Card players recognize the signs of a “tell,” a player’s demeanor that telegraphs intent for the next hand. Just before Christmas, the Supreme Court in Trump v. Illinois made a procedural ruling that prevented the Trump administration from deploying Illinois National Guard troops in Chicago. Could this decision signal that the Court may rule against the administration in the Trump tariff cases?
The stay blocking deployment of troops in Chicago was upheld by a 6-3 vote. It centered on interpreting 10 U.S.C. §12406(3)—a statute the administration invoked to federalize (activate) the National Guard to enforce federal law. The Supreme Court concluded that the government had not shown that this statute authorized the president to deploy the Guard in Chicago. It cited the statutory requirement that that the president first be “unable with the regular forces to execute the laws”—a condition it found was not met or shown. The Court’s majority (Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch dissenting) defined “regular forces” as the regular US military. Federal troops generally cannot be used for domestic law enforcement unless explicitly authorized by Congress (e.g., the Insurrection Act, pointing to limits under the Posse Comitatus Act). The Court found that there was no showing that “regular forces” could not execute the laws and that the legal conditions for military use had not been fulfilled.
The president’s use of “reciprocal” tariffs on imports of almost everything from everywhere, first announced on April 2 under the International Emergency Economic Powers Act (IEEPA), would seem to be as remote a fact pattern that could be imagined from the issues in the Illinois Guard case. But there are a few striking parallels in the two sets of facts and perhaps some similarities in the reasoning. In both cases the president is claiming powers without limit, powers that intrude on the domains of other parts of the American government. Both cases involve the separation of powers—in the Guard case, it is the vertical separation between the states and the federal government. In the tariffs case, it is the potential trespass on the powers of the Congress.
Here is a breakdown of the similarities in the legal considerations before the Court.
Intrusion on powers entrusted by the Constitution to other parts of the government
Although not unknown—for example, in civil rights cases—federalizing a state’s guard over the governor’s objection is one of the most intrusive actions the federal government can take against a state. Illinois argues that accepting the government’s position for federalizing the Guard would allow the president to regularly commandeer state military forces for routine crime control even when state authorities were functioning and opposed the action. This would dramatically weaken the balance struck between federal and states’ police powers. There would be no limits. See brief of the State of Illinois.
Similarly, by declaring an emergency under IEEPA, any time that the president wishes to apply a tariff, he could do so when conducting normal commercial relations with other countries. In the tariffs case, it is the president assuming powers clearly assigned by the Constitution to the Congress. The president’s “emergency” power to deploy tariffs would have no effective limits, as only a vote in both Houses by a two-thirds supermajority could assure the end of an emergency and the removal of the tariffs the president declared. See V.O.S. Selections v. Trump and the oral argument at the Supreme Court on the cases.
Stretching statutory authority beyond its text
10 U.S.C. §12406 allows federalization of the Guard in limited circumstances. Detaching the statute from its preconditions, especially the requirement that the president be “unable with the regular forces to execute the laws,” would convert an exceptional power into a general domestic policing authority. In other words, the statute was being read as: “If the president thinks it useful, he may federalize the guard.” Congress did not write §12406 that broadly.
IEEPA, a sanctions statute, does not even include tariffs in its list of means to be used. It refers to unusual circumstances of a foreign threat that constitutes an emergency. Trade deficits are neither unusual nor clearly an emergency. Tariffs might be used to enforce a trade sanction but not converted into a general domestic revenue raising or even retaliatory authority.
Bypassing existing authority
When presidents deploy military force domestically, they rely on the Insurrection Act, which has explicit triggers (e.g., insurrection, obstruction of federal law, deprivation of constitutional rights). The Act carries political and legal accountability and has a well-understood history of precedents. It has been used in limited circumstances to maintain order in Little Rock, AR, when ending segregation in the public schools in the 1950s, for example, and in the face of widespread riots.
The reciprocal tariffs are an end-run around Congress’s chosen framework. The Congress provided authority to deal with balance of payments emergencies (limited to a 15 percent tariff and 150 days duration). There are separate authorities to deal with threats to national security (Section 232 of the Trade Expansion Act of 1962) and to retaliate against foreign unfair trade practices (Section 301 of the Trade Act of 1974). During most of the last 90 years, there has been delegated trade agreement authority to modify tariffs. That authority expired during the presidency of Joseph R. Biden Jr.
Expansion of presidential powers
What would come next if the Court approved the government’s theory in upholding deployment of the Guard? Could the Guard be federalized for fighting crime, enforcing immigration or other laws, or dealing with political unrest generally? Could a standing alternative police force be created? Could invoking emergency powers be normalized if this deployment of the Guard was normalized?
Similarly, if the Court upholds the tariffs, what constraints exist on the president’s future use of the power to tax trade if the “reciprocal” tariffs he imposed are allowed to stand?
Conclusion: Proportionality
The Roberts Court has been very favorable to the executive branch, including allowing Immigration and Customs Enforcement (ICE) broad scope to enforce immigration laws, in granting the president immunity from criminal acts when conducting the business of government, and in a host of other ways. This deference may be under reconsideration, given the latest ruling in the Illinois Guard case. The stay on the Guard may be a harbinger of a shift of attitude for a new majority of the court. Although the executive has been given extensive support from the Court to act as it wishes, there are still and ought to be constitutional limits. The Illinois decision may be instructive: The reasoning it applied is a strong mandate for returning the Constitution to its place in ensuring balance among co-equal branches of the legislative and the executive, with the Court sitting as the arbiter that the respective roles will be respected.
One of the most important powers the Constitution grants to Congress is the power to impose tariffs, the power to tax. The entire structure of government, the system of checks and balances among the branches, can readily be undermined if the president is allowed to exercise unrestricted power to raise revenue through imposing tariffs.
In both the Illinois Guard case and the “reciprocal tariff” case, the question of proportionality arises. Is the threat clearly of so great a magnitude—whether civil unrest in the former case, or external threats of economic harm in the latter—that sweeping powers should be assumed as intentionally granted to the executive by the Congress? The cases could not be superficially more disparate but raise a similar question. How much authority is acceptable to be transferred from other parts of the nation’s governance to the executive?
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