Going, Going, Gone: The Supreme Court Ruling on Trump’s IEEPA Tariffs

Tax Notes contributing editor Robert Goulder discusses the Supreme Court's ruling invalidating the tariffs set in place by President Trump and what to expect for refunds. 

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For related tax news, read the following in Tax Notes:

• New Trump Tariffs Hit With Multistate Legal Challenge
• ANALYSIS: The Real Liberation Day: IEEPA Tariffs Go Down in Flames

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Credits
Host: David D. Stewart
Executive Producers: Jeanne Rauch-Zender, Paige Jones
Producer and Editor: Jordan Parrish

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This episode is sponsored by the University of California Irvine School of Law Graduate Tax Program. For more information, visit law.uci.edu/gradtax.

Transcript

This transcript has been edited for clarity.

David D. Stewart: Welcome to the podcast. I'm David Stewart, editor in chief of Tax Notes Today International. This week: Tariff turmoil.

On February 20, the Supreme Court released its highly anticipated ruling on the tariffs the Trump administration imposed under the International Emergency Economic Powers Act, or IEEPA. Although the court invalidated these tariffs, questions still remain on refunds and future tariffs.

So joining me now to talk more about this is Tax Notes contributing editor Robert Goulder. Bob, welcome back to the podcast.

Robert Goulder: Thanks for having me, Dave.

David D. Stewart: All right, so let's start off with what happened at the Supreme Court.

Robert Goulder: Well, this was fantastic. I would say it was a long time coming, but it really wasn't. This whole litigation project really was fast-tracked when you think about it. The tariff, IEEPA, goes all the way back to the 1970s and the Carter administration. No one had ever used it to justify tariffs. But shortly after his second inauguration last year, so just over a year ago, President Trump signs these five executive orders creating tariffs under IEEPA, which no one had ever done before. They take effect and it doesn't take very long at all before some importers are challenging them in court saying, "This is illegal. You can't do this. IEEPA doesn't mention the word tariff. How can you use it as the authority for taxing imports?"

David D. Stewart: So what is IEEPA supposed to do?

Robert Goulder: Oh, it has wonderful uses. I looked into this. IEEPA has been used almost 80 times over the years. And it's very popular for going after bad actors or rogue nations. The first and most prominent use was in 1979 when President Carter used it to freeze Iranian assets that had been invested in Wall Street. Iranian government, the hostage crisis, and Ayatollah Khomeini and all that, OK, they had like millions, billions of dollars invested in Wall Street. Jimmy Carter froze it. And by the way, they're still frozen since 1979. And there are many examples of IEEPA being used against Sudan over things that were happening in Darfur. Or anytime a country or even a non-state actor does something we don't like, you can go after them with IEEPA. After the 9/11 terrorist attacks, President Bush used IEEPA to freeze assets linked to terrorist financing and Al-Qaeda, which isn't a nation-state.

So you can use it to go after Russian oligarchs. If there's some guy and you want to seize his yacht that's down at Boca Raton, IEEPA is a way to do that. It's used for all sorts of things, usually freezing assets, never for tariffs.

David D. Stewart: OK. So now we have this case where it is being used for tariffs. So what's happening here?

Robert Goulder: Yeah. So we have these five executive orders, and they can kind of be condensed into two camps. There's what we call the trafficking tariffs and the reciprocal tariffs. The trafficking tariffs are only focused at three countries, Canada, Mexico, and China. And the theory there is that the president, using his discretion, has declared an international emergency because those countries are not doing enough to stop the inflow of undocumented migrants and drugs such as fentanyl or fentanyl precursors. And he wants those countries to do more to stop that stuff coming into our country. And in the case of fentanyl, people are actually dying from it. So you could say, "OK, maybe there's an international emergency there." Query whether a tariff is really a suitable response to dealing with that crisis, but that's what Trump did there.

The second batch of IEEPA tariffs are what we call his reciprocal tariffs — where, if you remember his Liberation Day activities, this was April 2 of last year. He had a big press conference, a big to-do at the White House Rose Garden where he had these charts with the rates that supposedly foreign countries were charging against U.S. products when we sell to them, and then the rate he wanted to charge them when they import to us. So what was really driving those reciprocal tariffs was his objection to bilateral U.S. trade deficits. And I want to emphasize that's not the fiscal deficit, right? That's not like the budget deficit. This is just the trade deficit. This is when your imports are greater than your exports as to a bilateral trade relationship. And what's interesting there is, he completely ignored the role of services. Because there are some countries that got hit with reciprocal tariffs where the U.S. actually has an overall trade surplus when you factor in the service sector. But if you take out the service sector, yeah, there's a whole lot of countries out there that have a U.S. trade deficit.

