The U.S. Supreme Court’s decision striking down President Trump’s tariffs under the International Emergency Economic Powers Act is one of the most important rulings in American history. With the court’s ruling, we have dodged an enormous threat to our freedom.
As I wrote in the Union-Tribune last September, the Constitution “clearly vests in Congress the power to set taxes, including tariffs. The power is vested in elected congressional representatives, not with any one person whether that be a king or a president.”
The court’s decision recognized that tariffs are taxes: “Tariffs operate directly on domestic importers to raise revenue for the Treasury and are ‘very clear[ly]’ … a branch of the taxing power.”
The serious danger posed by Trump’s unilateral imposition of tariffs was his reliance on the International Emergency Economic Powers Act. Enacted in 1977, the act legally delegates to a president the power to “regulate” imports when faced with an international emergency.
Trump cited trade deficits and other international issues as emergencies that justify his exercise of a presidential power to regulate imports. And, most significantly, he argued the power to regulate includes the power to impose expansive tariffs without congressional approval.
The Supreme Court rejected that argument, noting the lack of any statute in which Congress used the word “regulate” to authorize taxation. “While taxes may accomplish regulatory means,” the majority opinion explained, “it does not follow that the power to regulate includes the power to tax as a means of regulation.”
With that holding, the court showed the wisdom of separation of powers embedded in our Constitution. Absent the court’s ruling, I pointed out in September the risks we would face.
“The power to regulate must never be interpreted to include the power to tax. Over the years, Congress has delegated to the presidency powers to regulate a wide spectrum of American society. If the power to regulate is deemed to include the power to tax, a new precedent would be created that could become a dagger aimed at the heart of our freedom.
“An unchecked power bestowed on this president will apply to every future president. Under the banner of regulation, a future president might impose without congressional approval income tax surcharges or other taxes to regulate business, commerce, transportation, labor, communications and the environment.
“The list of creative taxation imposed by executive order under the power to regulate could be endless. And the power of Congress, and of the people, would shrink to a whisper.”
Some try to justify Trump’s imposition of broad tariffs through executive orders by arguing the tariffs are effective in raising tax revenue and negotiating trade agreements. Even if the tariffs are effective — which is debatable — these advocates miss the point.
The ends do not justify the means in our system of governance.
Process matters. Due process, equal protection, gun rights, free speech, freedom of religion, voting rights and all other rights are protected by processes. Those processes include checks and balances and separation of powers relied upon in this Supreme Court decision that protected us from taxation without congressional representation.
What makes America great is our unique freedom, which comes from God, not government. Our process-oriented system is designed to protect us from government intrusion on those rights. Once our processes are cracked, we will lose rights.
Executive orders have been used too frequently by this and previous presidents to bypass Congress. That eliminates a process important to our rights and needs to be reined in.
Our founders called our legislative process a “deliberative process.” Its purpose is to ensure that all sides can be heard before decisions are made. The slow pace of congressional action — complete with committee hearings, approval of the Senate and House of Representatives and veto power — is sort of a due process for public policy that helps preserve our rights while carefully considering issues.
Now that the Supreme Court has taken a bold step in striking illegal executive orders imposing taxes, Congress needs to take action to oversee executive orders to ensure they are legal and justified. This is not a partisan issue. It is a constitutional issue that impacts our rights.
Goldsmith is an award-winning Union-Tribune contributing columnist and former Superior Court judge, San Diego city attorney and state legislator.