'Sharp' appeals court judges signal Trump may lose key court battle: 'Hard for me to see'
President Donald Trump's government was in court on Thursday to defend his unilateral takeover of U.S. tariffs despite the Constitution allocating the job to Congress.
Writing for Politico, legal reporter Kyle Cheney characterized the judges as asking questions "sharply."
Several times, the judges on the panel questioned how Trump could use the 1977 International Emergency Economic Powers Act, or IEEPA, to justify issuing increased tariffs. In the past, the IEEPA has been used to issue sanctions and other penalties, but it has never been used to justify tariffs.
“IEEPA doesn’t mention the word tariffs anywhere,” Judge Jimmie Reyna pointed out during the hearing.
Similarly, Cheney cited Judge Timothy Dyk, saying “it was hard for me to see” that Congress intended to give the president the authority to rewrite the entire U.S. code when it passed the legislation in 1977.
Justice Department lawyer Brett Shumate said that Trump's use of the tariffs as a bargaining chip was also an important part of his deal-making process. He cited the deal between the U.S. and the European Union as an example.
However, national security expert Marcy Wheeler, who followed the trial, pointed to one female judge expressing her outrage that the attorney general of Oregon didn't find Trump's reasoning that the United States is in an "emergency" at all persuasive.
"They also assume Trump tells the truth in his EO," wrote Wheeler.
Cheney wrote that some of those judges found Trump's claims "legitimate."
Trump signed his first executive order in April, stating that he would impose stiff tariffs on goods from all countries, thereby nullifying trade deals he had approved during his first term. He set a 90-day deadline, claiming that he would make 90 deals in that time. He reached two. Trump then pushed off the deadline to Aug. 1. He announced Thursday that Mexico's tariffs will also now be delayed while negotiations are ongoing. Since the announcement in April, however, a 10% tax has been imposed on all foreign goods.
"Trump’s justification for the emergency tariffs is the nation’s longstanding and persistent trade deficits with foreign trading partners, which he says have become so acute they now threaten military readiness and America’s manufacturing capacity," wrote Cheney. "He has also imposed a 50 percent tariff on Brazil, citing that country’s trial of former President Jair Bolsonaro, a former Trump ally, and free speech concerns, which the White House claims amounts to an emergency."
However, the claim that the trade deficit is an emergency prompted skepticism among judges because those deficits have been in effect for a decade or more.