What is law and what is lawlessness?
The U.S. Court of Appeals for the Federal Circuit in Washington, D.C. has just ruled that Donald Trump’s tariffs are illegal, that he had no authority under the U.S. Constitution to impose those taxes on the American people.
Let’s start thinking about his lawlessness with a famous narrative of injustice from Lewis Carroll’s Alice in Wonderland:
A large rose‑tree stood near the entrance of the garden: the roses growing on it were white, but there were three gardeners at it, busily painting them red. Alice thought this a very curious thing, and she went nearer to watch them…
Five and Seven said nothing, but looked at Two. Two began, in a low voice, “Why, the fact is, you see, Miss, this here ought to have been a red rose tree, and we put a white one by mistake; and, if the Queen was to find it out, we should all have our heads cut off, you know. So, you see, Miss, we’re doing our best, afore she comes, to — ” At this moment, Five, who had been anxiously looking across the garden, called out, “The Queen! The Queen!, and the three gardeners instantly threw themselves flat upon their faces. …
“And who are these?” said the Queen, pointing to the three gardeners who were lying round the rose-tree; for, you see, as they were lying on their faces, and the pattern on their backs was the same as the rest of the pack, she could not tell whether they were gardeners, or soldiers, or courtiers, or three of her own children.
“How should I know?” said Alice, surprised at her own courage. “It’s no business of mine.”
The Queen turned crimson with fury, and, after glaring at her for a moment like a wild beast, screamed “Off with her head! Off—”
“Nonsense!” said Alice, very loudly and decidedly, and the Queen was silent.
The King laid his hand upon her arm, and timidly said, “Consider, my dear: she is only a child!”
The Queen turned angrily away from him, and said to the Knave, “Turn them over!”
The Knave did so, very carefully, with one foot.
“Get up!” said the Queen, in a shrill, loud voice, and the three gardeners instantly jumped up, and began bowing to the King, the Queen, the royal children, and everybody else.
“Leave off that!” screamed the Queen. “You make me giddy.” And then, turning to the rose-tree, she went on, “What have you been doing here?”
“May it please your Majesty,” said Two, in a very humble tone, going down on one knee as he spoke, “we were trying—”
“I see!” said the Queen, who had meanwhile been examining the roses. “Off with their heads!” and the procession moved on, three of the soldiers remaining behind to execute the unfortunate gardeners, who ran to Alice for protection.
“You shan’t be beheaded!” said Alice, and she put them into a large flower-pot that stood near. The three soldiers wandered about for a minute or two, looking for them, and then quietly marched off after the others.
“Are their heads off?” shouted the Queen.
“Their heads are gone, if it please your Majesty!” the soldiers shouted in reply.
But in the question of Tariffs, unlike the Queen of Hearts, what Donald Trump says in not law.
The opinion of the court on whether or not President Trump had authority to impose tariffs turned on the definition of words. Laws consist of words, nearly always written words. To know the law, we must know the meaning of words.
A very early example of written law is the Code of King Hammurabi, 1750 BCE, with words carved in stone and placed in public so that his subjects would know what laws they had to obey. You can see one surviving example of such public law in the Louvre Museum:
In ancient China, the
Zuo Zhuan history records a telling incident about the introduction of written law. The prime minister of Zheng, Zichan, had criminal punishments written on the surface of cast bronze tripods placed in public for the people to read. A moralistic scholar chastised him, saying: “When people know what the exact laws are, they do not stand in awe of their superiors. They will come to have a contentious spirit and make their appeal to the express words. They can no longer be managed. … When once the people know the grounds for contention, they will cast propriety away and make their appeal to your descriptions. They will all be contending about a matter as small as the point of an awl or a knife. Disorderly litigations will multiply and bribes will walk abroad.”
Zichan replied: “As to what you say, I have not the talents nor the ability to act for posterity. My object is to save the present age.”
But how can any court know what the words of the law mean?
Again, we can turn to Lewis Carroll to illuminate the question more pointedly, this time from his fable, Through the Looking Glass:
“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean — neither more nor less.”
“The question is,” said Alice, “whether you can make words mean so many different things.”
“The question is,” said Humpty Dumpty, “which is to be master — that’s all.”
So, the question of whether or not Donald Trump has personal power – arbitrary discretion – to impose taxes on the American people when they buy goods from foreign countries depends on whether he is or is not master of defining the word “regulate,” as used in a statute adopted by the Congress.
If he is master, he is lawless, for one – like the Queen in Alice in Wonderland or Humpty Dumpty in Through the Looking Glass – who can define, at whim, the laws which he or she will obey is “out-side” the law, an “out-law.”
But statutes are interpreted by courts, not by presidents who, under the Constitution, have no judicial authority.
So, if the federal courts are master in defining the word regulate, then Trump is not a master, but must follow the law, as others define it to be. As such a follower, he would then be lawful in his decision-making.
In defining the meaning of “regulate,” as included in the International Emergency Economic Powers Act (IEEPA), 50 U.S.C. § 1701, the Court of Appeals for the Federal Circuit wrote: “This case involves the extent of the President’s authority under IEEPA to “regulate” importation in response to a national emergency declared by the President.”
