In Washington today, the word “emergency” is a magic key; it unlocks powers Congress never granted, suspends the discipline of regular order and decorates bloated bills with provisions too dubious to pass on their own. What was once meant to be a narrow exception for genuine crises has become a routine pretext for government overreach—a means of inflating executive power and corroding the nation’s fiscal credibility.
Start with the most brazen claim, and one soon to be scrutinized by the Supreme Court: that a president may impose sweeping tariffs under the International Emergency Economic Powers Act (IEEPA) merely by declaring that a half-century of trade deficits constitutes an emergency.
Tariffs are taxes paid by Americans, and the Constitution assigns the power to tax to Congress. Yet the Trump administration argues that the president’s tariff power is beyond reproach because only he is the designator of emergencies.
The Washington Post‘s George Will summarized the stakes crisply: a statute being read as a roving license to restructure the economy and give the president “unreviewable power to impose taxes … of whatever amount, and for as long as he chooses.” Amicus briefs from across the political spectrum press the simple point that the IEEPA doesn’t authorize this, and an emergency cannot be a long-running condition that has coincided with rising American prosperity.
Derek Scissors wisely warn that emergency powers be kept in tight check. A slice:
Conservatives can well see how bad the consequences are when government overreach is not reined in, when emergencies are allowed to last as long as a President says.
“Could the President impose a 50-percent tariff on gas-powered cars and auto parts to deal with the unusual and extraordinary threat from abroad of climate change?” Justice Neil Gorsuch asked. “It’s very likely that that could be done, very likely,” Mr. [Solicitor General John] Sauer replied.
There you have it: The Trump team believes courts couldn’t stop a future Democratic President from invoking a climate emergency to impose tariffs or do virtually anything else.
Some of the conservative Justices may be reluctant to defy Mr. Trump on his beloved tariffs, but Mr. Sauer’s answer makes clear this case isn’t about one President. It’s a case for the ages. It’s also about the credibility of this Court’s conservative majority, and the consistency of its rulings on major questions, fealty to statutory language, and whether a President can claim the taxing power as his own. A 9-0 ruling would be right on the law and enhance the luster of the Court.
During oral arguments before the Supreme Court on Wednesday, Solicitor General D. John Sauer asked the justices to believe things that just aren’t so. He insisted again and again that the government, in imposing tariffs under International Economic Emergency Powers Act, is not asserting a power to tax.
But no such distinction exists between taxes and tariffs. They are taxes on imported goods. Fortunately, most of the justices seem to agree.
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One can agree or disagree on whether the tariffs are a good idea while still acknowledging that they are taxes, and that the administration is using them for fiscal policy purposes. So long as they are, the Constitution is clear on where the power lies to impose them: Article I, the legislative branch.
The Founders intended this. They believed taxation is one of the most coercive powers of government, and that it should not be undertaken without deliberation among the people’s elected representatives.
The importance of that design became apparent as Justice Neil M. Gorsuch questioned Sauer. Under the government’s logic, Gorsuch postulated, a future administration could declare an emergency for climate change and then impose taxes to address that emergency. Sauer conceded that it probably could.
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