HOT TAKE: The Trade Court Travesty
How odd that activist judges would upend a Presidential power they've never before questioned when used by every other modern President.
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by Rod D. Martin
May 29, 2025
Since the passage of the Reciprocal Trade Agreements Act of 1934, every U.S. President has unilaterally imposed tariffs, or maintained those established by their predecessors.
So why exactly did the activist judges of the New York-based U.S. Court of International Trade on Wednesday, and Obama judge Rudolph Contreras (who also presides over the FISA Court) in a separate ruling today, overrule a power they’ve always previously upheld?
You know why.
The rulings are not just bad law (we’ll get to why). They’re a complete usurpation of the President’s — any President’s — power over foreign policy. It’s as bald an evisceration of the elected branches as any court has ever attempted.
Let’s put this in perspective. Donald Trump has launched a trade war. You may or may not like that, just as you may or may not have agreed with Lyndon Johnson deploying troops to Santo Domingo, or Ronald Reagan invading Grenada, or George Bush seizing Panama.
But what chaos would it create if two weeks into Operation Desert Storm, a district court had required all U.S. forces to return home from Kuwait?
It’s madness.
Is Congress’s delegation of tariff authority to the President constitutional? Yes. It’s a logical extension of his foreign policy powers, as has been recognized by every Congress and every President since 1934 (that’s 15 Presidents and 46 Congresses for those who might be counting). Were they all wrong? Possibly in part. I’ll get to that.
What is certain is that Trump’s trade powers have been a consensus position, constitutionally and legally speaking, for a very, very long time. “Settled law”, if you will. And never mind that these judges didn’t see fit to rule against Obama or Biden. The bigger point is that Congress didn’t, and hasn’t. And unless that legislature overturns its delegation of power to the President, it’s hard to see how the courts can.
Let me explain.
First and perhaps foremost, our Supreme Court still maintains that Congress may delegate all sorts of powers to the Executive Branch. I would contend that most, if not all, of that is unconstitutional, but my point is that the Court still says it isn’t.
For example:
In J.W. Hampton, Jr. & Co. v. United States (1928), the Supreme Court expressly upheld a statute giving the President power to adjust tariffs based on an "intelligible principle" provided by Congress. Note that this is well before FDR hijacked the courts in the late 1930s.
In Yakus v. United States (1944), the Supreme Court maintained its “intelligible principle” standard in upholding the delegation of authority by Congress to the U.S. Sentencing Commission to promulgate sentencing guidelines.
In Whitman v. American Trucking Associations (2001), the Supreme Court upheld the EPA’s authority to set air quality standards under the Clean Air Act, rejecting a nondelegation challenge.
In SEC v. Jarkesy (2024), the Supreme Court refused to rule on the nondelegation issue presented to it by the Fifth Circuit.
Do I believe that nondelegation doctrine (the idea that Congress may not delegate its lawmaking powers to the Executive Branch) is valid? Yes, yes, a thousand times yes, as I’ve written at length elsewhere, especially “Chevron Attacked the Very Idea of America”. You don’t have to convince me that Congress, not administrative agencies, should legislate.
But that’s not the point. The Supreme Court does not agree with me. It should. I suspect it soon will. But for two lower courts to attempt to overturn a major Presidential foreign policy initiative in midstream, one he campaigned on and that the voters clearly endorsed, based on a sudden, heretofore unthinkable conversion on nondelegation doctrine? That’s a travesty. A sick joke. Pure politics.
And if it is politics, then it should be left to the elected branches. There’s plenty of Supreme Court precedent there too. Elections have to matter, after all.
I’ll go one further. If the Supreme Court upholds these lower court rulings, but does not re-establish nondelegation doctrine entire, that’s a travesty. A sick joke. Pure politics. Perhaps not of the partisan sort, but certainly of the ideological variety. And that is simply not a power the Supreme Court has.
Having said all of that, I am not at all convinced that nondelegation doctrine even applies here, in the same way that I’m not at all convinced that Congress cannot legitimately delegate certain warmaking powers by treaty to the United Nations Security Council (which it has, without challenge, since 1945). Should it? That’s a policy debate. May it? So it would seem, just as it would seem that NATO’s Article 5, duly ratified by the U.S. Senate, obligates us to go to war in defense of our allies.
There are few quarters in which any of that has been controversial. The Supreme Court has not been one of them.
