Thoughts On The Delayed SCOTUS Ruling On Trump’s Tariffs – OpEd

Since everyone seems to be weighing in on why the Supreme Court is waiting so long to issue its ruling on the legality of Donald Trump’s tariffs I might as well throw in my decidedly non-expert opinion. FWIW, the near unanimous consensus among court watchers seems to be that the Court will rule against Trump, with most of the Republican justices likely going against him. 

I suppose there is a question about negotiations among the justices on wording to pull together the largest possible majority. But there is another obvious issue, which I at least have not seen addressed.

It is a virtual certainty that immediately after the Court issues a ruling striking down these tariffs, Trump will rush back with new tariffs based on different legislative grants of authority. Undoubtedly these tariffs will also be the subject of lawsuits. 

SCOTUS would presumably want to give guidance to lower courts on how they should rule on these suits. There are two issues that lower courts will have to wrestle with in these new cases. First, trying to make the correct final determination as to whether the tariff is legal, but more immediately whether the lower court should issue an injunction, preventing the tariff from going into effect. 

The latter is arguably the more important question here. Since the SCOTUS will undoubtedly make the ultimate decision as to whether any subsequent Trump tariffs are legal, the more important issue to be decided by the lower courts is whether the tariffs are allowed to remain in effect through the appeals process. It looks like SCOTUS made the wrong call on this point with the current set of Trump tariffs.

As I understand the law (as very much a non-lawyer) when making the call on a temporary injunction, courts are supposed to consider two issues. First whether the case is likely to ultimately succeed and second, whether there will be greater damage to one party by having the temporary injunction in place than the damage to the other party by not having the injunction in place.

It seems to me that SCOTUS clearly made the wrong call on the first round of Trump tariffs. Since it now seems likely they will rule against Trump, there is not a plausible case that the plaintiffs had little chance of success when they filed their case.

On the second point, since the complications of returning tariff revenue is acknowledged by all sides, it it is difficult to contend that there was less harm caused by leaving the tariffs in place, than telling the Trump administration that it would have to wait for a final ruling before imposing its tariffs. In fact, in addition to the revenue issue, there is also the political problem that Trump will now have to tell Brazil that he really didn’t mean to impose that 50% tariff. The same will be true with all the other countries whose exports were subject to high tariffs. 

With that in mind, it seems that the SCOTUS would want to give clear guidance to lower courts on how they should deal with lawsuits against whatever new tariffs Trump imposes after the first round is struck down. Since the different tariff authorizations apply to different circumstances, the Court could not possibly produce a one-size-fits-all cookbook for addressing new lawsuits. But it could hope to set out some principles that would provide clear guidance to lower courts. This process would require some serious thinking, and even more work to try to produce consensus or at least majority support.       

To be clear, I am neither a lawyer nor a court watcher who has insight into the concerns of the various justices. I also wouldn’t take for granted that this court is acting in good faith. After all, uncovering a secret presidential immunity clause in the Constitution to keep Donald Trump out of jail hardly seems like what you get if you’re just calling balls and strikes. 

But if we do try to think carefully about what is at issue, the solution is not entirely clear even to those of us who might think nixing Trump’s tariffs is a slam dunk. There doesn’t seem much ambiguity in the first clause of the Constitution laying out the powers of Congress: “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises.” 

But if Congress has in fact delegated some emergency powers in this area to the president, drawing the lines does require some thought. Let’s hope the delay in issuing an opinion is due to the Court thinking. 

• This article was published at Dean Baker's Beat the Press column