The New York Times reports that on Wednesday, the Supreme Court will “consider for the first time whether to say ‘no’” to President Donald Trump “in a lasting way” as they weigh in on the president’s use of emergency powers to impose sweeping tariffs on nearly every U.S. trading partner.
According to the Times, the case is a difficult one, made even more complex by Trump’s efforts to personalize the dispute. Observers of the court noted that the justices would be keenly aware that Mr. Trump would perceive a legal defeat as a personal blow.
Donald B. Verrilli Jr., who served as solicitor general during the Obama administration, agrees, saying, “You can’t help but think that that’s going to be hovering over the decision-making process in this case.”
So far, the Supreme Court’s six conservative justices have been receptive to Mr. Trump’s claims of presidential authority, the Times says. However, the tariffs case marks the first time the justices will weigh in on the underlying legal merits of Trump’s actions.
“At the end of this term, we’ll see wins and losses for Trump on presidential power,” said Jack Goldsmith, a Harvard Law School professor and former top Justice Department lawyer under George W. Bush. “This is the case I think is the closest, so I don’t know which way it will cut.”
The Times notes that this case has divided the conservative legal community. Trump’s lawyers argue that an obscure 1977 statute gives him broad authority to impose tariffs when he believes an emergency exists. However, that law does not specifically mention tariffs, taxes, or duties.
“Emergency powers are meant to be used in emergencies,” said Michael W. McConnell, a former federal appeals court judge nominated by President George W. Bush, who is leading a coalition of small businesses challenging the tariffs. “No Supreme Court would want to provoke a confrontation with a president of the United States unnecessarily, but on the other hand, the law is the law.”
University of Texas at Austin law professor Tara Lee Grove believes it may be “a stretch” to characterize trade deficits as an emergency. Still, she says the 1977 statute “is broad and appears to give the president a lot of discretion.”
“The justices will be struggling with whether they want to second-guess any presidential decision about an emergency,” Grove added.
Court observers have pointed to a dissenting opinion from Judge Richard G. Taranto, appointed by President Barack Obama, as a possible guidepost for the Supreme Court’s conservatives should they decide to back Trump. Taranto argued that Congress intentionally used broad language to give presidents flexibility, embodying “an eyes-open congressional grant of broad emergency authority in this foreign affairs realm.”
D. John Sauer, the solicitor general, stated that Trump’s use of the 1977 statute to impose tariffs was not an unlimited delegation of power and referenced Judge Taranto’s dissent ten times in his filing.
Grove notes that the court will face a “legitimacy dilemma” as they weigh the implications of their decision for the president’s legacy and the economy. “No matter what they do in this case, it will be painted as political,” she says.
Goldsmith believes the Supreme Court still maintains some integrity, but if Trump attends oral arguments as he has indicated, it could make the situation “awkward.”
“I doubt the court wants to be perceived as bowing down to him,” Goldsmith said, “but if Trump does show up, it’s just going to make it harder for them to rule for him.”
https://www.alternet.org/trump-tariffs-supreme-court-2674259628/
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