Trump's Almost Completely Bonkers Reaction to the Tariff Ruling

In less than the 72 hours that have elapsed since the Supreme Court by a 6-3 vote rejected the Trump administration's assertion of authority to impose tariffs under the International Emergency Economic Powers Act (IEEPA) in Learning Resources, Inc. v. Trump, the tariffs conversation has already taken numerous turns.

First came the characteristically unhinged statements by the president himself. Astoundingly, many of the most insane claims appeared to be part of a text from which Trump was reading. He accused the Republican appointees who voted against him (Chief Justice Roberts and Justices Gorsuch and Barrett) of having been "swayed by foreign interests" and acting as "fools and lap dogs for the RINOs." It's by no means the most important point, but it was amusing to hear a president who has discarded decades of Republican orthodoxy on trade (and much else) accusing others of being Republicans in name only. It was further evidence (though none was needed) that for Trump, every accusation is an admission.

Much less amusing than the insults was Trump's statement that, so far as Justices Gorsuch and Barrett are concerned, the ruling is "an embarrassment to their families." Really? Their families? Nobody asked about their families, who are not at all relevant, but in the current environment, that was either a threat of violence or extremely reckless with respect to the risk of violence. In 2022, Congress sensibly (and on a bipartisan basis) passed legislation increasing protection for Justices and their families following the apprehension of an armed man near Justice Kavanaugh's home. But the Justices and their families lack the kind of security detail afforded the president, so their protection is hardly impermeable. If Trump's reference to the Justices' families was meant as a threat, it is a crime, thus raising the macabre question whether denouncing a Supreme Court decision about the scope of a statutory delegation of power to the president counts as a core executive function that entitles him to absolute immunity.

As part of his rant, Trump announced that he was invoking other statutory authority to impose new across-the-board ten percent tariffs, only to say shortly thereafter no, make that fifteen percent! Perhaps it's only a matter of time before we learn that Trump has also imposed a separate batch of double-secret tariffs. That'll show 'em! Meanwhile, the new tariffs are probably illegal also.

I do want to give Trump a tiny bit of credit, however. So far, real-life Trump's reaction to Learning Resources has been slightly less preposterous than the reaction of hypothetical Congress and hypothetical Trump in my constitutional law exam last semester--which, requiring very little in the way of clairvoyance, posed a question based on a scenario much like the one we now face.

I'll also give Trump credit for two actual substantive points he raised in his initial rant. First, he complained that the Court did not provide any remedial guidance. That is indeed a legitimate complaint.

Second, Trump echoed (albeit less coherently) an argument that Justice Kavanaugh (joined by Justices Thomas and Alito) made in Part II(D) of his dissent: IEEPA authorizes the president to impose severe trade restrictions such as embargoes, so it follows that IEEPA allows him to "take the far more modest step of conditioning . . . imports on payment of a tariff or duty." This could be the basis for a coherent argument, but it happens to be wrong.

The fact that the law authorizes powerful step A doesn't necessarily mean that it also authorizes less powerful step B. Here's an obvious example: Congress has the power to declare war. It doesn't follow that Congress has the lesser power to forbid possession of firearms in school zones. The point is so obvious that none of the dissenters in United States v. Lopez (which invalidated the Gun Free School Zones Act as beyond the scope of the powers granted to Congress) even attempted to make the argument that the exclusion of firearms from school zones, because a more modest power than other things Congress can do, is also something Congress can do.

In the foregoing example, however, one might object that the claimed power to regulate firearms near schools would purport to exercise a different power than that of declaring war, whereas Trump and the dissenting Justices were saying that because IEEPA authorizes embargoes, IEEPA also authorizes tariffs. That's a fair objection, but the argument still fails.

Consider criminal penalties. Suppose that state law provides that for various crimes the penalty is a sentence of up to X length and/or a fine of up to $Y, but that for first-degree murder, the penalty is either life imprisonment or execution. Even though death and life imprisonment are much more severe penalties than the payment of a fine, the express provision for fines in other statutes but not in the first-degree murder statute strongly supports the inference that a fine--even of just one dollar (an example Trump repeatedly used in his rant)--is not a permissible penalty.

And that is in fact how criminal penalties work in some states. True, a person who is convicted of a serious crime can usually be ordered to pay restitution to the victims or their families, but that's not a fine paid to the government. And while federal law contains a catchall that allows for fines for crimes that don't specifically provide for a fine so long as they don't specifically forbid such a fine, in the absence of that catchall, presumably federal law would function the same way.

The point here isn't how any particular statutory scheme works. It's that the ability to impose particular severe penalties (such as death or life imprisonment) doesn't necessarily entail the ability to impose the much more modest penalty of a fine. That's ultimately just a point about logic that the Learning Resources dissenters and Trump get wrong.

Of course, where it's unclear whether a statute authorizes the obligation to pay money to the government, one would want to consider, among other things, whether there's a good reason why the legislature would have meant to authorize the stiffer penalty but not the more modest one. In the case of the criminal law, it might be that the notion of a fine for a very serious crime like murder trivializes or commodifies the harm. In the tariff case, the answer is plain enough: tariffs are taxes paid by U.S. importers and passed on to their U.S. customers (despite what a fool believes), and so one oughtn't assume that Congress intended to impose such taxes unless it said so clearly--especially when it did specify tariff authority expressly in other statutes.

Whether that explanation invokes the major questions doctrine (MQD) and what exactly the major questions doctrine is are questions that divided the Justices in the majority. I might have more to say about those questions later in the week. But for now I just want to observe that, regardless of their internal squabbles about the MQD, all six Justices in the Learning Resources majority were right to reject the greater-includes-the-lesser argument made by the dissent and echoed by Trump. 

-- Michael C. Dorf