Tariffs to Continue Under Different Set of Rules: Attorney

Okay, joining us now for analysis on this is attorney Alan Mendenhall. He's a research fellow in the Thomas A. Rowe Institute for Economic Policy Studies and senior advisor for the Free Enterprise Initiative at the Heritage Foundation. So Alan, thank you so much for joining us today. The president says he'll now impose a 10% global tariff following the ruling. He says this ruling confirms he can use much stronger alternatives. So to start off, can we get your overall reaction to this? What are those stronger alternatives? Well, so let's look at it this way. It's like a football game. You see a lot of people celebrating on social media as if it's time to tear the goalpost down, as if the game is over. But all this ruling really is under that analogy is something like a rule on whether you can review this particular play on instant replay or whether timeout was called on time. Basically, the tariffs are going to continue under another form of statutory authority. And so the game is going to keep getting played. This is not a time for people who oppose President Trump's tariffs to celebrate. And it just means that things are going to continue going on economically as they have been. What this ruling specifically does is it says the IEPA, the International Emergency Economic Powers Act, does not authorize the president to tariff imports during a time of national emergency. Now, what that does not do, it actually doesn't question whether there was a national emergency. So the president issued these tariffs under the grounds that we had trade deficits, that we had hollowed out manufacturing, that we had illegal drugs from Canada, Mexico, and China coming in. And the court didn't question any of that. All the court said under Chief Justice Roberts' writing is that these tariffs are exclusively the province of Congress under Article I, Section 8 of the Constitution, which grants the power of Congress to lay or collect taxes, and that the president can, in fact, regulate importation in national emergencies, but that those words, according to Roberts, don't apply here under the tariff. It doesn't apply to tariffs or duties, and that's not typically. That's for Congress. That's what Roberts' reasoning is. Now, Kavanaugh's dissent just basically takes the exact opposite view and says that regulating importation is a very broad thing, and that includes the power to tariff. Okay, so Alan, the president, as you know, uses tariffs to target drug trafficking, resolve global conflicts, and President Trump just said he resolved five out of the eight wars that started using tariffs. So does this ruling change any of that? No, I don't think the ruling will change any of it. It'll change the basis on which Trump predicates his tariffs, and he'll find different statutory authority for it, but he will find a way, as he just announced in the press conference, to seek to impose tariffs against particular countries. What do you think is going to happen on the issue of refunds? President Trump said he may have to be in litigation for five years, but what is your feeling on this? Does he have to refund those tariffs? Well, of course, it's going to end up in litigation. All these things end up in litigation, and of course, when he resorts to these other forms of statutory authority, whether it's under the Trade Act, whether it's some other form of authority, these are all going to get challenged, and they're all going to go to the court. So we'll have to wait and see. I don't have a crystal ball. I've got a nice snow globe behind me, but I don't have a crystal ball. So I can't predict exactly how this will play out, but I can guarantee we will see more lawsuits. Okay, something else maybe you can explain for us. The president called the ruling ridiculous, saying he can destroy trade, essentially, using IEPA, but he can't charge a little fee. He can license, but he can't charge a fee. Explain that for us. Yeah, well, so I mean, again, what this opinion is trying to do is it's saying that the president can regulate importation during national emergencies, but those words don't include the power to tariff. So what the president is suggesting is that this is a big slap on his power as executive of the United States, and as Kavanaugh pointed out, this power does belong to the executive branch. There's no clear basis for undermining the presidential power here under the plain language of the Constitution. You have Roberts, Gorsuch, and Barrett trying to pull in this non-delegation doctrine, and what I think they're trying to do, because the non-delegation doctrine is actually really popular among conservatives, and that basically says if you've got this executive agency making a big, important decision that affects just tons of people, it costs lots of money, then Congress has to clearly state that an executive agency has that power, and by analogy, that includes the executive in this case, and it says here Congress did not clearly give that authority, so the agency can't just assume it has it. In this case, the president just can't assume it has it. I think the reason you have Roberts, Gorsuch, and Barrett resorting to this line of reasoning is because in other contexts, it's actually quite popular among conservatives. It's been a way that conservatives have looked to curtail the administrative state. Okay, Alan, just one final question. I'm wondering, can you compare and contrast for us some of the other alternatives to IEFA? What are the other pathways to tariffs? Yeah, well, there are many different bases under the Trade Act. There are several different provisions. I'd have to go and look and read them myself. I've had, what, two hours to read a 170-page opinion, and so I'd have to go through those different bases myself and see what they are and figure out what legal arguments to make, but I know that the president's staff and that his lawyers have been looking into it. They've been prepared for this particular decision, so I would expect they already have a particular framework they're working with, a particular paradigm that they're focusing on, and they're going to be ready to pull the trigger on tariffs as soon as possible. All right. Sounds good, Alan. Thank you for speaking with us today. Thank you.