by Dave Akers, IHSA

A federal appeals court ruling that said the President does not have authority to impose broad tariffs, has introduced significant uncertainty into the U.S. tariff landscape.

“Inflation is the one form of taxation that can be imposed without legislation.”
– Milton Friedman

Here’s a breakdown of the current situation and its impact on the global economy:

The legal community, along with importers and exporters, is closely monitoring the U.S. Supreme Court’s review of lower court rulings on the President’s authority to impose broad tariffs using emergency powers. This highly anticipated case, which could have significant consequences for global trade, has been expedited by the Supreme Court with oral arguments scheduled for early November.

The Core Legal Debate
The central question before the Court is whether the International Emergency Economic Powers Act (IEEPA) of 1977 grants the President the authority to impose sweeping tariffs.

• The Administration’s Argument: The administration’s legal team contends that the power to “regulate” imports under a national emergency, as provided by IEEPA, is a broad authority that includes the imposition of tariffs. They argue that a strict interpretation of the statute would hinder the President’s ability to respond decisively to threats to the national economy or security.

• The Lower Courts’ Rulings: Both the U.S. Court of International Trade and the U.S. Court of Appeals for the Federal Circuit have ruled against the administration. They argue that the Constitution reserves the power to levy tariffs for Congress, and while Congress can delegate that authority, it must do so with clear and explicit language. The lower courts noted that IEEPA mentions “regulating” but does not explicitly use the words “tariffs,” “duties,” or “taxes.”

Key Factors Influencing the Supreme Court’s Decision
Several legal principles and factors will likely weigh on the Supreme Court’s decision:

• The “Major Questions” Doctrine: This principle holds that agencies—and, by extension, the President—cannot make decisions of vast economic or political significance without clear and explicit authorization from Congress. The lower courts have already applied this doctrine, arguing that the massive economic impact of the tariffs makes them a “major question” that requires congressional approval. The Court’s recent use of this doctrine in other cases suggests it will be a significant challenge for the administration’s argument.

• Constitutional Authority and Delegation: The case hinges on the constitutional separation of powers. The Court must determine whether Congress, by not explicitly mentioning tariffs in IEEPA, intended to withhold that authority from the President.

• Deference to the Executive Branch: The Supreme Court has historically shown some deference to the President on matters of national security and foreign affairs. The administration is likely to lean on this precedent, arguing that the tariffs are a crucial tool of diplomacy and national security. This could be a counterweight to the “major questions” doctrine, and the Court’s conservative majority may be receptive to a strong assertion of executive authority in these areas.

Impact on Business and Trade
The legal and political uncertainty surrounding the tariffs is already having a profound effect on businesses and supply chains.

• Business Planning: Companies are delaying major investments and hiring decisions due to the unpredictable trade environment. The lack of clarity on future costs makes it difficult to plan long-term.

• Inventory Strategies: The uncertainty has led to a shift away from “just-in-time” (JIT) inventory models toward a “just-in-case” approach, where companies stockpile raw materials and finished goods to hedge against potential price increases or supply disruptions. This requires more capital and storage space.

Potential Financial and Legal Repercussions of a Ruling Against the Administration
If the Supreme Court upholds the lower court rulings, it could have significant consequences, including:

• Tariff Refunds: The U.S. government could be forced to refund billions of dollars in collected duties. However, this process would be complex. Refunds would likely go to the “importer of record” who originally paid the tariffs to U.S. Customs and Border Protection, not necessarily the final consumer. The process may not be automatic, potentially requiring companies to file formal protests or even individual lawsuits.

• No Remedy for Failed Businesses: There is no legal precedent for the government to compensate companies for lost revenue or for having to close down as a result of a policy later found to be illegal. Proving that the tariffs were the sole cause of a business’s failure would be incredibly difficult.

Alternative Presidential Authority for Tariffs
If the Supreme Court rules that IEEPA does not grant the President the authority to impose these tariffs, the President would likely need to rely on other statutes passed by Congress to justify such actions. These include:

• Section 232 of the Trade Expansion Act of 1962: Allows tariffs on imports that threaten national security.

• Section 301 of the Trade Act of 1974: Authorizes action against a foreign country’s unfair trade practices.

• Section 201 of the Trade Act of 1974: Allows temporary tariffs to protect a domestic industry from a surge in imports.

These statutes, unlike a broad interpretation of IEEPA, provide more specific criteria and constraints for imposing tariffs, which would limit the speed and scope of a president’s actions.

The legal and economic implications of this Supreme Court case are far-reaching. Even if the Court sides with the lower courts, this complex issue could drag on. Your shipper’s association will continue to monitor developments.