Thread: Roberts wrongly, and arbitrarily, conclude tariffs are prohibited under the IEEPA

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From Justice Roberts’ opinion:

(a) IEEPA authorizes the President to “investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit . . . importation or exportation.” §1702(a)(1)(B). Absent from this lengthy list of specific powers is any mention of tariffs or duties. Had Congress intended to convey the distinct and extraordinary power to impose tariffs, it would have done so expressly, as it consistently has in other tariff statutes.

From Justice Kavanaugh's opinion:

For both the Nixon tariffs and the Ford tariffs upheld by this Court in Algonquin, the relevant statutory provisions did not specifically refer to “tariffs” or “duties,” but instead more broadly authorized the President to “regulate . . . importation” or to “adjust the imports.” Therefore, when IEEPA was enacted in 1977 in the wake of the Nixon and Ford tariffs and the Algonquin decision, Congress and the public plainly would have understood that the power to “regulate . . . importation” included tariffs. If Congress wanted to exclude tariffs from IEEPA, it surely would not have enacted the same broad “regulate . . . importation” language that had just been used to justify major American tariffs on foreign imports.”

Having provided a portion of the Majority opinion and a portion of the Minority opinion from LEARNING RESOURCES, INC., ET AL. v. TRUMP, PRESIDENT OF THE UNITED STATES, ET AL.. quoted above, the following facts become glaringly obvious.


Congress, by its statutory language did not specifically prohibit nor allow tariffs to be used by a President under IEEPA. But activist Roberts took it upon himself to arbitrarily and whimsically conclude tariffs are prohibited, in spite of tariffs under IEEPA’s predecessor statute, the Trading with the Enemy Act, being used which authorized the President to “regulate . . . importation.”

Justice Roberts has certainly expose himself for the notoriously evil activist he is, who uses his office of public trust to impose his personal predilections as the rule of law which he also did when upholding Obamacare, despite an allowance for a national healthcare plan is nowhere to be found in the specification of particulars found beneath Article 1, Section 8, Clause 1, for which Congress may lawfully tax and spend.

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What is troubling about Roberts’ written opinion is, he unwittingly revealed in his written opinion why he intruded upon Congress’s exclusive authority to restrain a president who may have abused the delegation of authority granted by Congress to a president under IEEPA. Justice Roberts writes:

"Against this backdrop of clear and limited delegations, the Government reads IEEPA to give the President power to unilaterally impose unbounded tariffs. On this reading, moreover, the President is unconstrained by the significant procedural limitations in other tariff statutes and free to issue a dizzying array of modifications at will. See supra, at 3. All it takes to unlock that extraordinary power is a Presidential declaration of emergency, which the Government asserts is unreviewable. Brief for Federal Parties 42. And the only way of restraining the exercise of that power is a veto-proof majority in Congress. See 50 U. S. C. §1622(a)(1) (requiring a “joint resolution” “enacted into law” to terminate a national emergency). That view, if credited, would “represent a ‘transformative expansion’” of the President’s authority over tariff policy . . . “

As one can plainly see, Congress’s reserved power to deal with an abuse of authority delegated to a president is by a “joint resolution”, terminating the president’s asserted national emergency. But Roberts is uncomfortable with Congress’s legislated remedy which, in Roberts opinion, would allow a ‘transformative expansion’” of the President’s authority over tariff policy. In effect, Roberts assumed the Legislatures authority and in doing so engaged in judicial tyranny.

”The accumulation of all powers, legislative, executive, and judiciary, in the same hands [our Supreme Court] . . . may justly be pronounced the very definition of tyranny.” ___ Madison, Federalist Paper No. 47

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Roberts was in total error when alleging “While taxes may accomplish regulatory ends, it does not follow that the power to regulate includes the power to tax as a means of regulation. Indeed, when Congress addresses both the power to regulate and the power to tax, it does so separately and expressly.”

The truth is, our founders’ used tariffs at our water’s edge to regulate in such a manner as to encourage America’s domestic industries, e.g., see The Tonnage Act of 1789 which levied taxes on the capacity of ships entering U.S. ports, favoring American-owned vessels over foreign ones to support America’s domestic maritime industry.


The bottom line is, the above documentation confirms what Justice Thomas wrote:

“I join JUSTICE KAVANAUGH’s principal dissent in full. As he explains, the Court’s decision today cannot be justified as a matter of statutory interpretation. Congress authorized the President to “regulate . . . importation.” 50 U. S. C. §1702(a)(1)(B). Throughout American history, the authority to “regulate importation” has been understood to include the authority to impose duties on imports. Post, at 9–13, 22–29 (KAVANAUGH, J., dissenting). The meaning of that phrase was beyond doubt by the time that Congress enacted this statute, shortly after President Nixon’s highly publicized duties on imports were upheld based on identical language. Post, at 14–22. The statute that the President relied on therefore authorized him to impose the duties on imports at issue in these cases. JUSTICE KAVANAUGH makes clear that the Court errs in concluding otherwise.”

