Executive Summary
The Story So Far
Why This Matters
Who Thinks What?
President Donald Trump’s use of the International Emergency Economic Powers Act (IEEPA) to impose broad tariffs, citing a national trade deficit emergency, faces a critical challenge at the Supreme Court, with oral arguments scheduled for November 5. Legal scholars and lower courts have widely assumed a historical precedent set by President Richard Nixon’s 1971 import surcharge. However, new analysis by Alan Wm. Wolff, presented in an amicus curiae brief with Ambassador Carla Anderson Hills, suggests Nixon did not invoke emergency sanctions authority but rather trade agreement laws, potentially rendering Trump’s actions legally unprecedented.
Historical Context of Presidential Tariffs
President Trump implemented what he termed “reciprocal tariffs” on a wide array of products from numerous countries, justifying these measures by declaring a national emergency due to the U.S. trade deficit. He cited IEEPA as the legal basis for these tariffs. Lower courts have subsequently ruled against these tariffs, asserting that Congress did not delegate sufficient authority to the president for such actions. These decisions are currently under appeal to the Supreme Court.
Nixon’s 1971 Surcharge Re-examined
A central point of contention in the legal challenge to President Trump’s tariffs is the interpretation of a past presidential action: President Richard Nixon’s 10 percent import surcharge in 1971. This measure, imposed during a balance of payments emergency, has been widely understood by courts and commentators to have been authorized under the Trading with the Enemy Act (TWEA), a statute nearly identical to IEEPA. This historical reading is now being contested.
According to Wolff’s research, which draws on accounts such as William Safire’s memoir, President Nixon explicitly refused to invoke TWEA. During secret deliberations at Camp David in August 1971, Nixon reportedly rejected using TWEA due to its “trading with the enemy” connotation. Instead, he opted to base the surcharge on international trade agreement laws, specifically referencing the General Agreement on Tariffs and Trade (GATT), to address a balance-of-payments emergency.
Further supporting this interpretation, the Nixon administration’s official statement to GATT members in September 1971 clarified its legal rationale. The U.S. delegate cited domestic tariff laws and GATT Article XII, which pertains to balance of payments authority, rather than TWEA or GATT Article XXI, which addresses essential security interests.
Legal Arguments and Supreme Court Implications
The 1975 appellate court ruling in Yoshida International, Inc. v. United States upheld Nixon’s surcharge. However, Wolff argues that this decision incorrectly assumed Nixon had used TWEA, a conclusion that he characterizes as a “post hoc rationalization” by government attorneys that became accepted legal lore. Nixon’s actions, which did not raise tariffs above levels previously set by Congress, were consistent with suspending prior trade proclamations rather than invoking wartime emergency powers under TWEA.
The Yoshida Ruling and its Legacy
The Federal Circuit Court of Appeals extensively referenced the Yoshida decision in its opinion ruling against President Trump’s use of IEEPA. The subsequent enactment of IEEPA in 1977 occurred under the widespread assumption that Yoshida had validated the use of a sanctions statute for imposing blanket tariffs. This historical context suggests that Congress may have legislated IEEPA with a flawed understanding of the actual legal basis for Nixon’s 1971 tariffs.
This re-evaluation of historical legal interpretations suggests that President Trump’s application of IEEPA for universal tariffs lacks a direct legal precedent, challenging a long-held understanding of presidential emergency powers in trade. The Supreme Court’s upcoming deliberations are expected to critically examine these historical nuances as it considers the legality of the current administration’s trade actions.
