The Wayward Press Part IV

Reports on Trump’s tariffs neglect to say they’re unconstitutional

On July 12, the print version of The New York Times ran two stories totaling more than 3,000 words about what it accurately called Donald Trump’s tariff whims. One was about Trump blowing up global trade rules.[i] The other focused on his proposal for higher tariffs on Brazil—with which the U.S. has a trade SURPLUS, not deficit[ii]—because of charges against his friend, former President Jair Bolsonaro.[iii] The same day, The Washington Post print edition ran a story of more than 1,000 words about a proposed hike in tariffs for Canada.[iv]

Neither article mentioned what you might think would be an important point: Trump can’t do ANY of this. Based on the U.S. Constitution and statutes, he doesn’t have the legal authority. His social media posts about tariffs are all part of his continuing reality TV show and performative bullshitting to distract from the Jeffrey Epstein scandal, the impact of his Big Vile Bill, his reprehensible and increasingly unpopular deportation tactics, or whatever other bad news emerges. (The only mention of a constitution in the 4,000 words was a reference to the BRAZILIAN constitution in the Bolsonaro story. Honest.)

If you don’t believe me when I assert Trump can’t do this, you don’t have to. Just read the opinion by the U.S. Court of International Trade (CIT), which said so quite emphatically in a ruling tossing out the tariffs in May. This court knows more about trade law—and the constitutional provision that gives Congress, not the President, authority over tariffs—than any other court. Its unanimous unsigned 49-page opinion was comprehensive, thoughtful, and hard to dispute and came from a three-judge panel with a Trump appointee, Reagan appointee, and Obama appointee—a pretty broad political spectrum. An appeals court will hear the case at the end of July.

One always should be wary of predicting court rulings, but the CIT decision seems pretty airtight and hard to overturn--unless a court decides to make up the law and history and ignore precedent. An appeals court isn’t likely to do that, but the MAGA Supreme Court majority reflexively does this all the time, so who knows how it will rule.

But it will have to engage in an enormous amount of creative and dishonest sophistry. The CIT dispatched the matter in the first paragraph.[v] The Constitution gives Congress exclusive powers to collect duties and to regulate commerce with foreign nations. Trump is wrong in thinking that the International Emergency Economic Powers Act of 1977 (“IEEPA”) gives him the power to impose unlimited tariffs on goods from nearly every country. The law doesn’t “confer such unbounded authority,” the court said. The result: Trump’s tariffs go poof.

This sounds simple and straightforward--and looks like an open-and-shut case—but the history of tariffs is a tangled tale.

There’s no debate that Article 1, Section 8 of the Constitution gives Congress control over tariffs. The Founding Fathers wanted legislative oversight, “viewing tariffs as strategic levers to be used with caution and prudence,” according to usconstitution.net.[vi] Trump’s discretion and judiciousness in his tariff policy show he obviously is a serious student of this history. Oops, my bad. That should have been indiscretion and lack of judiciousness. And he’s not a serious student of anything.

Over time, Congress realized it would be too cumbersome to handle every trade deal so it delegated authority to the President in a series of statutes: the Reciprocal Trade Agreements Act of 1934, the Trade Expansion Act of 1962, and the Trade Act of 1974. The President could adopt tariffs on national security grounds or to counter unfair trade practices. But the Supreme Court said Congress had to lay down an intelligible principle, and the administration had to make findings and follow specified processes. Truth Social posts at 2 a.m. and interfering in another country’s judicial system aren’t what Congress had in mind.

Trump’s lawyers, who evidently need a refresher course in international trade law, tried to use two laws to impose tariffs. They misunderstood what’s allowable. On his first day in office, Trump tried to make use of IEEPA to impose what the court called trafficking tariffs, declaring emergencies due to several threats. A partial list of what he cited includes: violent cartels flooding the U.S. with deadly drugs; criminal gangs and narcotics at the southern border; fentanyl from Canada; and chemical precursors from China. In response, Trump slapped tariffs on Canada, Mexico, and China, which have gone up and down since.

On April 2, Trump relied on IEEPA to impose what the court called worldwide tariffs: a 10% levy on all imports from all trading partners, with some countries facing even stiffer rates. The emergency? A persistent annual goods trade deficit (did he ever hear of services?), which he said pose a threat to national security and the economy. The truth: the U.S. balance of trade has been fairly steady—hardly an emergency—for two decades. One exception was the period 2004 through 2008 during the financial crisis, and another was during the pandemic.[vii] Another sharp increase and decline came earlier this year as importers stockpiled imports in January, February, and March to avoid threatened tariffs. The numbers eased off to more typical numbers in April and May.[viii] So it was an emergency that Trump created.

Trump’s tariff ploys suffer from several deep flaws, according to the CIT.

1) As a decision during the Nixon Administration noted, the “mere incantation of ‘national emergency’ cannot, of course, sound the death-knell of the Constitution.” With the Constitution as a backdrop, the IEEPA allows narrowly drawn tariffs, not the kind of unrestricted worldwide tariffs Trump based on an emergency. “Any interpretation of IEEPA that delegates unlimited tariff authority is unconstitutional,” the court wrote.

2) The CIT tossed the trafficking tariffs because they didn’t address the alleged threats, as the law requires. Imposing a tariff, for example, won’t stop gang drug-running activity.

3) Nor does a trade deficit count as an emergency. The Trade Act of 1974 said a President can’t impose remedies for trade deficits under emergency powers. Trade deficits are handled under a non-emergency law, and Trump’s tariffs don’t even comply with that law because their duration and scope aren’t limited.

So maybe the Supreme Court will upend the tariffs, too, though with these clowns, it’s hardly a 100% certainty.

