Washington, D.C. — Ahead of tomorrow’s Supreme Court oral argument in the cases challenging President Donald Trump’s authority to impose broad tariffs, Rethink Trade today released a new analysis warning that a ruling in the administration’s favor would authorize immense unilateral powers for presidents to use tariffs to reward or punish specific companies, economic sectors, and entire countries.

After rescinding plans to attend oral argument, which no prior sitting President has ever done, Trump on Monday called the case “one of the most important in the history of the country.”

“A Supreme Court decision that IEEPA allows a president to unilaterally impose tariffs — of any amount, up and down, on any and all countries, and for any time period — would allow U.S. presidents to dole out mighty punishment and favor to businesses, political supplicants, and foreign nations alike. That’s precisely the kind of unchecked power the Founders sought to prevent when they gave Congress exclusive authority over tariffs and trade policy,” said Lori Wallach, Director of Rethink Trade and author of the analysis. “A president inclined to exercise such power without care and/or based on corruption, whim, pettiness, or political sycophancy, could destabilize the U.S. and global economies, undermining the national interest and democratic governance.”

Counterintuitively, the analysis notes, it actually may not mean much for businesses, workers, consumers, or other nations if the Court rules against or limits IEEPA tariffs. The administration has made clear that it intends to impose high tariffs and can use other statutes to do so. These other laws have more limits and/or procedural steps than IEEPA but could result in similar ends.

However, Rethink Trade’s new analysis warns that if the Court rules in the President’s favor, it would lock in one of the most significant shifts of power from Congress to the executive branch in modern history.

As the analysis notes: “It was not an accident that the Founders granted sole control over the substance of trade policy to Congress. A trigger for the Revolutionary War and U.S. independence from England was the unilateral imposition of tariffs on the colonies by King George to raise funds for his European wars. The Boston Tea Party was our nation’s first trade war! Having tariff and trade policy not set by one person — the president — but rather by a group elected by geographically distinct blocs of Americans — Congress — reflects the enormous impact international commercial policy has on a nation and the power associated with setting it.”

Upholding Trump’s claim under IEEPA, the analysis warns, would upend that design, allowing presidents to reward political allies and friends, punish critics, and leverage entire countries and industries to meet his demands, which is precisely the kind of unilateral control the Revolution sought to end. Recent “trade” deals have demonstrated the perils of Trump using tariff leverage not to balance trade or rebuild U.S. manufacturing and industrial employment as promised during the campaign, but rather to play politics, as with Brazil, or to force other countries to grant favors to Big Tech, Big Pharma, and other political supporters and the Trump family.

Notably, Wallach supports using tariffs as part of industrial policy to rebuild U.S. domestic manufacturing capacity and thinks the enormous U.S. global trade deficit is a serious problem that must be remedied along with the general state of imbalance in global trade flows. Thus, her take on the threats posed by U.S. presidents having unbound, unilateral tariff authority is coming from a very different place than the statements by typical tariff critics. Wallach has written the book on how Congress and the executive branch have managed the sharp separation of powers on tariffs and trade since 1788. In her 2013 book, The Rise and Fall of Fast Track Trade Authority, Wallach describes how presidents have tried to persuade Congress to delegate ever-broader “trade” authority for some time.

“President Trump’s current presumption of unbound tariff policy under IEEPA is on par with the moves of the previously greatest trade-authority-grabbing president, Richard Nixon,” Wallach added. “And Nixon tried — and thankfully failed — to get Congress to grant him authority to simply proclaim changes to U.S. law to conform it with the terms of trade pacts that a president would be authorized to sign and enter into without specific congressional approval!”

Read the full analysis here.

Learn more about Rethink Trade here.

Learn more about Economic Liberties here.

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The American Economic Liberties Project works to ensure America’s system of commerce is structured to advance, rather than undermine, economic liberty, fair commerce, and a secure, inclusive democracy. Economic Liberties believes true economic liberty means entrepreneurs and businesses large and small succeed on the merits of their ideas and hard work; commerce empowers consumers, workers, farmers, and engineers instead of subjecting them to discrimination and abuse from financiers and monopolists; foreign trade arrangements support domestic security and democracy; and wealth is broadly distributed to support equitable political power.