CRS Report Says Several Statutes Give White House Tariff Flexibility
While the president doesn’t have express constitutional authority to modify tariffs, several congressionally approved statutes give the White House authority to change tariffs based on a findings that other countries’ exports to the U.S. pose a threat, according to a recently released Congressional Research Service (CRS) report (here). But such delegations of power usually accompany clearly defined conditions and often include time restrictions, the report said.
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Provisions of the Trading with the Enemy Act of 1917, the Tariff Act of 1930, the Trade Expansion Act of 1962, the Trade Act of 1974, the International Emergency Economic Powers Act of 1977, the NAFTA Implementation Act, the Uruguay Round Agreements Act, CAFTA-DR-implementing legislation, and the 2015 Trade Promotion Authority legislation give the president limited tariff proclamation authority, according to the report. Ever since President-elect Donald Trump threatened to raise tariffs on China and certain imports from Mexico during his campaign, trade analysts have debated the authority he would have to unilaterally implement such changes (see 1611150035).
Actions taken pursuant to congressionally delegated presidential trade powers can be challenged in court. Legal issues commonly emerge from these challenges, such as the constitutionality of Congress’ delegation of authority, whether a president’s course of action falls within the scope of delegated powers, and whether the president’s actions are reasonably related to the power delegated, the CRS said. A challenge to a trade-related presidential proclamation “may need to be filed at a specific court like the” Court of International Trade, based on precedent from a 1980 case brought after a presidential proclamation imposed a 10 percent surcharge duty on “certain imported merchandise” pursuant to a declared national emergency. A district court and the U.S. Court of Appeals for the 9th Circuit dismissed the case, ruling that it fell in the jurisdiction of CIT’s predecessor, the U.S. Court of Customs and Patent Appeals. Today, challenges to presidential proclamations involving tariffs and other trade issues are filed at CIT, with appeals going to the U.S. Court of Appeals for the Federal Circuit, the CRS report said.
But CIT declined to exercise its jurisdiction over challenges to presidential proclamations in a 2010 case brought by Michael Simon Design under the Administrative Procedure Act (APA) that disputed a presidential proclamation pursuant to the Omnibus Trade and Competitiveness Act of 1988 that implemented International Trade Commission recommendations for Harmonized Tariff Schedule modifications. CIT held that, because ITC’s recommendations weren’t final agency action for APA purposes, but were “merely advisory in nature,” the final action was the presidential proclamation itself, which isn’t subject to APA review since the president isn’t an agency whose actions constitute agency action. The Federal Circuit affirmed this outcome, the CRS report said.