The court built a rational argument on how to understand the meaning of the word “regulate” as follows:
Since taking office, President Donald J. Trump has declared several national emergencies. In response to these declared emergencies, the President has departed from the established tariff schedules and imposed varying tariffs of unlimited duration on imports of nearly all goods from nearly every country with which the United States conducts trade. This appeal concerns Five Executive Orders imposing duties on foreign trading partners to address these emergencies: Executive Orders Nos. 14193, 14194, 14195, 14257 and 14266 … In imposing the … Tariffs, the President again invoked his claimed authority under IEEPA;
Before we reach the merits of this case, we briefly discuss the history and legal authority concerning the imposition of tariffs as relevant to this appeal. The Constitution grants Congress the power to “lay and collect Taxes, Duties, Imposts and Excises” and to “regulate Commerce with foreign Nations.” U.S. Const. art. I, § 8, cl. 1, 3. Tariffs are a tax and the Framers of the Constitution expressly contemplated the exclusive grant of taxing power to the legislative branch; …
For much of this early history, Congress set tariffs without authorizing the President to adjust tariff rates by entering into international agreements. In the late nineteenth and early twentieth centuries, Congress began to delegate to the Executive limited authority to “activate or suspend” tariff rates through international agreements. …
In 1976, Congress … enacted the National Emergencies Act (NEA). The NEA limited presidential power … and placed new restrictions on the declaration and termination of future national emergencies. [the] IEEPA is the result of this legislative effort and is consistent with Congress’s stated goal “to revise and delimit the President’s authority to regulate international economic transactions during wars or national emergencies.” …
IEEPA provides that, after declaring a national emergency pursuant to the NEA, the President may “investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit, any . . . importation or exportation of . . . any property in which any foreign country or a national thereof has any interest.” … Notably, IEEPA does not use the words “tariffs” or “duties,” nor any similar terms like “customs,” “taxes,” or “imposts.” IEEPA also does not have a residual clause granting the President powers beyond those which are explicitly listed. …
Notably, every Congressional delegation to the President of the core legislative power to impose tariffs includes well-defined procedural and substantive limitations. …
We are not addressing whether the President’s actions should have been taken as a matter of policy. Nor are we deciding whether IEEPA authorizes any tariffs at all. Rather, the only issue we resolve on appeal is whether the … Tariffs imposed by the Challenged Executive Orders are authorized by IEEPA. We conclude they are not. …
Upon the declaration of such an emergency, IEEPA authorizes the President to: investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest by any person, or with respect to any property, subject to the jurisdiction of the United States. …
The statute bestows significant authority on the President to undertake a number of actions in response to a declared national emergency, but none of these actions explicitly include the power to impose tariffs, duties, … The [Trump Administration] locates that authority within the term “regulate . . . importation,” but it is far from plain that “regulate . . . importation,” in this context, includes the power to impose the tariffs at issue in this case.…
Notably, when drafting IEEPA, Congress did not use the term “tariff” or any of its synonyms, like “duty” or “tax.” There are numerous statutes that do delegate to the President the power to impose tariffs; in each of these statutes that we have identified, Congress has used clear and precise terms to delegate tariff power, reciting the term “duties” or one of its synonyms. In contrast, none of these statutes uses the broad term “regulate” without also separately and explicitly granting the President the authority to impose tariffs. The absence of any such tariff language in IEEPA contrasts with statutes where Congress has affirmatively granted such power and included clear limits on that power. …
It seems unlikely that Congress intended, in enacting IEEPA, to depart from its past practice and grant the President unlimited authority to impose tariffs. The statute neither mentions tariffs (or any of its synonyms) nor has procedural safeguards that contain clear limits on the President’s power to impose tariffs. …
Taken together, these other statutes indicate that whenever Congress intends to delegate to the President the authority to impose tariffs, it does so explicitly, either by using unequivocal terms like tariff and duty, or via an overall structure which makes clear that Congress is referring to tariffs. This is no surprise, as the core Congressional power to impose taxes such as tariffs is vested exclusively in the legislative branch by the Constitution; when Congress delegates this power in the first instance, it does so clearly and unambiguously. …
Contrary to the [Trump Administration]’s assertion, the mere authorization to “regulate” does not in and of itself imply the authority to impose tariffs. The power to “regulate” has long been understood to be distinct from the power to “tax.” …
the Government has not pointed to any statute or judicial decision that has construed the power to regulate as including the authority to impose tariffs without the statute also including a specific provision in the statute authorizing tariffs. …
Since IEEPA was promulgated almost fifty years ago, past presidents have invoked IEEPA frequently. But not once before has a President asserted his authority under IEEPA to impose tariffs on imports or adjust the rates thereof. Rather, presidents have typically invoked IEEPA to restrict financial transactions with specific countries or entities that the President has determined pose an acute threat to the country’s interests. …where IEEPA has been invoked, presidents did so to freeze assets, block financial transfers, place embargoes or impose targeted sanctions on hostile regimes and individuals. …
The Executive’s use of tariffs qualifies as a decision of vast economic and political significance, so the Government must “point to clear congressional authorization” for its interpretation of IEEPA. …
For the reasons discussed above, we discern no clear congressional authorization by IEEPA for tariffs of the magnitude of the … Tariffs. Reading the phrase “regulate . . . importation” to include imposing these tariffs is “a wafer-thin reed on which to rest such sweeping power.” …
We are unpersuaded by the Government’s argument that it is “particularly inappropriate to construe narrowly a delegation of power in the arena of foreign affairs and national security.” While the President of course has independent constitutional authority in these spheres, the power of the purse (including the power to tax) belongs to Congress. It is essential the congressional role in foreign affairs be understood and respected. . . . The Executive is not free from the ordinary controls and checks of Congress merely because foreign affairs are at issue.” …
Given these considerations, we conclude Congress, in enacting IEEPA, did not give the President wide-ranging authority to impose tariffs of the nature of the Trafficking and Reciprocal Tariffs simply by the use of the term “regulate . . . importation.”
With no cogency did President Trump reply to this reasoned decision of the Court of Appeals for the Federal Circuit:
