Surely there's a mechanism through the courts for someone to challenge illegal tariffs on their imports if the president declares "There's a 50% tariff on everything because I woke up in a bad mood today and it's unfair of other countries to be doing that."
What you're describing is the Marbury tail wagging the Article II dog. The focus of the Constitution is allocation of power. The focus isn't creating a system where courts micromanage how the other two branches of government exercise that power. Marbury therefore goes to great lengths to draw lines between an executive's "ministerial" actions, which courts can supervise, and those that involve "discretion," which courts cannot. Marbury thus says:
> [W]here the heads of departments are the political or confidential agents of the Executive, merely to execute the will of the President, or rather to act in cases in which the Executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable. But where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured has a right to resort to the laws of his country for a remedy.
The Tariff Act provision here is a classic example of something that Congress has entrusted to the President's discretion. The statute says: "Whenever the President shall find as a fact that any foreign country places any burden or disadvantage upon the commerce of the United States by any of the unequal impositions or discriminations aforesaid..."
Insofar as the courts can properly review such actions, their rule is to determine whether the prerequisites for invoking the authority have been satisfied--namely, did the President make a finding? Here, the President did make a finding. At that point, the courts' jurisdiction gives way to the President's discretion. The courts don't get to decide whether the President's finding is correct, or even whether it makes sense. At that point, the act is "only politically examinable."
This seems incorrect
> cases in which the Executive possesses a constitutional or legal discretion
In this case though the laws wording would determine where the discretion starts and ends. "... whenever he shall find as a fact that such country—" so the president is limited by a.1 and a.2[1], the president was only granted discretion in under those proscribed limits.
So a find that says ~"neither a.1 or a.2 is occurring therefore I impose a tariff as president"(claiming no conditions to impose a tariff under the law are met but declaring a tariff anyway) seems reviewable by the court from your sources. Only having a finding is not enough, the finding has to follow the limits of discretion put forth by the law in question.
[1] https://www.law.cornell.edu/uscode/text/19/1338
edit to remove double negative
Asking weather if follows a.1 and a.2 does not seem 100% independent of asking if it is correct or not.
"I as president claim a.1, and a.2 are not being violated their for the law allows me to impose a tariff"
"I as president stubbed my toe this morning therefore a.1 and a.2 have been violated and I will be imposing a tariff."
"a.1 and a.2 have been violated, no I will not tell you how, therefor tariff."
You are saying it is black and white, but it does not seem so in the examples above.
> That may be true of the NEA, whose Court Nos. 25-00066 & 25-00077 Page 41 operation requires only that the President “specifically declare[] a national emergency.” 50 U.S.C. § 1621(b); see also Yoshida II, 526 F.2d at 581 n.32. 13 But IEEPA requires more than just the fact of a presidential finding or declaration: “The authorities granted to the President by section 1702 of this title may only be exercised to deal with an unusual and extraordinary threat with respect to which a national emergency has been declared for purposes of this chapter and may not be exercised for any other purpose.” 50 U.S.C. § 1701(b) (emphasis added). This language, importantly, does not commit the question of whether IEEPA authority “deal[s] with an unusual and extraordinary threat” to the President’s judgment. It does not grant IEEPA authority to the President simply when he “finds” or “determines” that an unusual and extraordinary threat exists.
This is not a novel concept. When courts review laws made by Congress, they don’t get to second guess Congress’s economic reasoning. Congress could ban interstate transportation of beer on Tuesdays. As long as the law was within Congress’s commerce power, courts don’t get to second guess the rationale for the law.
In particular, Section 338 requires a factual finding (from POTUS, which is not directly reviewable) but then also tasks USICT with "ascertaining" the facts. It doesn't explicitly give USICT ability to review the factual finding, but it's a very plausible argument that if USICT is tasked with ascertaining facts and those conflict with POTUS's declaration, then POTUS is exceeding statutory authority.
338 has never been used and it's not clear it'd pass Constitutional muster to begin with.
That is very interesting. It assumes that the president is truthful
We're pretty sure there's at least one fatal bug in the Constitution, thanks to Kurt Goedel [1], but I don't think anyone has definitively nailed down just what the bug is yet. Maybe this is a candidate.
Which makes sense, since that would be uncomprehendingly stupid.
That quote is from the Tariff Act of 1930. The government didn't argue this was the authority for the presidents actions.
The courts aren’t making foreign policy. That’s a strawman argument.
The President also doesn’t have unlimited powers. It’s President, not King or Dictator.
The President must act within the powers granted by law. The court has determined this act was outside of the law.
The major questions issue shows how out on a limb this court is. There’s currently a circuit split on whether MQD even applies to the president.
This statement is completely speculative. There is no evidence that substantive negotiations are happening on any trade deals.
>> There’s currently a circuit split on whether MQD even applies to the president.
The president is not a party to this suit so I don’t understand what this statement has to do with anything.
https://www.politico.com/news/2025/04/25/trump-200-trade-dea...
You have somehow put yourself into a position of having to argue that an enumerated power of Congress actually belongs wholly to the executive so long as the executive has some constitutionally legitimizing purpose for the application of that power. I think you must be doing this for sport, just to see if you can wriggle out from the contradictions.
And I never said the tariff power belongs to “wholly to the executive.” My view is that economic warfare between countries falls within the scope of Congress’s delegation of tariff authority. And under existing precedent, that’s a sufficient “intelligible principle” to avoid non-delegation problems.
Sure he does. The various tariff-related acts don't give the president carte blanche to set tariffs whenever he pleases. The acts give him the power to enact tariffs under certain conditions. If the president cannot convince a court that "having a trade deficit" falls under one of those conditions, then a court should, very correctly, tell the president he cannot enact those tariffs.
> The President makes foreign policy
That's a rather simplified view of the president's constitutional powers; the reality is more complex, and in this case that complexity does matter.
Right, but the “condition” in the law is that the President first makes a “finding” that other countries have engaged in unfair treatment. The president only needs to convince the court the finding has been made. But whether a trade deficit results from trade barriers or something else is a decision that Congress has delegated to the President to make.
It's unclear to me if you think this is just a true statement of how Executive power works, or if you are arguing that the correct standard of review for a very restricted legislative delegation of authority is rational basis scrutiny.
[1]: https://en.wikipedia.org/wiki/Loper_Bright_Enterprises_v._Ra...
https://www.cnn.com/2025/05/28/business/us-court-blocks-trum...
That seems to not agree with your "power Congress gave" characterization.
Aside: I recommend the phrase "import taxes" over "tariffs", because a disturbingly large portion of my neighbors still don't seem to understand WTF the latter really is.
Hell we don't even need to go that far afield: your logic implies all taxes are foreign policy, as they all affect foreign trade.
What's the foreign policy goal of the blanket tariffs across every country? Hint: There isn't one.
Its stated goals are revenue generation (Congress's job) and domestic economic development (not foreign policy)
As of blanket tariffs across all countries not being foreign policy I tend to disagree, it’s a policy of protectionism. I just don’t think this particular foreign policy falls under executive oversight, and should originate in Congress.
The case when tariffs fall under foreign policy is only when used to achieve a foreign policy objective only in response to an "unusual and extraordinary threat".
Taxes can be for raising revenue, but they can also function as clubs for changing behavior. Cigarette taxes, for example, have the purpose of deterring people from smoking.
Tariffs similarly can serve as clubs against foreign countries. You might have a tariff on China to get them to change their domestic policies. In that capacity, the tariff is functioning as a foreign policy tool; the revenue generation is incidental.
A tariff is not foreign policy. It is a tax levied on American companies.
The congress never gave Trump the power to do this. Of course they didn’t refuse it either..