The United States (US) Freedom Day, “delivered” by the second Trump Administration via the force of imposed tariffs, has come and gone. The much-vaunted 90 deals in 90 days, which the White House described as having multitudes of economic partners anxious to negotiate, failed to materialise by the announced start date of a new round of tariffs. As the arbitrary 9 July deadline approached, the “agreements” became proposals in the form of poorly written letters, riddled with glaring protocol errors and unacceptable threats, as was the case with Brazil. Now, we have a new deadline, 1 August, when, we can assure you, we will be back on this absurd carousel.
Trump does not want deals; Trump wants attention. He wants the power to command the media's focus and sustain the impression of an omnipotent agenda, allowing him to determine tariff values arbitrarily, unilaterally, and personally. Apparently, these are defined, as the President stated in a press conference, "based on common sense." Incredible, the European Union (EU) insists on publicly presenting all this as a procedural, normal, status-quo kind of negotiation. This despite an anecdotal, yet illustrative, episode reported recently: one of the European Commission's spokespersons, when asked if there was a trade agreement with the US, replied: "Let's see what happens when our friends in Washington wake up." As if a trade agreement between two mercantile giants could depend on such a ridiculous proposition. To use a quite popular theory in political science…What are we doing here?!
Absent from the broader debate, and from the responses by political leaders or groups in the European Parliament, is the fact that all of this could be for nothing, since the White House's power to impose tariffs via unilateral decree under (imaginary) emergencies can be rescinded by judicial decision. This was recently reinforced by the United States Court of International Trade (CIT), a federal court specialising in all matters pertaining to international trade. In a decision on 28 May, the CIT ruled that the President had usurped Congress’s power to impose tariffs, and that a trade deficit does not constitute an emergency, therefore he cannot “impose the tariffs he desires.”
CIT’s judgment is quite clear in limiting the President's authority under the International Emergency Economic Powers Act (IEEPA) regarding tariff imposition. On whether the IEEPA delegates to the President the authority to impose unlimited tariffs, the court’s unequivocal answer is: “it does not grant IEEPA authority to the President simply when he “finds” or “determines” that an unusual and extraordinary threat exists”. It further clarifies: “IEEPA does not authorize the President to declare a national emergency for the purpose of adjusting duties on imports.” This directly refutes the idea that the President can simply declare an emergency to levy tariffs.
The court explicitly rejects the Trump Administration’s broad interpretation of IEEPA, stating that such an interpretation “would render the statute an unconstitutional delegation of legislative authority.” This is a crucial point, as it argues that the President’s actions, under their interpretation, would overstep the constitutional separation of powers. It firmly reiterates the constitutional principle: “The power to ‘lay and collect Taxes, Duties, Imposts and Excises’ is vested in Congress, not the President”. Even if the Republican majorities both in the House of Representatives and in the Senate have completely capitulated to the Executive Branch, this does not mean that this abuse of power should be seen as inevitable. The take-home message is clear: "IEEPA was enacted to address the President's authority to deal with international economic emergencies, not to provide a new, sweeping power to impose tariffs".
It is necessary to add that the Trump Administration appealed this decision, and it will surely end up in the US Supreme Court. But even here, in an institution that has been very friendly to the President, it is not a guarantee that this time the MAGA majority will decide against one of the tenants of American conservatism: free trade. In fact, there are multiple court cases heading the same way, argued by very conservative groups, CATO, Chamber of Commerce, American Enterprise Institute, and the New Civil Liberties Alliance, a Leornard Leo and Charles Koch partnership.
However, before, and even independently of that final decision being rendered, the EU, and particularly the European Commission, should not continue this tiresome dance of pretending that Trump is a rational, adult, well-intentioned actor. The mirage of benign transatlantic interdependence has dissipated, and it will not return as long as Trump occupies the White House, and the Congress remains subservient. The EU would do well to act accordingly, using all tools at its disposal, economic, legal, diplomatic, to send a clear message to Washington. Unlike South Georgia and the South Sandwich Islands, where penguins cannot respond, Europeans can, and must, do so.
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