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Judges ask if Trump tariffs authorized by emergency powers

On Thursday, U.S. appellate court judges questioned whether President Donald Trump’s tariffs could be justified by his emergency powers after a lower federal court ruled that he had exceeded his authority in imposing sweeping duties on imported goods.

The U.S. Court of Appeals, Federal Circuit, in Washington, D.C., examines the legality of the "reciprocal tariffs" that Trump imposed against a wide range of U.S. trade partners in April, and tariffs imposed by Trump in February on China, Canada, and Mexico. Judges pressed Brett Shumate, the government's lawyer, to explain the International Emergency Economic Powers Act, a 1977 law that was historically used to sanction enemies or freeze their assets.

Trump is the first President to use IEEPA for tariffs.

The judges often interrupted Shumate and hurled a barrage of questions at his arguments.

One of the judges stated that "IEEPA does not even mention tariffs."

Shumate stated that the law gives "extraordinary" powers in an emergency. This includes the power to completely stop imports. He said IEEPA allows tariffs to be imposed because it gives a president the ability to "regulate imports" in a time of crisis.

The states and companies that challenged the tariffs argued they were not allowed under IEEPA, and that Congress and not the President has the authority to impose tariffs and taxes. Neal Katyal is a lawyer representing the businesses. He said that the government's argument claiming the word "regulate", includes the power of taxation, would be a vast extension of presidential powers. These arguments, which come just one day before Trump is planning to raise tariffs on imports from almost all U.S. partners, are the first time that a U.S. court has tested the extent of Trump's tariff authority. The president's foreign policy has been centered around tariffs, which he uses aggressively during his second term to leverage trade negotiations and push back on what he calls unfair practices.

Trump said that the tariffs in April were a reaction to persistent trade imbalances between the United States and a declining manufacturing power.

He said that the tariffs on China, Canada and Mexico are justified because these countries do not do enough to prevent illegal fentanyl from entering U.S. border. These countries deny this claim.

Shumate cited an appeals court ruling from 1975 that authorized President Richard Nixon to impose a 10% surcharge on all imported goods in order to slow inflation. The decision also stated that the president was not authorized to impose "whatever rates of tariff he considers desirable."

Shumate said that courts could not review a president’s actions under IEEPA, or impose any additional limitations that were not in the law. Several judges stated that this argument would essentially allow IEEPA to overwrite other U.S. law related to imports and tariffs. Katyal said that the Trump administration's arguments ignored the limited nature of Nixon’s tariffs as well as changes in the law since 1970s.

Katyal stated that "no trade law has ever been interpreted in the past 200 years to give this power to the president."

A panel consisting of eight judges appointed by Democratic Presidents and three by former Republican Presidents is hearing the case. The court's decision will not be made for some time, but the losing party is likely to appeal immediately to the U.S. Supreme Court.

TRADE NEGOTIATIONS Tariffs have become a major source of revenue for the federal government. In June, customs duties quadrupled to $27 billion. This was a record. Through June, they had topped $100 billion in the current fiscal. This income could be vital to offset the lost revenue due to Trump's tax law, which was passed earlier this month. Economists warn that the duties could increase prices for U.S. customers and decrease corporate profits. Trump's intermittent tariff threats have disrupted financial markets, and U.S. businesses' ability to manage their supply chains, production and staffing, and set prices. A three-judge panel of U.S. Court of International Trade on May 28 sided with Democratic states and small business that challenged Trump. The court ruled that the IEEPA didn't authorize tariffs based on long-standing trade deficits. Federal Circuit allowed tariffs to be in place until it considered the appeal of the administration. The case won't affect tariffs imposed under traditional legal authority such as steel and aluminum import duties. Following smaller agreements with Britain and Indonesia, the president announced recent trade deals which set tariff rates for goods imported from Japan and the European Union. Trump's Department of Justice argued that limiting Trump's tariff authority would undermine ongoing trade talks, while other Trump representatives have stated that negotiations continued without much change following the initial setback at court. Trump has set a date of August 1, 2018 for the introduction of higher tariffs against countries that refuse to negotiate new trade agreements.

At least seven other lawsuits have been filed against Trump's IEEPA citation, including those brought by small businesses in California and other states.

In one of these cases, a federal judge in Washington, D.C., found against Trump. No judge has so far backed Trump's claim to unlimited emergency tariff authority. Dietrich Knauth, Noeleen Walder, Leslie Adler and Deepa Babington edited the article.

(source: Reuters)