CONSTITUTIONAL INTERPRETATIONS

In the arguments before the United States Supreme Court last Wednesday, counsel for President Trump defended the tariffs the President imposed under the International Emergency Economic Powers Act  (the IEEPA) on the ground that statute did authorize the Presidential imposition of tariffs whenever a ‘‘national emergency’’ is declared by the President himself. (Citing 50 U.S.C. §§1701 et. seq. which do not speak of “tariffs,” “duties,” or “taxes.”) If we assume that the President’s argument is valid, the IEEPA itself, as construed by President Trump, should be declared unconstitutional. The United States Constitution clearly reserves both the taxing power and the regulatory power of the federal government to the United States Congress, not the President. See U.S. Const., Art. I, §8; see also U.S. Const., Art. II (defining the President’s powers).

To be sure, the Constitution does empower Congress to assign certain tasks to others that it could perform by itself, but only when that assignment is “necessary and proper.” See U.S. Const., Art I, §8. More specifically, the final clause of Article I, Section 8 reads as follows:  

The Congress shall have Power . . . To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers  and all other Powers vested by this Constitution in the Government of the United States. or in any Department or Officer thereof.

The Supreme Court has long ago explained the meaning of that clause. According to the Court:

Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.

McCulloch v. Maryland, 17 U.S. Reports 316, 421 (1819).

The “end” or purpose of the IEEPA to protect the United States from threats that emanate from abroad and that also warrant immediate attention from the federal government, is certainly “legitimate.” However, the “means” by which that threat is to be met in this particular case consists of an order by the same President who has unilaterally declared the “emergency” and who has unilaterally dictated what  he intends to do about it, all by himself. All the while both Congress and the federal courts are in session and capable of exercising their powers right across the street. The “means” chosen by President Trump to protect America are plainly repugnant to the common theme of the three Division of Powers Clauses in the United States Constitution. See U.S. Const., Art. I, §1; Art. II, §1; and Art. III, §1. The IEEPA, as construed and applied by President Trump, is clearly inconsistent with both the letter and the spirit of the United States Constitution. In my opinion, the Supreme Court should immediately put an end to President Trump’s raw usurpation of power that rightfully belongs to other branches of the federal government.  

/s/ Dan D. Rhea