Evan Vucci/AP Photo
President Donald Trump speaks with reporters after announcing a trade deal with the United Kingdom in the Oval Office of the White House, May 8, 2025, in Washington.
There is one, and probably only one, saving grace to this moment in U.S. history: Donald Trump is absolutely terrible at getting things done. Despite a Republican Party filled with sycophants and a Democratic Party that still can’t figure out how to resist him, despite a cowed media, business, and legal elite, despite the prodigious powers of the presidency, he still manages to stumble. Inattention to what the job entails has something to do with it, but really he just has a superior knack for failing. Remember this is a guy who managed to bankrupt a casino.
Trump’s latest misadventure concerns his Liberation Day tariffs, which late on Wednesday were unanimously ruled illegal by a three-judge panel of the U.S. Court of International Trade that included a Trump nominee. Presidents do not have authority from the Constitution to impose tariffs, but over the past century, Congress has rather willingly handed that authority over. Presidents have multiple paths to impose tariffs, but Trump just happened to choose an illegal course.
Even that probably wouldn’t have raised much more than grumbling, but for the haphazard nature of the on-again, off-again, up-again, down-again tariffs, which finally moved to action maybe the only group willing to buck Trump at this point: free-market libertarians. Here’s who argued the case on behalf of five small businesses attesting to the illegality of Trump’s tariff moves: the Liberty Justice Center—an outfit normally seen in courts defending Second Amendment rights or trying to set up religious charter schools—aided by professors from the Antonin Scalia Law School at Koch-funded George Mason University. (Twelve state attorneys general later submitted their own lawsuit; the court ruled on both on Wednesday.)
The ruling will be immediately appealed, and we’ll see whether the Supreme Court will ultimately ride to Trump’s rescue, or whether the administration will abide by the verdict if it goes against them. And even if all appeals are exhausted, that will not end the tariff merry-go-round, though it will get harder. But what strikes me is how completely avoidable this was. Competency is a tragically undervalued skill in America; fortunately for us and the world, it’s in short supply in Washington today.
THERE IS NO QUESTION THAT CONGRESS has delegated significant trade authority to the president, as the ruling outlines. The Congressional Research Service identifies six statutes that grant presidential tariff powers. Three of them require specific findings by executive branch agencies that countries are either threatening national security, violating trade agreements with their conduct, or injuring a critical domestic industry. Two do not require formal findings, but the tariff rates that can be imposed are limited to no more than 15 percent in one case, and 50 percent in another.
Trump clearly didn’t want to wait around for an investigation, or to be bound by any stated limitations. Only one of the six options could give him that power: the International Emergency Economic Powers Act of 1977. Under this statute, any national emergency presenting an “unusual and extraordinary threat” allows the president to “regulate … importation.” Trump’s reason for using the IEEPA, then, was purely out of convenience.
Pushing the boundaries of legality has been both a hallmark and an Achilles’ heel for Trump over the past several months.
Yet any reasonable inquiry into the IEEPA’s authorities would reveal this as a foolish decision. While the law has been used for sanctions on foreign countries, no president before Trump had ever used it for tariffs; the statute never even uses the term. First of all, regulating imports doesn’t connote imposing unlimited tariffs of any size or duration. “This court does not read the words “regulate … importation” in IEEPA as authorizing the President to impose whatever tariff rates he deems desirable … such a reading would create an unconstitutional delegation of power,” the court ruled.
Trump’s Liberation Day tariffs were announced in response to a perceived “emergency” of bilateral trade deficits. Even if you granted that this constituted an emergency, there’s actually a different authority presidents must use to deal with such “balance-of-payments” deficits, under Section 122 of the Trade Act of 1974. Any Section 122 tariffs must be capped at 15 percent and limited to 150 days. Trump’s tariffs to address trade deficits did not conform to these rules, and are therefore illegal.
Trump announced separate tariffs on Canada, Mexico, and China due to alleged fentanyl trafficking, which were also illegal under the statute, the court ruled. Trump clearly placed those tariffs to create leverage with the countries to change their border policies in some way; nowhere in the IEEPA does it say a president can use imports for such a purpose.
All these problems were foreseeable. It’s why no president ever tried to use tariffs in this manner before. Moreover, it was unnecessary to go to these lengths. In his first term, Trump used Commerce Department, International Trade Commission, and U.S. trade representative (USTR) findings to impose tariffs on steel and aluminum imports, solar components, and a host of goods from China. Many people didn’t like those tariffs, but none were successfully challenged in court. It’s generally understood that presidents can use those powers, even if some consider it outlandish that aluminum imports represent a national-security threat.
Currently, those powers authorized Trump’s 25 percent tariffs on auto imports, as well as wider steel and aluminum tariffs. There are Commerce Department Section 232 investigations ongoing over pharmaceuticals and semiconductors. And the USTR tariffs on Chinese goods from the first term show that nation-by-nation tariffs over trade barriers are possible, though getting to them would be painstaking and probably stretch the bounds of the statutes.
The point is, a normal administration that wanted to revolutionize the global trade order had well-established tools to do so. But because Trump got greedy, predictable chaos has ensued. Plaintiff lawyers argue that anyone who paid the tariffs when in effect is now entitled to a refund. The White House, meanwhile, has vowed to appeal.
Pushing the boundaries of legality has been both a hallmark and an Achilles’ heel for Trump over the past several months. When he has succeeded, like with seemingly being allowed to fire members of independent agencies, he has entrenched executive power. But when he falters, like with this layup on tariffs, he has taken parts of his agenda that were fully realizable and turned them into dust.
In this instance, that’s great news. The tariffs were counterproductive, hurting domestic manufacturers on their inputs as much as consumers on their purchases. Hopes for industrial revival were diminishing rather than expanding. Some goods were hit that could never be made in the U.S. (like tropical fruit), creating nothing more than a tax on buyers. Trump took a burgeoning surge in critical manufacturing and destroyed it in a matter of months. And he set up a system for legalized bribery, with companies and countries bending the knee to earn special exemptions that could very well line the pockets of the president and his cronies.
But the silver lining is that Trump is bad enough at his job that the dramatic consequences have, for the moment, been wiped away.
