OTTAWA — U.S. President Donald Trump blasted the U.S. Supreme Court on Friday for striking down his so-called border emergency tariffs, and vowed to immediately impose a new “10 per cent global tariff” on top of existing levies “straight across the board.”
In its 6-3 ruling Friday, the American top court wrote that Trump had no authority under the International Emergency Economic Powers Act (IEEPA) to levy tariffs against dozens of countries, including Canada, saying tariffs are a form of tax on domestic importers that only Congress can impose. However the court’s ruling acknowledged there are other powers the president can wield.
And Trump vowed within hours to do just that.
It was not immediately clear which countries would bear the brunt of Trump’s new tariff threat, or whether Canada could count on any tariff exemption — such as it had from Trump’s 35-per-cent border emergency tariffs as long as the Canadian goods met North American content rules under the continental free trade deal. That exemption covered 85 to 90 per cent of Canadian exports that faced the erstwhile “fentanyl” tariffs. But it did not protect Canadian steel, aluminum and copper slammed by Trump’s 50 per cent sectoral levies, or his 25 per cent tariffs on autos and auto parts. Those remain in effect.
The president did not directly answer when asked whether he would refund the billions in U.S. tariff revenue already collected, saying “it wasn’t discussed” in what he called the court’s “defective” ruling. “I guess it has to get litigated for the next two years,” he said.
Trump, at a news conference, railed against the six judges — whom he called “lapdogs” — whose majority decision declared Trump’s use of so-called border “emergency” tariffs an unconstitutional flex.
Trump called the six judges a “disgrace to our nation,” saying they, like his Democratic critics, are “very unpatriotic and disloyal to our Constitution. It’s my opinion that the court has been swayed by foreign interests and a political movement that is far smaller than people would ever think.”
He later said there are foreign interests which have “undue influence” over the court “whether it’s through fear or respect or friendships I don’t know, but I know some of the people that were involved, on the other side and I don’t like them I think they’re real slime balls.”
The president praised the three dissenting Supreme Court judges, saying Justice Brett Kavanaugh was a “genius” who got it right when he wrote the president will not be “constrained” and can use other statutes to legally levy tariffs.
Trump said he would sign a new executive order to do just that, using the 1974 Trade Act.
“Effective immediately, all national security tariffs under Section 232, and existing section 301 tariffs … remain in place, fully in place, and in full force and effect,” Trump declared. “Today, I will sign an order to impose a 10 per cent global tariff under Section 122, over and above our normal tariffs already being charged and we’re also initiating several Section 301 and other investigations to protect our country from unfair trading practices of other countries and companies.”
The trade act’s Section 122 that Trump cited allows the president to apply up to 15 per cent duties on all countries for 150 days before he would then need congressional approval. It does not require a preliminary trade investigation, unlike the Section 232 tariffs. The other section that Trump cited, 301 , has been used to impose broad tariffs on China. Those remain in effect.
In Canada, the Prime Minister’s Office said it would await Trump’s executive order before making any response.
Steve Verheul, Canada’s former chief trade negotiator during Trump’s first term renegotiation of the North American free trade agreement, cautioned that while the court struck down the IEEPA tariffs, Trump’s response may still pose a problem. “We haven’t seen a firm indication yet of whether they would intend to apply the Section 122 tariffs against Canada and Mexico,” he said, “so we could end up facing this 10 per cent tariff, but that’s not clear yet.”
Verheul said while he had been curious about how the Supreme Court would reject Trump’s plan, the ruling did not come as a surprise “because from a legal perspective and a policy perspective, there’s no way you could justify the use of IEEPA for this kind of purpose. And I think the initial courts that made the rulings got it right to begin with, and I didn’t see how the Supreme Court could come up with any kind of scenario where they could” justify it.
The ruling did not, however, affect the legality of sector-specific tariffs issued under Section 232 of the Trade Expansion Act — a point Trump repeatedly highlighted Friday.
The 170-page court decision was an unequivocal dismissal of the Trump administration’s claim that the president has extraordinary emergency powers to levy tariffs.
It declared that taxing powers lie only with Congress, and left no doubt that tariffs are a domestic tax contrary to Trump’s claim that other countries, not Americans, are the ones that pay.
“Tariffs operate directly on domestic importers to raise revenue for the Treasury and are ‘very clear[ly] … a branch of the taxing power’” that only Congress can exercise, Chief Justice John Roberts wrote in the case of Learning Resources, Inc. v. Trump.
The framers of the U.S. Constitution gave Congress “alone … access to the pockets of the people,” the majority states. “The Framers did not vest any part of the taxing power in the Executive Branch.”
However, for Canada and other affected trading partners, the ruling contains a big red flag.
The Supreme Court points out that Trump’s use of other tariffs that affect specific sectors like steel or aluminum is a different and more constitutional exercise of presidential power.
Section 232(b) of the Trade Expansion Act of 1962 “contains sweeping, discretion-conferring language that IEEPA does not contain,” the court said. The Trade Expansion Act contains an explicit reference to duties which can be cited to “authorize duties,” as Trump has done in claiming national security grounds in order to levy global tariffs on auto, steel, aluminum, and softwood lumber.
In a brief statement posted on social media before Trump made his latest threat, Canada-U.S. Trade Minister Dominic LeBlanc offered a mild cheer for the American high court ruling, saying it “reinforces Canada’s position” that the border emergency tariffs “imposed by the United States are unjustified.”
In a written statement, the head of the Canadian Chamber of Commerce said the court decision is a legal ruling “not a reset of U.S. trade policy. This is certainly not the last chapter of this never-ending story,” said chamber CEO Candace Laing. “Canada should prepare for new, blunter mechanisms to be used to reassert trade pressure, potentially with broader and more disruptive effects.”
“He doesn’t require anything other than his signature to use Section 122,” said Appleton, co-director of the Center for International Law at New York University and a fellow at the University of Waterloo’s Balsillie School of International Affairs.
While any tariffs imposed under Section 122 would expire after 150 days without congressional approval, Appleton said there’s a simple way to do an end-run around that apparent limitation.
“This president doesn’t like to ask Congress to anything,” said Appleton. “I’d expect what he’d actually do is wait a day or two and then impose it again.”
Jeffrey Schwartz, a lawyer with D.C.-based trade law firm Jacobson Burton Kelley, said Trump’s track record shows he’s likely to take a dual-track approach with the new tariffs: Try for a congressional extension, but don’t consider it necessary.
