UPDATE: Trump Doubles Down On Tariffs
Trump Announces 50% Tariffs On Foreign Steel And Aluminum
UPDATE: June 2, 2025
In a February 11, 2025 Executive Order, President Trump announced a 25% tariff on imports of foreign steel and aluminum. On Friday, May 30, he announced that figure would double to 50%.
One might reasonably ask, “how can he do that? Didn’t a federal court just rule (below) that Trump’s tariff orders “exceed any authority granted to the president . . . to regulate importation by means of tariffs?”
Excellent question, dear reader. You are quite correct.
The reason that the steel and aluminum tariffs have not been already ruled void due to lack of executive authority to impose tariffs (separation of powers, James Madison, Federalist 51 in the original post below) is because the Court of International Trade’s ruling dealt with the president’s emergency powers pursuant to the 1977 International Economic Emergency Powers Act (IEEPA).
The 50% tariffs on foreign steel and aluminum are imposed pursuant to a similar but distinct emergency authority to regulate trade, Section 232 of the Trade Expansion Act of 1962.
That law, signed by President John F. Kennedy in 1962, allows the President to impose restrictions on goods imports or enter into negotiations with trading partners if the U.S. Secretary of Commerce determines, following an investigation, that the quantity or other circumstance of those imports "threaten to impair" U.S. national security.
As of this writing there is no record of the Commerce Secretary Howard Lutnick making such a formal finding, but given his comments on Fox News yesterday such a formal determination is clearly coming. Lutnick said:
Rest assured, tariffs are not going away, [the president possesses] so many other authorities that if the court ultimately sides against the White House, Mr. Trump can still bring on another or another or another.
The Section 232 Tariffs will be challenged, most likely in the Court of International Trade as the IEEPA tariffs were.
That said, the steel and aluminum tariffs are more legally defensible for the Trump Administration.
The February 11, 2025 Executive Order reads, part:
Copper, scrap copper, and copper’s derivative products play a vital role in defense applications, infrastructure, and emerging technologies, including clean energy, electric vehicles, and advanced electronics. The United States faces significant vulnerabilities in the copper supply chain, with increasing reliance on foreign sources for mined, smelted, and refined copper.
Trump is not wrong. Reliance on foreign sources of copper and other critical goods has been growing for decades and calling that reliance a “national security threat” is not unreasonable.
Watch this space.
UPDATE May 30, 2025
Within hours of the Court of International Trade’s ruling striking down Trump’s tariffs as enacted without authority, the Trump Administration recieved a stay of enforcement.
The intermediate appellate court, the United States Court of Appeals for the Federal Circuit (above), granted the stay while it deliberates the legal merits of granting a permanent stay of enforcement of the Court of International Trade’s order to remove all of Trump’s unilateral tariffs (original post, below).
The Federal Circuit court is one of thirteen intermediate, appellate “circuit” courts that review decisions from the federal district courts. Circuit court decisons may only be overruled by the United States Supreme Court.
The Federal Circuit, like the Court of International Trade, has specialized jurisdiction and generally reviews decisions related to international trade, federal employees, and government contracts.
The Federal Circuit is fast-tracking the stay determination, ordering all briefing be concluded by June 9, 2025. After that, court will order decide whether the stay will continue.
The court is following normal procedure by preserving the status quo while it considers the legal merits of the Court of International Trade’s decision.
Its order granting a brief stay should not be considered a victory on the merits for the Trump Administration.
You can read the Federal Circuit’s brief order here.
Watch this space!
ORIGINAL POST May 29, 2025
Yesterday the Court of International Trade in New York ruled Trump’s tariff declarations illegal. Below are a few key points.
United States Court Of International Trade
First the “Court of International Trade” is a court of special jurisdiction that rules on civil actions arising out of the customs and international trade laws of the United States.
The court made its ruling in response to two cases. One was filed by a group of small businesses, the other was filed by a dozen U.S. states, led by Oregon.
Separation Of Powers
The key issue is the constitutional principle of separation of powers, or “checks and balances” between the three branches. The notion that a structural distribution of powers among the three branches prevents tyranny is a core principle, as explained by James Madison in 1788 (above).
Article I, Section 8, Clause 3 of the Constitution gives Congress, not the Executive, authority to “regulate commerce with foreign nations,” i.e., tariffs.
Trump has justified his unilateral tariff declarations by relying on the authority granted by the 1977 International Economic Emergency Powers Act (IEEPA).
The IEEPA authorizes the president to supplant Congress and “regulate international commerce after declaring a national emergency in response to any unusual and extraordinary threat to the United States which has its source in whole or substantial part outside the United States.”
Two False Claims
On April 2, President Trump declared a national emergency triggering the IEEPA based on two things: the existence of a structural international trade deficit and a false claim that fentanyl trafficking created a public health emergency.
The plaintiffs in the case before the Court of International Trade argued that the IEEPA did not give the president the power to apply tariffs.
Further, the plaintiffs argued that if the Court disagreed and held that the IEEPA did in fact grant such powers, the trade deficit did not qualify as an “unusual and extraordinary threat” (lawyers call this “arguing in the alternative”).
The Court’s Decision
The Court of International Trade’s 49 page decision issued yesterday, May 28, 2025. The court’s ruling stated that Trump’s tariff orders “exceed any authority granted to the president . . . to regulate importation by means of tariffs.”
The court issued a permanent injunction on all tariffs by the president, meaning that the order preventing tariffs is indefinite. The court gave the Trump Administration ten days to cancel its illegal tariffs.
Trump’s Response
The Trump Administration’s official response is consistent with its fundamental misunderstanding of the core principle of separation of powers. A White House Spokesperson said, “[i]t is not for unelected judges to decide how to properly address a national emergency.”
Trump’s personal response on Truth Social (above) is, of course, insane.
What’s Next
The Court of International Trade’s decision will be appealed to the United States Court of Appeals for the Federal Circuit and then — almost certainly -- the United States Supreme Court.
Watch this space.