Donald Trump’s April 2 tariffs paralyzed businesses that rely on international trade, wreaked havoc with financial markets, and injected new economic uncertainty into everyone’s life. Far from offering “liberation,” Trump’s executive orders embody an arbitrary lawlessness that threatens the individual liberties of the entrepreneurs who create goods and services so many of us depend upon.
In an effort to stand up for the rights of aggrieved small businesses, two recent lawsuits argue that the executive orders lack statutory authority. They argue that the law Trump invokes, the International Emergency Economic Powers Act, does not mention the power to impose tariffs (a power delegated by the Constitution to Congress). Also, the trade deficits the tariffs seek to eliminate cannot reasonably be construed as an emergency as they have existed for decades.
It may be prudent for businesses facing closure to seek relief from these tariffs by asking the courts to overturn the executive orders as lawless. But in truth, the IEEPA itself is lawless at its heart. Its key provisions are ripe for the abuse of tyrants opposed to individual freedom.
The IEEPA empowers the president to “deal with any unusual and extraordinary threat . . . to the national security, foreign policy, or economy of the United States.” For a law that extends extraordinary powers, this is unusually, deleteriously vague. It not only leaves “unusual and extraordinary” undefined, but sanctions sweeping emergency powers to deal with anything that loosely “threatens” the economy.
As commander-in-chief of the armed forces, the president arguably needs to have discretionary power to respond to imminent military threats without a congressional declaration of war. This would include the power to impose trade embargoes and blockades on hostile nations, as Kennedy did during the Cuban missile crisis.
But the IEEPA appears to give the president virtually unfettered power to become commander-in-chief of the economy. It gives him the power to “regulate . . . any . . . importation or exportation of . . . any property” of any foreign national by any U.S. citizen. This may not use the word “tariffs,” but “regulate” is sufficiently vague to include them along with draconian national economic controls for undefined periods of time. And all because, in the president’s economically illiterate estimate, we somehow suffer from importing more goods than our manufacturers export.
The president’s constitutional role is to execute the laws passed by Congress and thereby to protect the individual rights of the nation’s citizens. But a notoriously vague law like the IEEPA constitutes an unjustified congressional delegation of its powers (in this case, to impose tariffs) to the president. Because it delegates this power on the dubious grounds of threats to “the economy,” it invites the abuse of collectivist statists who pretend to speak for the “greater good” of a nation’s economy as a whole.
Trump is far from the first president to abuse emergency powers. In 2023, the Supreme Court rightly struck down President Biden’s use of obscure emergency provisions of the Higher Education Relief Opportunities for Students Act to forgive student loans during COVID. But Trump’s tariffs represent an even more disruptive and expansive abuse of emergency powers. The court should not only overturn his executive orders, but overturn as unconstitutional the law that opened this Pandora’s box of authoritarianism: the IEEPA itself.
The timing could not be better. Of late the court, in a series of cases beginning with Gundy v. United States in 2019, has begun to revive a dormant but crucial doctrine: that laws may be voided for vagueness on the grounds that they unconstitutionally delegate powers constitutionally vested in the legislature to the executive, thereby violating the separation of powers. The recent lawsuits draw on this doctrine and there is some hope the court may rule in their favor.
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Reading instruction must follow science over subjectiveness Trump is crushing America’s AI leadership. We still have time to fix it. Californians aren’t buying the EV mandate It is hard to maintain a functioning democracy without civil discourse Rebuilding requires reimagining environmentalism For much of the 20th century, the court was willing to “void for vagueness” local ordinances that allowed police to exercise arbitrary discretion and thereby threaten personal liberties of citizens. Trump’s authoritarian abuse of vague laws to throttle the lives of businesspeople and the rest of us who trade with them should now underscore that personal and economic liberties form a unity. The court should revive the “void for vagueness” doctrine and give it the status it enjoyed in the early 20th century when it saw separation of powers as an indispensable guardian of personal economic liberties as well.Only through such legal discipline may our lawmakers learn the value of objective law for the preservation of individual liberty. As Ayn Rand remarked: “An objective law protects a country’s freedom; only a non-objective law can give a statist the chance he seeks: a chance to impose his arbitrary will — his policies, his decisions, his interpretations, his enforcement, his punishment or favor — on disarmed, defenseless victims.”
Ben Bayer, Ph.D. in philosophy and formerly a professor, is a fellow and director of content at the Ayn Rand Institute. He writes and edits for ARI’s online publication, New Ideal. Twitter: @BenBayer.
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