The US Supreme Court has now delayed its announcement of a decision on the tariff issue for almost 2 weeks. Why has there been a delay?
This is pure speculation on my part, but here goes anyway…
I think there are a couple of reasons why a decision that appears to have been made, has been delayed.
The first is that Chief Justice Roberts understands that this decision will have profound historical significance, and he would greatly prefer that the decision NOT be 5-4. It is quite possible that he has delayed a decision in an attempt to recruit some of the justices opposed to the written decision or to modify the decision to allow for inclusion of those voices. And, understand that if there has been a 5-4 decision at this point, it might have gone either way. It is possible that the conservative members of the court have chosen to view tariffs as tools available to the President, while the liberal members plus one have resisted that decision, or the liberal members along with two of the conservative members have chosen to rule that the use of these tariffs has been unconstitutional, while the most conservative members have resisted that point of view because of the rationale above, plus the disruptive effects of reversing the tariff revenue collected to this point. I would think that Mr. Roberts would desire a decision that was at least 6-3, and preferably 7-2, so that there would be less criticism that the decision was partisan.
The second is that current events may be seen as contradictory to the logic behind the negotiated decision. Here are some of the problems that they may be struggling with:
There are two separate ways to look at tariffs.
Tariffs may be viewed as taxes since they are paid to the US Treasury by US-based companies at the border when goods are imported into the US. If one follows this logic, then the court needs to deal with the issue that the US Constitution assigns the taxing power to the US Congress, and no bills or acts have been passed to address these taxes. I believe that it is because of this particular problem that Mr. Trump has refused to acknowledge that tariffs are collected at the border and paid by US companies. He continually insists that foreign governments pay tariffs. No matter the logic, projecting it is critical to allow the administration to claim that tariffs are not taxes, but instruments of foreign policy.
Tariffs may also be used to protect national security. Enacted laws allow the President to adjust imports if, after an investigation, the Secretary of Commerce finds that those imports threaten national security. Historically, this has referred to the potential loss of critical domestic sourcing of products or materials that are essential to the national defense, such as the production of steel, aluminum, armaments, or automobiles. This is why, at least in my opinion, that Mr. Trump always claims that the tariffs are for national security. The Court must struggle with whether a simple declaration of national security is sufficient to attach those actions to the actual national security needs and if assigning tariffs to virtually ALL goods, not at directed items, aligns with the idea of national security. This is complicated by the imposition on items from countries that are strong allies or for imports that are strictly consumer goods.
The court then must struggle with the fact that US companies, as part of the appeal that they are hearing, have claimed that they are being forced to pay fees to the US government under these policies.
An extension of this argument is contained in the enacted laws that allow the President to use tariffs during a “national emergency”. Mr. Trump likes to claim that most of what he does is because he has declared a national emergency. The court needs to struggle with how to define a national emergency in order to determine if that declaration is justified, for example, when putting tariffs on Switzerland or Canada.
On the other hand, tariffs may be viewed as tools for influencing foreign policy. And since the US Constitution assigns foreign policy to the Article II Executive branch, the court must decide if they are being used as such. Enacted laws here allow a President to impose tariffs if other countries are engaging in “unjustifiable, unreasonable, or discriminatory” trade practices against U.S. commerce. The court must determine here if the 50% tariffs imposed on Brazil, for example, a country with which the U.S. has a trade surplus, and for which the announced justification was the internal political prosecution against a former leader of Brazil, by Brazil, fall within these permissible actions.
How to construct a narrow decision that will ultimately be released so that it defensibly sets appliable standards to the use of tariffs, and that can be accepted as reasonably non-partisan may be a difficult assignment and may be contributing to the delay.