The Constitution gives overlapping jurisdiction over foreign and military policy to the Congress and the President. Sometimes that gets a bit murky. Usually when that’s so, a tug-of-war ensues on the exact boundaries of those powers, and as here, that is generally settled by Congress. But what is certain is that the Constitution gives zero power over foreign policy, including warmaking, to the courts.
So Congress has, for almost a century, agreed with every President during that time, that their prior grant of legislative authority to the Executive Branch over economic sanctions and trade relations is near-absolute, subject only to their further action. And moreover, Congress has given the courts no authority to obstruct that, particularly in mid-conflict. These are foreign conflicts, after all.
It’s that last bit which is especially horrifying. If Congress or the President can be halted in actions relating to foreign policy by unelected judges during a conflict, can they afford to ever take action at all? There will always be a plaintiff, always an activist judge to hear him, and always a roadblock to action. The foreign policy of the United States simply cannot be conducted this way, with FDR and Ike subject to an injunction in the middle of the D-Day invasion. It’s absurd. It is not a matter of principle. And it is an overreach which simply must not stand.
Indeed, it ought not stand if only because it is being so selectively applied. The President is not receiving “equal justice”, if you will. That much is manifest to all.
Market Response and the President’s Options
Giddy pundits predicted last night that the Dow Jones would soar today by as much as 1,000 points.
It did not. No one’s that stupid.
Goldman Sachs released this statement summing up market sentiment: “This ruling represents a setback for the administration’s tariff plans and increases uncertainty but might not change the final outcome for most major US trading partners. For now, we expect the Trump administration will find other ways to impose tariffs.”
Indeed.
The court ruled that the President overstepped his authority by invoking the International Emergency Economic Powers Act, or IEEPA, to impose sweeping tariffs on numerous countries. It thereby halted the President’s 10% blanket tariff, along with additional duties targeting China, Canada, and Mexico.
However, tariffs specific to particular industries — such as those on steel, aluminum, and automobiles — remain unaffected, giving the President plenty of room to maneuver. And Trump has multiple additional legal tools available. Among these are Sections 122 and 301 of the Trade Act of 1974, and Section 338 of the Tariff Act of 1930.
Section 122 stands out because it doesn’t require a formal investigation in the manner of Section 301, allowing for faster implementation. Goldman notes that under this provision, the administration could quickly introduce a tariff of up to 15% as a substitute for the blocked 10% measure. However, such a tariff would be temporary — lasting no more than 150 days unless Congress intervenes.
In the alternative, the Administration could initiate Section 301 probes into the trade practices of major U.S. partners. This would set the legal groundwork for future tariffs, although this route could take several weeks at a minimum to complete. An option would be to conduct this investigation during the 150 day limit of the Section 122 tariffs, then replacing them with new equivalent tariffs under Section 301.
Additionally, tariffs already in place under Section 232, which targets imports that may pose national security risks, could be extended to cover more industries. This section has already been used for metals and automobiles.
Goldman further highlights Section 338, which authorizes the president to levy duties up to 50% on goods from nations that engage in discriminatory trade practices against the United States. This measure has never before been used, but it’s the law. And it fits literally everything the President wants to do.
Of course, if the current tariffs were blocked on nondelegation grounds, the logical next step by these courts would be to overturn all these additional provisions as well.
Meanwhile, Trump’s appeal was immediate. The administration argues correctly that the two decisions improperly second-guess the President and threaten to unravel months of hard-fought trade negotiations.
"The political branches, not courts, make foreign policy and chart economic policy," it said in the filing, further threatening to seek emergency relief from the Supreme Court if the lower courts do not put the ruling on hold during the appeal of the merits.
"America cannot function if President Trump, or any other president for that matter, has their sensitive diplomatic or trade negotiations railroaded by activist judges," White House spokesperson Karoline Leavitt said at a press briefing on Thursday.
Trump’s appeal could reach the Supreme Court as early as tomorrow. I suppose we’ll find out just how much John Roberts hates Donald Trump.
But there’s no question: absent fully re-establishing nondelegation doctrine, neither the lower courts nor even the Supreme Court have any legitimate ground on which to review, much less overturn, Trump’s tariffs. And I would contend that such review remains illegitimate even so, even if we throw out nine decades of precedent, due to the inherent overlap of foreign policy powers between the Executive and Legislative branches, which Congress may within reason define.
You may not like Trump’s tariffs. But they are absolutely within reason.
