By John Kruzel
WASHINGTON (Reuters) -As the U.S. Supreme Court weighs the legality of Donald Trump’s sweeping tariffs, a Democratic-appointed judge’s opinion from an earlier stage in the case could offer the Republican president a roadmap for victory in a major test for one of his core economic policies.
While Trump lost before the U.S. Court of Appeals for the Federal Circuit, his Justice Department lawyers have drawn upon a 67-page dissenting opinion by Judge Richard Taranto, an appointee of Democratic former President Barack Obama, to defend his tariffs before the justices.
The Supreme Court is set during arguments on Wednesday to confront for the first time the question of whether a 1977 law meant for use in national emergencies authorizes a president to impose tariffs, which are taxes on imported goods.
Judges appointed by Democratic presidents to federal appeals courts have ruled against Trump in the vast majority of legal challenges to his policies this year, while Republican appointees have overwhelmingly voted in his favor, according to an analysis by Court Accountability, a left-leaning court transparency group.
As a Democratic-appointed judge, Taranto’s opinion represents a break from this pattern, which could make his embrace of Trump’s legal rationale stand out at the Supreme Court, which has a 6-3 conservative majority.
Taranto wrote that Trump acted lawfully, saying the statute at issue in the case “embodies an eyes-open congressional grant of broad emergency authority in this foreign-affairs realm.”
U.S. Solicitor General D. John Sauer, representing the Trump administration in the case, is expected to draw upon Taranto’s dissent during the arguments after citing his opinion 16 times in filings to the justices.
Catholic University Law School Professor Chad Squitieri, who filed a brief to the Supreme Court backing Trump’s imposition of the tariffs, said Taranto had highlighted “some rather serious legal errors” in the Federal Circuit ruling.
“I am not surprised that the solicitor general seems to have found a lot to like about Judge Taranto’s dissent,” Squitieri added.
TRILLIONS OF DOLLARS
Trump has made tariffs a key foreign policy tool, using them to renegotiate trade deals, extract concessions and exert political pressure on other countries. The disputed tariffs, which implicate trillions of dollars in customs duties over the next decade, have remained in effect as the legal challenge by businesses and Democratic-led U.S. states plays out.
Taranto authored a dissent, joined by three other judges, when his court ruled 7-4 in August that Trump had exceeded his powers in invoking the International Emergency Economic Powers Act, or IEEPA, as legal justification for many of the tariffs he has imposed since returning to the presidency in January.
White House trade adviser Peter Navarro, speaking on the Fox News “Sunday Morning Futures” program two days after the ruling, touted Taranto’s opinion.
“I think it provides a very clear roadmap to how the Supreme Court can certainly rule in our favor,” Navarro said.
‘HIGHLY PARTISAN’
Trump appealed the Washington-based Federal Circuit’s decision against him, as well as a separate case he lost in another court. After the Federal Circuit ruled, Trump criticized the court as “highly partisan,” though its split in the case defied such tidy labels.
The dissenters included two Democratic appointees – both selected by Obama – and two judges appointed by Republican former President George W. Bush. Democratic appointees made up six of the seven judges in the court’s decision against Trump.
Lawyers for challengers in the case include a former Bush-appointed judge and a former acting solicitor general under Obama. They have argued that a legal principle called the major questions doctrine, which stymied parts of Democratic former President Joe Biden’s agenda, should doom Trump’s tariffs, too.
The doctrine requires executive branch actions of “vast economic and political significance” to be clearly authorized by Congress.
The Federal Circuit found “no clear congressional authorization” under IEEPA for tariffs of the magnitude at issue. But Taranto wrote that the major questions doctrine does not apply because, in his view, the handoff of power from Congress to the president concerning tariffs was clear.
“We do not see IEEPA as anything but an eyes-open congressional choice to confer on the president broad authority to choose tools to restrict importation” amid a national emergency, Taranto wrote.
That was one of Taranto’s quotes that Sauer cited in Supreme Court filings. The Supreme Court cited the major questions doctrine repeatedly in cases involving Biden’s actions to thwart some of his agenda items including his plan to cancel $430 billion in student debt. The court found clear congressional authorization was lacking in those cases.
Challengers to Trump tariffs have argued that the U.S. Constitution grants Congress, not the president, the authority to issue taxes and tariffs, and that any delegation of that authority must be both explicit and limited.
In April, Trump placed tariffs on goods imported from individual countries to address U.S. trade deficits with them. These followed separate tariffs he announced in February as economic leverage on China, Canada and Mexico to curb the trafficking of the often-abused painkiller fentanyl and illicit drugs into the United States.
A NOVEL USE OF THE LAW
Prior to Trump, no president had used IEEPA to impose tariffs. The Justice Department has argued that the law allows tariffs under emergency provisions that authorize a president to regulate importation.
The law gives the president power to deal with “an unusual and extraordinary threat” to U.S. national security, foreign policy or economy. Typically, it has been used to impose sanctions on adversaries or freeze assets, including after the September 11, 2001, attacks on the United States.
Trump cited the U.S. trade deficit as a national emergency. The United States has had a trade deficit every year since 1975.
The Federal Circuit rejected Trump’s interpretation of IEEPA. The court, in its unsigned opinion, wrote that “it is far from plain” that the law’s language regarding regulating importation “includes the power to impose the tariffs at issue in this case.” Taranto, however, embraced Trump’s use of the law.
The plaintiffs have asked the Supreme Court to look skeptically on Trump’s expansive view of this law.
“If Congress intended IEEPA to authorize worldwide, variable and enduring tariff regimes, it would have said so,” one group of plaintiffs wrote in court papers.
(Reporting by John Kruzel; Editing by Amy Stevens and Will Dunham)
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