So lots of reciprocal tariffs, lots of trafficking tariffs, lots and lots of tariffs. All sorts of people are paying these tariffs.

David D. Stewart: So what did the Supreme Court do with this?

Robert Goulder: It depends on how technical you want to be. I mean, this is an impressive, highly regarded tax podcast. I think we should be very, very detailed here and dig down on what was going on. First of all, there were two cases. One case came up through the Court of International Trade, and the lead plaintiff there was an organization called V.O.S. Selections Inc. And they were joined by four other small businesses. And when I say small businesses, these are tiny companies. They hardly have any staff. And there were also 12 states that were involved in that case where the lead plaintiff was the state of Oregon. Interestingly, all of those 12 states happen to have Democratic governors. Take that for what it is. There's always a political background to this because tariffs are an issue that Trump is so closely associated with, right?

So that case, V.O.S. Selections, VOS, by the way, in case anyone's wondering, that's some guy's, his initials. Victor O. Schwartz. And he's now retired and he's passed the business off to his like 20-something daughter, Chloe. So I mentioned all that because these importers, they're tiny little companies. Like why is little Chloe Schwartz in California bringing a case to take down IEEPA tariffs? How come it's not Walmart? How come it's not Target? How come it's not Amazon or Costco? How come it's not one of the major, major drivers of the U.S. import economy? These are tiny little businesses. I can't say this for sure, but I think none of those big names, those big household names, wanted to get on Trump's bad side. So it was left to very, very small businesses to bring this fight.

The other case we refer to as Learning Resources Inc. v. Trump. And I mentioned that because it has a different procedural posture, Dave. It did not come through the Court of International Trade. It was brought before the U.S. District Court for the District of Columbia, which creates a question. How come you have two groups of very intelligent, hardworking, well-trained lawyers looking at the statute, and they come to this major disagreement as to where a tariff refund suit should be brought?

And it's a little bit crazy that we've had tariffs in this country since 1789, and it's now 2026 and nobody knows for certain where you bring a tariff refund claim. That is just bonkers. OK, like 250 years of tariffs and we don't know where you sue? The technical issue there is there's a statute on this, not in the Internal Revenue Code, but elsewhere in the U.S. Code. And it says the Court of International Trade is where you bring a claim against the federal government arising under any law of the United States, which has been interpreted to mean, in other cases, it's been interpreted to mean a statute.

So do tariffs arise under a statute, I ask you? And I'll answer the question myself because that's just who I am. Tariffs technically arise under something called the Harmonized Tariff Schedule of the United States, which has the awkward acronym HTSUS. OK, so there's this tariff schedule. That is technically formally, based on precedent, that's how the tariffs arise. It's not a statute, not in the U.S. Code. It's not an act of Congress. It's maintained by the International Trade Commission. So based on all of that, the litigants in Learning Resources, they say tariffs are not arising under a law of the United States. Therefore, trade court doesn't have exclusive subject matter jurisdiction. This case has to be brought in the district court. And the litigants in V.O.S. Selections come to the precise opposite conclusion saying, "No, no, no. You need to treat the tariff schedule as if it were a law of the United States. So exclusive subject matter jurisdiction has to be under the trade court."

Regardless of what court they're in, the importers win and the Trump administration loses these cases. This goes back to May of last year. It was in the headlines. The decisions came out on consecutive days, and it was, "Wow. Trump has all these IEEPA tariffs and these little no-name small businesses that you've never heard of. In different courts, they both won." They got appealed. The Learning Resources case got appealed to the D.C. Circuit, V.O.S. Selections got appealed to the Federal Circuit. And eventually somebody asked for certiorari to the Supreme Court and they said, "Hey, could you fast-track this?" And the Supreme Court said yes. So we had back in September, the Supreme Court agreed to hear it and we had oral arguments at the beginning of November.

So it feels like the case has been around for a long time, but as far as constitutional challenges go, this has been sort of on warp speed. I mean, it's only been about a year or so since Trump signed the executive orders that were at the root of all this.

David D. Stewart: What sort of arguments did the litigants raise at the Supreme Court?

Robert Goulder: Oh, it's fascinating, Dave. There are two separate ways to invalidate Trump's IEEPA tariffs. One is the textual approach, the other is a constitutional approach. The textual approach is very straightforward, and it says, "Look, you've got a statute. It doesn't say anything about tariffs. Open-and-shut case, IEEPA doesn't give the president the authority to impose tariffs." It lets him do other things. It lets him regulate imports. He could even block imports. There's all these verbs that appear in the actual statutory language of IEEPA about the things the president can do. I mean, he could completely prevent the importation of a certain product in the United States, but it doesn't say anything about taxing. OK? So that's the textual argument.

