Getty Trumponomics How Trump Could Declare a Trade Emergency Trump wants to roll back the Washington consensus on trade. And he has the power to do it.

Todd Tucker is a fellow at the Roosevelt Institute , where he leads work on international economic law and politics. Follow him @toddntucker.

Could Donald Trump’s trade plans survive court attack?

The president-elect is pledging an overhaul of trade policy that appears to break with longstanding American tradition. From threatening to withdraw from the 164-member World Trade Organization, to slapping tariffs on individual companies that offshore jobs, to this week appointing a trade critic as U.S. trade representative, Trump seems determined to reverse a decades-old bipartisan elite consensus.


Could courts provide a check on Trump’s trade plans? Some experts argue that they could. Law professor Rebecca Kysar, looking at Team Trump’s proposal to slap a 5 to 10 percent tariff on all imports, believes the idea could run afoul of Congress’ traditional power of the purse. Tariffs raise revenue, she notes, and revenue bills have to originate in the House of Representatives and then be approved by the Senate. If Trump doesn’t follow this process, courts will order a do-over. This is a valid point, as far as it goes: The Constitution's Article I, Section 7 does indeed establish this sequencing for new legislation, which was built on practice from the British House of Commons. On Wednesday, Speaker Paul Ryan confirmed he won’t be ushering a tariff hike through Congress anytime soon.

The real issue, however, is that Trump won’t need new legislation. Both chambers -- who under Article I, Section 8 of the Constitution are the default crafters of foreign commercial policy -- have already delegated substantial trade powers to his predecessors. Indeed, dating back at least 14 decades, Congress has given the president virtually unlimited discretion to act to address emergencies and preserve national security.

While this language calls to mind military round-ups and detentions, successive U.S. presidents have leaned heavily on this authority as an economic and trade tool. During the U.S. Civil War, Abraham Lincoln used it to impose a four-cent levy on each pound of Southern cotton to fund the war effort. Franklin Roosevelt expanded these rules to pertain not only to times of war, but also national economic emergency. Within days of being sworn in, he unilaterally used the newly fashioned rules to close ailing banks, heeding the calls of Depression-wracked manufacturing states like Michigan. (Congress gave its blessing a few days later with the Emergency Banking Act.) And Richard Nixon used the authority to -- among other things -- impose a 10 percent surcharge on imports, broker a deal to restrain steel imports and license oil imports.

Far from blocking these moves, courts endorsed them. In the 1800s, the Supreme Court cited English monarchical privileges and the U.S.’s forceful conquering of New Mexico to show that heads of state alone determine emergency responses. And a century later, courts unanimously held that Nixon acted constitutionally, arguing that “no one has a vested right to trade with foreign nations” (U.S. v. Yoshida (1975)) and that courts had long blessed Roosevelt’s stretching of the presidency's powers. Seen in the full light of history, Trump is not breaking new ground as much as reviving a constitutionally permissible economic activism.

Since Nixon’s policies are the closest parallels to what Trump has floated, the courts’ reasoning deserves further exploration. The dispute over the import charge - Yoshida - was heard by the U.S. Court of Customs and Patent Appeals. Consumers Union v. Kissinger (1974) - on the steel restraints - by the U.S. Court of Appeals for D.C. The oil controversy (Federal Energy Administration v. Algonquin (1976)) went all the way up to the Supreme Court, which effectively endorsed the other two decisions by declining review.

The three decisions dealt with different planks of Nixon’s actions, but each followed similar reasoning. Each gave weight to the fact that Congress had multiple opportunities to amend the underlying authorities - codified in the 1917 Trading with the Enemy Act and 1962 Trade Expansion Act (TEA) - and never chose to rein in the president's authority. They noted that imports had increased rapidly in the 1960s and 70s, and that fees and charges were reasonable and efficient ways to address the matter. Moreover, the policies were more measured than they seemed at first glance: Certain industries and countries could be exempted from the charges if the president found diplomatic or economic reasons for doing so. Indeed, the Yoshida court noted that Nixon’s applied surcharge, once exemptions were factored in, was closer to 5 percent—not 10 percent. On balance, and looking to the legislative history, the courts noted that members of Congress knew the potential downside of giving a president so much power (namely, a risk of trade wars and international tensions). Despite this, generations of legislators decided the upside to having a common inter-branch front during emergencies was worth it.

Beyond that, the courts also placed importance on the fact that the president had to affirmatively declare an emergency. This created the possibility of later political accountability for him or his party if he exceeded the statutory requirements. For instance, the TEA mandates that the president consider whether imports are affecting national security by weakening domestic industry and workers, along with any “other relevant factors” (an expansive checklist indeed). Once Nixon made his determination, he could take any action for any duration to “adjust imports.” To the judges, this amounted to something that at least looked like a legal limitation, i.e. he would have to consider only “relevant” factors. As a political matter, however, this burden is minimal indeed.

Is it remotely plausible that Trump could rely on these statutes to fulfil the demands of his Midwestern constituents? In a word, yes. He could declare the decline of manufacturing employment to be an emergency or threat to national security. There would be ample support for this proposition. Certain industry clusters have reached the tipping point, where the U.S. can no longer count on continued domestic production. Across the Midwest, persistent joblessness, growing rates of addiction, and historic reversals in mortality among the white working class stand out against other regions, eras, and countries. The U.S. has lost 5.1 million manufacturing jobs since 1998, with steep declines in the states Trump just won. While some of the decline in manufacturing employment is undoubtedly due to technological change (i.e. humans being replaced by robots), a growing body of evidence suggests that trade policy and offshoring decisions also play a big role. Particularly if his actions are temporary and lead to some sort of international realignment deal at the end (as did Nixon’s), courts are likely to be deferential to the president’s traditional authority over foreign policy.

Trump’s lawyers can take solace in the dictionary definition of “emergency,” which doesn't require that a phenomenon be new, just that its severity have been previously unacknowledged. As Inside Philanthropy's David Callahan writes, financial support for research documenting globalization’s drawbacks is virtually nil, while business groups lavishly fund research on its positive qualities. Indeed, the virtual unanimity among election watchers that Trump could not win speaks to the blind spots in our national politics.

The cases explored above relate to older statutes, but they fall within a pattern of concentration of power in the executive branch that has if anything accelerated in the years since. Every president since Nixon has enjoyed some form of Fast Track authority, where they can pick countries to negotiate so-called trade deals with, put lots of non-trade rules in them, and then get a guaranteed up or down vote in Congress - no amendments allowed. The purpose of this procedure is to give the president a freer hand to make concessions that members of Congress might find politically unpalatable.

The irony here is stunning: Corporate lobbyists fought for decades to shield presidents from meaningful checks and balances on trade. And now, they face the prospect that President Trump will wield weapons of their own creation against them. If he does, he will find the task much easier than most people assume.