If you read the Post and Times on July 12, you wouldn’t know legality and constitutionality were even an issue. Their print editions had additional tariff stories on July 13. The Post’s 1,300-word piece waited almost 400 words to mention “legal challenges” in the 11^th paragraph and in the 12^th noted the CIT ruling.[ix] At least it was there, finally.

The Times? It waited until the 27^th and final paragraph in the print edition to mention that Trump’s authority “has been called into question by the courts.” The online version cut off the final eight paragraphs, including the 27th, so there was no mention of the fact Trump can’t do this.[x]

What are we to make of this?

1. The media are letting Trump get away with the shooting on 5^th Avenue he once boasted he could get away with. It is true that Trump says he will impose the tariffs. It is not true that he can do so legally. How about going beyond his grandstanding social media posts (is this really the way to make policy?) and telling readers what’s behind the bullshit?

2. How did the media forget TACO (Trump always chickens out)?

3. How did the media forget that Trump lied 30,000 times in his first administration and is keeping up that break-neck pace, so it’s imperative not to take what he says at face value? Ever. As the quintessential bullshitter, he is utterly indifferent to whether what he says is true. He cares only that it sounds good and makes him look good.[xi]

The Post engaged in even worse reporting. A July 13 print edition piece about Wall Street brushing off Trump’s tariff threats led with: “The stock market has learned to love President Donald Trump’s tariffs.”[xii] That parrots Trump’s line that the tariffs “have been very well received.”[xiii] The rest of the story—and the headline about brushing off his escalating threats—don’t support that lede. Wall Street doesn’t love the tariffs. Wall Street believes in TACO so it doesn’t take what Trump says seriously. I don’t usually hold up the masters of the universe as a model for anything good, but they’ve got it all over the media on this one.

Actually, there may have been one moment when Wall Street did love Trump’s tariffs. His announcement of tariffs on Liberation Day in April caused the market to nose dive, losing $2.4 trillion of market capitalization.[xiv] If you bought knowing he would fold, you could have made a lot of money when the market bounced back. Anyone who knew Trump’s MO or had inside information that he planned to cave could have made a bundle. I wonder how many people in the White House, Trump’s family, and Congress, and on Wall Street did. Is this yet another grift? Will somebody follow the money and finally do a respectable reporting job on Trump’s tariffs? Hope springs eternal.

What will happen if the Supreme Court actually does its job for once and knocks out the tariffs? Tariffs will go back to the 2.5% average in 2024[xv] unless Trump pushes higher rates through Congress. That doesn’t have a high probability but it’s not zero.

The High Court may block Trump’s unilateral destruction of the global trading system. Sanity may prevail in the sense that the trade damage may not be a ruinous as feared. But Trump already has destroyed business planning and supply chains and likely stunted global economic growth. He has demolished trust in the intelligence and reliability of Washington. Our allies and trading partners aren’t willing to risk being unprepared and undefended if American voters elect another narcissistic, know-nothing sociopath. Nor should they be. We all will pay a steep price for Trump’s whims and mayhem, even if the tariffs end up as footnotes in the dustbin of history, where they belong.

Crock is an ink-stained wretch who toiled in the journalism fields for three decades for The Associated Press, The Palm Beach Post, The Wall Street Journal, Business Week, Investopedia, TheStreet.com, and beststory.ca. His articles have appeared in The New York Times, The Washington Post, The New Republic, World Affairs Journal, and Northwestern Journal of International Affairs, and he has appeared on CNN, MSNBC, Court TV, CNNfn, CSPAN, Fox News, and National Public Radio’s To the Point, On Point, and Here and Now.

Crock holds a B.A. in political science and a J.D. from Columbia (as John Belushi said in Animal House, “Seven years of college down the drain.”), and an M.S.J. from Northwestern’s Medill School of Journalism. After the golden era of journalism ended for him circa 2005, he worked for several consulting firms as a writer, including Accenture, McKinsey, and Abt Global. He is mentoring local newspapers and joined The Resistance after he retired April 1, 2025.

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[i] https://www.nytimes.com/2025/07/11/world/europe/trump-tariffs-global-trade-deals.html

[ii] https://www.marketwatch.com/story/trumps-brazil-tariff-sets-a-scary-precedent-given-the-u-s-has-a-trade-surplus-with-the-country-economists-say-38a88bd7

[iii] https://www.nytimes.com/2025/07/11/world/americas/brazil-trump-tariffs.html

[iv] https://www.washingtonpost.com/world/2025/07/11/trump-tariffs-canada-35-percent/

[v] https://www.cit.uscourts.gov/sites/cit/files/25-66.pdf

[vi] https://www.usconstitution.net/executive-tariff-authority/

[vii] https://www.macrotrends.net/global-metrics/countries/usa/united-states/trade-balance-deficit

[viii] https://tradingeconomics.com/united-states/balance-of-trade

[ix] https://www.washingtonpost.com/politics/2025/07/12/trump-tariffs-mexico-european-union/

[x] https://www.nytimes.com/live/2025/07/12/us/trump-news

[xi] https://press.princeton.edu/books/hardcover/9780691276786/on-bullshit

[xii] https://www.washingtonpost.com/business/2025/07/12/stock-market-trump-tariffs-trade/

[xiii] https://fortune.com/2025/07/12/trump-tariffs-taco-trade-backfiring-stock-market-record-highs-trade-war/

[xiv] https://privatebank.jpmorgan.com/nam/en/insights/markets-and-investing/tmt/lessons-from-liberation-day-a-guide-to-tariffs

[xv] https://www.visualcapitalist.com/the-average-u-s-tariff-rate-since-1890/