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While Justice Gorsuch in LEARNING RESOURCES, INC. v. TRUMP entertains much ado about the “major questions doctrine” and its asserted purpose “. . . to sustain a claim that Congress has granted them an extraordinary power, executive officials must identify clear authority for that power . . . “, as stated by Justice Gorsuch, there is a suspicious avoidance in the majority’s opinion to forthright acknowledge that a President who perceives a “national emergency” which triggers the International Emergency Economic Powers Act (IEEPA), is a political observation and assessment of that president, and one which Congress, and not our Supreme Court, is competent and authorized to judge under our system’s separation of powers, e.g., "…..we are not at liberty to second-guess congressional determinations and policy judgments of this order, however debatable or arguably unwise they may be…The wisdom of Congress' action, however, is not within our province to second guess. _ ELDRED et al. v. ASHCROFT, ATTORNEY GENERAL (2003)

And if Congress should decide the President’s declared emergency is not legitimate, Congress specifically adopted a remedy which is found under statutory law, the 1985 adopted National Emergencies Act 50 U. S. C. §1622(a)(1) providing for a “joint resolution” to terminate a president’s emergency.

This function certainly is not within our Supreme Court members’ delegated authority to assess, and yet, the majority have decided to exercise our Legislature’s function in spite of Madison’s observation that ”The accumulation of all powers, legislative, executive, and judiciary, in the same hands [e.g. our Supreme Court] . . . may justly be pronounced the very definition of tyranny.”___ Madison, Federalist Paper No. 47
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Indeed, Justice Gorsuch in his long and rambling written opinion, fails to see the forest for the trees.

JWK

“If the Constitution was ratified under the belief, sedulously propagated on all sides that such protection was afforded, would it not now be a fraud upon the whole people to give a different construction to its powers?” -- Justice Story


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See: Judge orders U.S. Customs to process refunds on illegal Trump tariffs

"Judge Richard Eaton of the U.S. Court of International Trade in Manhattan ordered the government to finalize the cost of bringing millions of shipments into the U.S. without assessing a tariff, according to a court filing. He ordered the refunds to be made with interest."

The problem is, if Trump’s tariffs are in fact legal under one or more Congressional Acts other than the IEEPA, then Trump's actions are law-abiding actions, regardless of Trump’s knowledge or beliefs.

See:

Tariff Act of 1930, Section 338

Reciprocal Trade Agreements Act of 1934

Section 232 of the Trade Expansion Act of 1962;

Section 201 of the Trade Act of 1974;

Section 301 of the Trade Act of 1974;


With respect to the lawfulness of an action regardless of the actor's [Trump's] beliefs or knowledge, such a question, as I remember when studying the law many years ago, falls within the general principle that if a statute provides the necessary power, the action is intra vires (within power).


If Trump's tariffs are constitutional under one or more of the Acts I mentioned, other than the IEEPA, then the tariffs are lawful, intra vires, (within the government’s power). The petitions seeking to recoup the tariffs they paid, would have to prove they are not intra vires (within the government’s power) if the Trump Administration appeals on such grounds.

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A review of the following Congressional delegations of powers to our Executive Office appears likely to allow the tariffs imposed by Trump.


Tariff Act of 1930, Section 338, which allows tariffs of up to 50% on countries that disadvantage U.S. commerce.


Reciprocal Trade Agreements Act of 1934, which authorizes the President to negotiate trade deals and adjust tariff rates by up to 50% without further congressional action.


Section 232 of the Trade Expansion Act of 1962, which allows the President to adjust imports that "threaten to impair the national security".


Section 201 of the Trade Act of 1974, which allows temporary tariffs (up to 50%) to protect domestic industries from injury.


Section 301 of the Trade Act of 1974, allows retaliatory authority against "unjustifiable" or "unreasonable" foreign trade practices.


Adhering to U.S. tax law principles.


If a tariff is constitutional under the array of statutory laws passed by Congress, then it is lawful, intra vires, (within the government’s power).


If a tax is paid under a "wrong" statute not requiring a tax paid, but the amount of tax paid is legally owed under a different statute, no refund is owed. See: Lewis v. Reynolds (1932), and Donnelley Corporation v United States (2011) in which the court notes:


“No one is entitled a refund who has not actually overpaid his taxes. This axiomatic observation, made first by the Supreme Court in Lewis and recognized by this circuit in Estate of Michael, defeats this taxpayer's claim. Here, Donnelley has not overpaid its taxes, and we will not allow it to reap where it has not sown. We accordingly affirm the judgment of the district court.”

Conclusion

If Trump's tariffs are constitutional under any Acts passed by Congress, then they are lawful, intra vires, (within the government’s power), and a petitioner to sustain a claim of not owing an amount paid to government, would have to prove they do not owe the amount in question paid to government.

Trump would more than likely win an appeal to Judge Richard Eaton's ruling, if he challenges that his tariff is lawful intra vires.