The Supreme Court heard oral arguments on Nov. 5 in a case challenging the validity of President Donald Trump’s tariff authority.

After listening to those arguments, a few things are clear.

The tariff authority belongs to Congress, and in the cases that its members delegate that authority, they are clear about doing so. Trump cites imprecise language, not meant to authorize tariffs, bent to meet his needs.

Congress should have stepped in to clarify that authority, but instead, the Supreme Court is once again forced to answer questions borne from congressional inaction. The Supreme Court should curb Trump’s tariff authority, even if the president will lash out at the justices for doing so.

Supreme Court justices have to decide on Trump's tariffs

The justices have been tasked with answering whether Congress has delegated tariff authority to the president, and whether the lawmakers can delegate said authority.

Trump claims tariff authority under the International Emergency Economic Powers Act, a 1977 statute that allows the president to “investigate, regulate, or prohibit” international trade in order to “deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States.”

There are a couple of reasons to doubt the validity of Trump’s tariffs. The first barrier is whether the term “regulate” is broad enough to include tariffs. One might intuitively think yes, but justices pointed to other similar statutes that give the president the power to “tariff” in specific circumstances as evidence that Congress may not have meant to include that.

Justices Sonia Sotomayor, Elena Kagan and Amy Coney Barrett all questioned why, in other instances, U.S. lawmakers have specifically used the term “tariff” or “tax” to delegate such authorities to the president, but in this case, they simply left it as the broad term “regulate.”

Attorney Neal Katyal, who represented a group of small businesses challenging the tariffs, as well as Chief Justice Roberts highlighted that since the International Emergency Economic Powers Act has been passed five decades ago, no other president has even attempted to assert tariff authority under the statute, further underlying the novel interpretation Trump has taken here.

The justices also questioned whether the Trump administration’s emergency declarations are valid.

On this matter, in response to a question from Justice Neil Gorsuch, the administration asserted such a broad authority that Solicitor General D. John Sauer said another administration could assert such an emergency due to climate change.

Such unilateral authority concerns me, and it certainly seemed to concern Justice Gorsuch. He said the following about the consequences of the administration’s position: “So Congress, as a practical matter, can't get this power back once it's handed it over to the president. It's a one-way ratchet toward the gradual but continual accretion of power in the executive branch and away from the people's elected representatives.”

Justice Gorsuch is entirely correct that if the court were to give broad deference to presidential emergencies, it would take veto-proof majorities in Congress to override presidential emergency declarations, a nearly impossible task, as members of Congress have no interest in withdrawing power from a president of their own party.

Once again, the court is forced to do what Congress should

Though the justices seemed skeptical of the administration's position on Trump’s tariff authority, it was far from clear how the case would shake out. What is clear, however, is the strain this decision will have on the judicial system.

Once again, the court is forced to step in as Congress refuses to use its constitutional power. At any point in the past several months since the White House declared “liberation day,” Congress could have stepped in to clarify the meaning of the legislation.

Yet, Congress hasn’t done so, because congressional Republicans would rather give Trump complete free rein than actually have an opinion about something he is doing. As it stands, members of Congress are able to simultaneously not endorse Trump’s tariffs outright while also not preventing the president from exercising his authority.

This form of cowardice is all too common in the current form of the Republican Party. Unfortunately, it appears as if the court is likely to bail Republicans out, curtailing Trump’s ability to unilaterally impose tariffs, thus saving the economy from his awful policies.

All the while, Trump gets to blame the courts, further undermining the public’s faith in the judicial branch as a whole. Meanwhile, Congress as an institution gets to shrug off its duties. The judiciary cannot afford to fill this role forever; eventually, Congress must step up to do its job.

As it stands, however, the legislative body can’t even muster keeping the lights of government on for more than a month, much less start to take a proactive approach of reclaiming constitutional powers.

Dace Potas is an opinion columnist for USA TODAY and a graduate of DePaul University with a degree in political science.

This article originally appeared on USA TODAY: Once again Congress fails to rein in Trump, leaving SCOTUS to consider doing it | Opinion

Reporting by Dace Potas, USA TODAY / USA TODAY

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