Canada’s leaders are frantically trying to respond to U.S. tariffs on Canadian goods. As mere law professors, we have no opinion on the best economic or political tactic.
But there is a tactic that has been flying under the radar: challenging President Donald Trump’s legal authority to impose tariffs without congressional approval.
Though the Canadian and American constitutional orders differ in several ways, there is an important commonality between them: executive actors generally cannot make decisions without legislative approval. This principle applies as much to the Canadian prime minister and U.S. president as it does to specialized regulators or front-line bureaucrats in visa offices.
A corollary of this limit is that courts have a duty to ensure executive actors act within the confines of the powers delegated to them by legislatures.
The Federal Court of Canada’s recent decision in the Emergencies Act case reinforced this idea. The court noted that the executive only has the powers given to it by law.
For this reason, many judicial conservatives — who are often skeptical of courts reviewing legislative action on constitutional grounds — are less hesitant about courts reviewing executive actions.
Meanwhile, many American legal progressives have already been using similar arguments to challenge Trump’s executive actions.
So those with different priors on judicial review might find common cause in this case.
There is no doubt that Congress — not the President — has constitutional authority to levy tariffs in the U.S. Any tariffs that Trump imposes must therefore be through authority that Congress has delegated to him.
Trump claims that the International Emergency Economic Powers Act gives him the power to impose tariffs. But does it?
The act has never been used by any president to impose tariffs before.
And Trump’s assertion that the tariffs are necessary to stop fentanyl trafficking is suspect for several reasons. First, the quantity of fentanyl entering the U.S. from Canada may be limited. Second, the causal connection between the tariffs and solving a fentanyl crisis is dubious, to put it mildly. Third, the President has clear ulterior motives for imposing the tariffs: raising revenue and reshoring manufacturing jobs to the U.S. These may be noble goals, but they are not ones authorized by the act.
It is not the job of courts — in Canada or the U.S. — to second guess the policy judgments of the executive. It is their job, however, to make sure the executive stays within its constitutional lane.
Perhaps because of that concern, the Supreme Court of the United States introduced a rule called the “major questions doctrine.” This doctrine requires courts to look for specific legislative authorization when the executive seeks to regulate broad areas of economic or political significance. Whatever the problems with this doctrine, it means Trump cannot reach into the annals of the legislation to try to find some — any — justification for tariffs.
This is not to suggest that a legal challenge would not face serious obstacles. Three jump to mind.
First, even though the United States Supreme Court recently confirmed that deference does not apply to administrative actors, it can still be prescribed by legislation.
Second, courts’ deference to the executive is heightened in the realms of foreign relations and emergencies.
Third, a person with standing to challenge the tariffs would need to come forward and commence legal proceedings in the United States. It is not clear that a foreign government would qualify.
While litigation is rarely a speedy process, this matter could hopefully be heard in a U.S. court within weeks or months, and make its way to the U.S. Supreme Court in a couple of years.
Judicial power has often divided progressives and conservatives in the United States and, to a lesser extent, Canada. This case may be different.
It is possible to envision broad support for a challenge to Trump’s use of tariffs — and of such a challenge having a reasonable chance of stopping tariffs from being imposed at the President’s whim.
Good luck with that. Trump owns both houses and the Supreme Court. Any legal challenges from Canada would be quickly quashed or ignored.
If the Legislature willingly rolls over and lets Trump take on the powers of a dictator, there will be no challenge. Trump appears to think he won with a vast majority and a mandate to totally disrupt the global economy. Until midterms, there won’t be a challenge and only then if Democrats start getting it together to run as a valid alternative to the GOP.