Tariffs are nearly as old as the republic and when imposed by Congress — as they have been going back to the presidency of Thomas Jefferson — are clearly constitutional. Yet the questions before the court ask if Congress delegated away to the president the power to tax, and if it did, was that delegation constitutional?

The Department of Justice argues that both of those questions should be answered in the affirmative. However, if the court concludes that Congress never gave its taxing powers to the president, then it needn't reach the second question. It should answer both questions in the negative as there is simply no statute in which Congress has authorized the president to impose tariffs on his own, and under the Constitution, only Congress may impose taxes.

The DOJ argues that the National Emergencies Act of 1976 and the International Emergency Economic Powers Act of 1977 permit the president to address emergencies, and one of the tools of addressing emergencies is to impose tariffs. Does the United States currently have an economic emergency? The president says that the imbalance of trade — American industry and consumers buying more from foreigners than American industry sells to them — is somehow an emergency. It is not. We have had an imbalance of trade since 1934. Moreover, neither of the statutes upon which the president relies for authority to impose tariffs even mentions tariffs by name or implication.