President Donald Trump is fighting to prove his authority to impose steep tariffs without congressional approval, but one analyst speculated that he wouldn't mind losing the legal battle that's swirling around it.
The U.S. Court of International Trade ruled in May that most of the president's tariffs exceeded his authority and a federal appeals court reached the same conclusion Friday. Now the president is asking the U.S. Supreme Court to take up the case as soon as possible, reported The Guardian.
"This is an issue that really splits the Trump coalition,” Mark Graber, a constitutional law and politics scholar at the University of Maryland, wrote. “If it splits the Trump coalition, it probably splits the Trump coalition on the bench.”
Six of the nine justices on the court are conservatives nominated by Republican presidents, including three by Trump himself, and that supermajority has granted the president 18 straight wins in his requests for emergency relief.
But Graber speculated that four of the conservative justices could be persuaded to rule against the tariffs.
“I think this court would love to have a case where it doesn’t side with the administration,” Graber said. “This strikes me as a perfect case” to push back on the narrative that they're "stooges for Trump."
Trump invoked the 1977 International Emergency Economic Powers Act, or IEEPA, to justify the tariffs, saying they're necessary to stop the shipment of fentanyl into the U.S., but the word "tariff" doesn't actually appear in the law, and Congress has typically been explicit when delegating its authority to impose or change tariffs.
“The whole point of enacting statutes like IEEPA is to give the president broad authority to address emergencies when they arise," wrote Jonathan Adler, a professor at William & Mary Law School, for the Wall Street Journal. “While IEEPA provides that such actions may ‘only be exercised’ to address such declared emergencies ‘and may not be exercised for any other purpose’, courts have rarely felt competent to second-guess the executive branch’s national-security determinations.”
The president's lawyers have argued the tariffs are necessary to preserve the “financial fabric of our country," but Graber questioned whether Trump actually believes that.
“We normally think people litigate to win, but, in fact, quite frequently people litigate to lose,” Graber said. “The point was publicity.”
Trump “will not mind a loss” in this case, Graber argued: “One of the virtues Trump gets by litigating this loser of a case is he can tell everybody: ‘I fought for tariffs, I fought for you, it’s just those elitist judges who stopped me,’” he said. “He gets credit for the tariffs, and he doesn’t get the fallout that tariffs would actually create, because they’re declared illegal.”