Congress. Trump’s fallback tariff tools if the Supreme Court rules against him (Priority: 4/5): Hillman outlines alternative statutes Trump could use, including Section 122, Section 232, Section 301, and Section 201, but notes these require findings, investigations, and are usually narrower and product/country-specific. Implications for global trade rules and national security exceptions (Priority: 5/5): The discussion widens to how Trump’s strategy erodes trust in U.S. commitments and encourages other countries to invoke national security exceptions more broadly, potentially weakening the WTO-based system.

Key Arguments: IEEPA was created for wartime embargoes and sanctions, not as a general tariff statute; its text never mentions tariffs or duties. The U.S. Constitution clearly gives Congress the powers to tax, impose tariffs, and regulate foreign commerce, so presidential tariff authority must come from a valid delegation. Trump’s argument depends on reading 'regulate importation' to mean 'impose tariffs,' but the same phrase would need to mean different things for imports and exports, which is legally strained. The Court is likely to treat this as a real merits case about statutory interpretation and separation of powers, not just as a deference-based national security matter. Congress’s built-in emergency-termination mechanism under IEEPA is largely ineffective after Chadha because it would now require bicameral action and a likely veto-proof majority. If Trump loses, he still has narrower legal tools: Section 122 for a temporary across-the-board tariff and other statutes for targeted investigations and tariffs. A Supreme Court win for Trump would not just affect trade; it could expand executive power over transactions with foreign links more broadly under IEEPA. Trump’s tariff strategy has undermined international trust in the U.S. and may encourage other governments to stretch national security exceptions in trade law.

Data Points: Likelihood of Supreme Court striking down tariffs: 6/10 - Jennifer Hillman’s assessment of how likely the Court is to reject Trump’s IEEPA tariff authority. IEEPA enactment year: 1977 - Hillman notes the statute Trump relies on was passed in 1977 and has never been used to impose tariffs. Supreme Court argument date: November 5 - Hillman says the case will receive full briefing and oral argument on this date. Congressional override threshold: Two-thirds (veto-proof majority) - Because of Chadha, terminating an IEEPA emergency would now require both houses plus a veto-proof majority. Temporary tariff authority under Section 122: 15% tariff - Hillman says Trump could declare a balance-of-payments problem and impose a 15% across-the-board tariff. Section 122 time limit: Up to 150 days - The temporary tariff under Section 122 can last for a maximum of 150 days. Tariffs affected by IEEPA challenge: Canada, Mexico, China, and broad across-the-board tariffs - Hillman identifies fentanyl-related tariffs on Canada/Mexico/China and universal IEEPA tariffs as the challenged measures. Recent tariff rates cited: 15%, 19%, 20%, 39% - Examples of rates Trump has imposed or contemplated under the IEEPA-based framework, including a 39% tariff on Switzerland. Amicus brief support: 207 members of Congress - Hillman references a congressional amicus brief arguing IEEPA contains no tariff delegation.

Pivotal Quotes: "I think it's going to be really hard for the court to actually write an opinion that says that this particular statute... actually provides the tariff authority that the president has claimed." — Jennifer Hillman: Her explanation for rating the odds of a Trump loss as moderately likely. "The word tariff and duty do not appear anywhere in this statute." — Jennifer Hillman: Her core textual argument that IEEPA cannot plausibly be read as a tariff statute. "Whatever else you can say about what Trump has done is he has utterly destroyed every country in the world's trust in the United States that you can take the United States at its word." — Jennifer Hillman: Her broader critique of the global damage caused by unilateral tariff policy.

Implications: A ruling against Trump would constrain emergency tariff power and force more targeted, legally grounded trade actions. A ruling for him could massively expand presidential power and weaken both congressional oversight and global confidence in rules-based trade.