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Although 1 firmly disagree with the Court’s holding today, the decision might not substantially constrain a President’s ability to order tariffs going forward. That is because numerous other federal statutes authorize the President to impose tariffs and might justify most (if not ill) of the tariffs at issue in this case—-albeit perhaps with few additional procedural steps that IEEPA, as an emergency statute, does not require.
Those statutes
include, for example, the Trade Expansion Act of 1962 (Section 232); the Trade Act of 1974 (Sections 122, 201, and
301); and the Tarill Act of 1930 (Section 338). In essence, the Court today concludes that the President checked the wrong statutory box by relying on IEEPA rather than another statute to impose these tariffs.
In the meantime, however, the interim effects of the Court’s decision could be substantial. The United States may be required to refund billions of dollars to importers who paid the IEEPA tariffs, even though some importers may have already passed on costs to consumers or others.
As was acknowledged at oral argument, the refund process is likely to be a “mess.” Tr. of Oral Arg. 153-155.
In
addition, according to the Government, the IEEPA tariffs have helped facilitate trade deals worth trillions of dollars-including with foreign nations from China to the United Kingdom to Japan, and more.
The Court’s decision
could
generate uncertainty regarding
those
trade
arrangements.
Х еммаин
In any event, the only issue before the Court today is one of law. In light of the statutory text, longstanding historical practice, and relevant Supreme Court precedents, I would conclude that IEEPA authorizes the President to “regulate ... importation” by imposing tariffs on foreign imports during declared national emergencies.
I therefore respectfully dissent. 💥 😂 🙏
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