The U.S. Court of Appeals for the Federal Circuit’s ruling against U.S. President Donald Trump’s “Liberation Day” tariffs has been hailed as a decisive reassertion of congressional power. By a 7–4 margin, the court declared that Trump exceeded his statutory authority under the International Emergency Economic Powers Act (IEEPA) of 1977.
But the dissent—penned by Chief Judge Kimberly Moore and joined by Judges Sharon Prost, Raymond Chen, and Richard Taranto—offers a different vision, one that elevates executive flexibility in times of crisis. Understanding that dissent is essential, especially for Canadian policy makers and businesses, as it presages the coming legal and political arguments for potentially making Trump’s tariffs permanent.
A definition that is too far-reaching
The dissent begins with a straightforward statutory argument. The IEEPA empowers the president to “regulate commerce” during a declared emergency. For the dissenters, that language is intentionally wide. To regulate is to control, restrain, or direct and tariffs are a quintessential means of regulating trade. By excluding tariffs from the statute’s scope, the majority rewrote congressional intent and narrowed a term that lawmakers deliberately left expansive.
The Cold War context matters to the dissenters. Congress wanted a president equipped to respond to economic threats without waiting for prolonged debate. In the dissenters’ telling, IEEPA was built to accommodate the unpredictable and extraordinary. Tariffs, they argue, fall squarely within that remit.
Desperate times call for desperate measures
Beyond textual interpretation, the dissenters stressed practicality. Emergencies are, by definition, moments of urgency. Whether the threat is fentanyl streaming across borders, steel and aluminum dumping that destabilizes domestic industries, or pandemic-induced supply chain chaos, waiting for congressional consensus risks paralysis. The dissenters frame the presidency not as autocratic but as a necessary first responder. Temporary trade actions, even sweeping ones, are governance tools to prevent deeper crises. By constraining the president, the majority thus risks leaving the U.S. flat-footed in precisely the kinds of situations the IEEPA was enacted to confront.
Guardrails against overreach
Crucially, the dissenters did not advocate for unlimited presidential discretion. They affirmed that emergency declarations must be clear, tied to genuine security threats, and subject to judicial review. The dissenters envisioned a system of conditional power: broad latitude to act quickly, balanced by transparency and the courts’ ability to intervene if a president abuses the statute. This is not carte blanche. Rather, it is a recognition that a rigid insistence on congressional primacy can itself produce dysfunction. The dissenters argue that the true safeguard lies not in disabling the executive but in monitoring and reviewing its emergency choices.
The case for a strong executive
Perhaps the most potent part of the dissent is constitutional. Judge Taranto highlights that the separation of powers allows Congress to delegate authority to the executive—and that it did so, deliberately, in the IEEPA. Courts should not read in restrictions that Congress did not impose. If lawmakers believe tariff authority should be excluded, the remedy is legislative amendment, not judicial invention, they conclude.
This reasoning aligns with a jurisprudence that favours a strong executive in foreign affairs and national security. It also resonates with the current U.S. Supreme Court, where six of nine justices were appointed by Republican presidents, three by Trump himself. These justices have shown consistent sympathy for expansive readings of executive power. The dissent thus provides a blueprint for how the high court might overturn the appeals court majority.
It would be tempting for Canadian policymakers to celebrate the appeals court majority. After all, limits on Trump’s tariff powers reduce the threat to Canadian exporters. But the dissent, as well as the tariffs still being imposed as the case proceeds, should temper that celebration. It previews the very arguments Trump’s lawyers will make when the case reaches the Supreme Court later this fall, and with a Trump-tilted bench, those arguments may yet carry the day.
Generative AI assisted in the production of this story.
