COMMENT | Legality of Trump's tariffs being challenged

COMMENT | We may be fully aware that many world-renowned economists have been broadly critical following US President Donald Trump’s recent tariff announcement, warning the taxes could harm both the US and global economies.

Worse - the economists lament - it could potentially trigger a global recession and cost even American families.

Now the legal fraternity in the US has equally entered the fray in totally rejecting Trump’s mind-boggling tariffs.

Many lawyers in the US have argued his justification for the imposition of tariffs - at least on Canada, China, and Mexico under the International Emergency Economic Powers Act (IEEPA) - purportedly based on an “extraordinary threat” from illegal immigration and drug trafficking may be legally flawed.

The lawyers also argued that IEEPA does not explicitly grant tariff authority at all.

Indeed, the words “duty” or “tariff” appear nowhere in the statute, and to the extent that it grants power to restrict imports, it requires that there be a direct connection between the action taken (i.e. broad-based tariffs) and a properly declared national emergency.

They also contended there has been no direct connection between tariffs on imports of all goods - no matter how innocent or far removed from fentanyl - and the declared national emergency.

In addition to that, they also argued that IEEPA has never been used to impose tariffs.

It is not disputed that Congress enacted IEEPA nearly 50 years ago to confer the president the power to act promptly to protect the nation’s security.

Be that as it may, Trump may have mistakenly believed that this delegation, in fact, grants him broad discretion.

The lawyers, however, responded to such a flawed argument by Trump by submitting that even though such a delegation may arguably grant him broad discretion, but such a delegation was never meant to give him carte blanche to do what he pleases on trade policy.

Anyway, the US Constitution only gives Congress the sole power to regulate foreign commerce and impose tariffs.

In fact, such a provision is almost akin to the provision in our Federal Constitution, which explicitly provides that only the Dewan Rakyat (akin to Congress) is given the sole power to regulate foreign commerce and any monetary bills, including the imposition of tariffs.

Be that as it may, the US president’s powers can only come from authority that Congress expressly delegated.

The issue is did Congress clearly intend to hand over its tariff authority to the president or to permit him to exercise it in such a sweeping and procedurally skimpy manner?

The lawyers strenuously argued that the answer is no, especially without establishing a clear relationship to a particular national emergency.

Anyway, the US Supreme Court - in a number of relatively recent cases - has held that for an agency to decide an issue of major national significance, its action must be supported by clear congressional authorisation.

In 2022, for instance, in the case of West Virginia vs EPA, it explicitly referred to this concept, which the court dubbed the major questions doctrine, building on years of understanding that Congress does not delegate sweeping and consequential authority in a “cryptic” fashion.

Reuters reports that the New Civil Liberties Alliance has filed what it said was the first lawsuit seeking to block Trump’s tariffs on Chinese imports, arguing the US president overstepped his authority.

The lawsuit - filed in federal court in Florida - avers that Trump lacked the legal authority to impose the sweeping tariffs unveiled as well as duties authorised on Feb 1 under the International Emergency Economic Powers Act.

MOHAMED HANIPA MAIDIN is a former deputy minister in the Prime Minister’s Department (Legal Affairs).

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.

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