Well, that was painful. For the Trump Administration’s lawyer, that is. The U.S. Court of Appeals for the Federal Circuit on Thursday heard oral arguments in a challenge to President Trump’s worldwide tariffs (V.O.S. Selections, Inc. v. Trump). Judge after judge doubted the Administration’s arguments.

The Administration says the 1977 International Emergency Economic Powers Act grants a President sweeping authority to impose tariffs. The 11 judges were mostly skeptical. Out of the gate one judge pointed out that no President has ever used the emergency law to impose tariffs.

No problem, replied Justice Department attorney Brett Shumate. He said the law is written broadly to let a President “regulate” the “importation” of foreign property if he declares a national emergency for any reason. Mr. Trump in February invoked a fentanyl emergency to slap tariffs on China, Mexico and Canada and later declared the trade deficit an emergency to justify border taxes on anyone.

The judges weren’t buying it. “Why would we read tariffs into that statute?” and “Is the plain meaning of ‘regulate’ to impose tariffs or taxes?” they asked. And isn’t the Administration “upending the entire tariff schedule” that Congress had enacted?

Mr. Shumate argued that Mr. Trump’s border taxes are similar to Richard Nixon’s across-the-board 10% tariffs in 1971 under a precursor to IEEPA. Those were upheld by an appeals court in 1975 (Yoshida International). Mr. Shumate said Congress implicitly ratified a President's tariff authority when it enacted IEEPA two years later.

But that appellate court stressed that Nixon’s tariffs were legal only because they were “temporary measures” and weren’t “‘imposing whatever tariff rates [a president] deems desirable.’” Mr. Trump is doing the latter. As one judge told Mr. Shumate, “you are just discarding portions of Yoshida that you don’t like.”

Mr. Nixon’s tariffs for the most part also didn’t exceed the tariff “schedule that had already been enacted,” said another judge. Mr. Trump’s do. Mr. Shumate’s fall-back was that IEEPA was meant to be interpreted “very broadly.” But “is that really how we interpret statutes anymore?” and “do you think that standard survives Loper Bright?” judges asked.

The High Court’s Loper Bright (2024) landmark says that judges shouldn’t automatically defer to regulators’ interpretations of vague laws. The Court’s major questions doctrine also holds that Congress must give the President express authority for actions with economic and political significance. Mr. Shumate said neither precedent applies to a President’s power to conduct foreign policy.

But the Constitution gives Congress the power to regulate trade. Congress has delegated to the President limited authorities to impose tariffs that typically entail procedural requirements—for instance, up to 15% for 150 days in response to “large and serious” balance-of-payments deficits (Section 122) and on countries with discriminatory trade practices (Section 301).

As one judge told Mr. Shumate, it seems “you’re asking for unbounded authority” to impose tariffs. Yes he is. But as the small business plaintiffs argue, the President isn’t a king, and the Constitution doesn’t let him command the trade tides.

(http://www.autoadmit.com/thread.php?thread_id=5757098&forum_id=2)#49148992)