How Trump’s Newest Tariffs Could Hurt His Legal Case

Can an “unusual and extraordinary threat” be aired on TV in 60 seconds?

The Supreme Court is nine days away from taking up its highly anticipated case on President Trump’s tariffs — and Trump thinks an ad campaign from Canada is getting in the middle of it.

Last week, the province of Ontario spent $54 million airing an advertisement on several American TV stations that features Ronald Reagan saying that tariffs “hurt every American, worker and consumer,” as a way to message against Trump’s trade war.

“Canada is trying to illegally influence the United States Supreme Court in one of the most important rulings in the history of our Country,” Trump claimed in a Truth Social post.

Trump is correct that the Canadian ad spat could play a role in the court’s arguments next week, but not for the reasons he imagines.

In a post on Saturday, Trump announced that tariffs on Canada would be increased by 10%. The reason? “Their Advertisement was to be taken down, IMMEDIATELY, but they let it run last night during the World Series, knowing that it was a FRAUD,” Trump said.

It was because of this “serious misrepresentation of the facts, and hostile act” that the president said duties on products coming from the north would have to be increased.

Let’s take a moment now to review the case pending before the Supreme Court. Trump has claimed powers under the International Emergency Economic Powers Act of 1977 to impose tariffs. That law allows the president to “regulate…importation or exportation” in order to “deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States, if the President declares a national emergency with respect to such threat.”

This raises several legal questions:

Are there any boundaries on what a president can declare poses a national emergency, or an “unusual and extraordinary threat”?

How does one establish whether a presidential action “deal[s] with” such a threat?

Does imposing a tariff count as “regulat[ing]…importation or exportation”?

If tariff power does, in fact, flow from that language, are there any limits to the tariffs that result from it?

Essentially: even if one grants that Congress intended for IEEPA to serve as a delegation of tariff power (which is not entirely clear), does that mean that lawmakers thought that the president could pick anything as a national emergency, and then impose tariffs of any level or duration in response?

The Trump administration thinks the answer is “yes.” The parties challenging the tariffs (a collection of small businesses and Democratic-led states) argue that that will lead to a level of chaos and illegal presidential overreach that demands the justices strike down the tariffs.

“The government contends that the president may impose tariffs on the American people whenever he wants, at any rate he wants, for any countries and products he wants, for as long as he wants — simply by declaring [a national emergency],” the small businesses wrote in a Supreme Court filing last week. “The president can even change his mind tomorrow and back again the day after that.”

“That is a breathtaking assertion of power, and one would expect to see an unequivocal grant of authority from Congress to support it—if the Constitution permits it at all,” the filing continues.

Amid this legal back-and-forth, Trump has just announced plans to increase tariffs on Canada, ostensibly to “deal with” the “unusual and extraordinary threat” to the “national security, foreign policy, or economy of the United States” posed by … a 60-second ad he saw on ESPN?

Currently, there are two presidentially-declared national emergencies in effect that implicate Canada: one concerning the “flow of illicit drugs like fentanyl to the United States” (which has been used to impose tariffs against both Canada and Mexico) and the other stemming from “large and persistent annual U.S. goods trade deficits” (which has been used to impose “reciprocal” tariffs against Canada and almost every other U.S. trading partner).

Trump has not formally acted on his threat to raise tariffs against Canada by 10%, so it is not clear whether the added import taxes are a continuation of either of those emergencies or due to a new emergency that will soon be declared.

Either way, it will be hard for Trump to make good on his threat without making his legal rivals’ point for them: that the tariffs being questioned in court have been imposed in connection more to the president’s whims than to any “unusual and extraordinary threat[s]” against the United States.