The constitutional argument is that, OK, if for some reason the textual argument doesn't prevail, like if for some reason that phrase "regulate imports" as used in IEEPA, if that can be construed to include a tariff power, then you've got another problem. You have something called the major questions doctrine, which is this emerging part of law that appeals very much to, like, conservatives and libertarians who worry about the chief executive amassing too much power to sort of rule by edict without consulting Congress when it comes to issues that the Constitution confers to Congress, such as the taxing power. So the idea there is that even if IEEPA somehow can be broadly read to include a tariff power, the tariffs still fail for a constitutional violation because under the major questions doctrine, Congress messed up when they gave all of this power to the tariff.

And that issue, it does not feature in other statutes that give the president the tariff power. For instance, there's something called the Trade Expansion Act of 1962 and the Trade Authorization Act of 1974. Those other acts from Congress that allow the president to impose tariffs, they talk about tariffs all the time. They give a list of things like, "Well, you have to consult with the Commerce Department," or, "You need a report or a finding by the U.S. trade representative," or, "The tariff can't exceed 15 percent, or the tariff can't last for more than 150 days." Because for those other statutes, Congress, it kind of gave the president a set of instructions and said, "We're giving you the tariff power. Here's how you use it." IEEPA doesn't do that. So under the major questions doctrine, it's not so much the omission that they don't use the word tariff, it's that they don't give the president this set of principles and instructions about how to use the power.

So there're not one but two bases for overturning these tariffs. And from that discussion we just had, you can kind of predict what the government's response is. The government's response is, "OK, we acknowledge that IEEPA doesn't mention the word tariff, but when it says the president shall have the power to regulate importation, what can we construe from that?" If we read that broadly, holy cow, if the president has the ability, just say randomly, to ban the importation of solar panels from South Korea, if he can do that to prevent the product from entering the stream of commerce, it can't be unloaded off the ship at the port, right? If he can do that, that's a more onerous government action than saying, "OK, we'll let you bring that product into the country, but we're going to put a little tax on it." In other words, the power to regulate importation could be so broad that it includes a power to tax imports. So that's how the government gets over the textual problem.

The way that they get over the constitutional issue is really fascinating, maybe more so for constitutional theorists than for tax professionals, but the idea there is that the major questions doctrine shouldn't apply to President Trump when it comes to IEEPA tariffs because he's not really in it for the tax. He's in it for the pressure. He's in it to coerce our trade partners into making concessions. What Trump is really doing is an exercise of his constitutional prerogative to engage in diplomacy and what you might call foreign relations, foreign affairs. And the tax is just a means to an end, right?

So the thinking is, and you can see how this kind of makes sense. How does Trump use tariffs, both in his second term and in his first term? He put some huge tariff on a foreign product to the aggravation of that foreign government. Because they now are no longer price competitive. Maybe they want to sell into the vast U.S. consumer market. And if they're going to do [that], their products are going to be at this big price disadvantage because they just got more expensive. Foreign governments hate that. So they're calling up the Trump administration, saying, "What will it take to make it go away? We'll give you X, Y, and Z. We'll give you this, that, and the other thing. We'll give you concessions, Mr. President. Just make the tariff go away."

So in Trumpworld, in his mentality, that's why he's doing this. It isn't really about the taxes. It's not about the tax revenue, although they are raising a lot of — We can talk later about how many hundreds of billions of dollars in a particular year these tariffs are generating, but the government's good-faith argument is that this isn't a tax case. This is a foreign relations case. And when it comes to foreign relations, the Constitution makes that the president's business. So the major questions doctrine, not applicable.

David D. Stewart: Is that argument that this is not about raising revenue kind of undercut by some of the somewhat bombastic statements about replacing the income tax with tariffs?

Robert Goulder: Oh, 100 percent. I mean, how can you argue that it isn't about taxes when we're hearing all sorts of things? We're hearing Trump talk about having an External Revenue Service to exist in parallel to the Internal Revenue Service. We're hearing him talking about getting rid of the income tax and replacing it with tariffs, which is a weird historical twist. Because if you talk to our historian, Joe Thorndike, he'll remind you that the whole reason we got the income tax in the first place is because tariffs were so unpopular. And now we've kind of flipped that on its head. The income tax is so unpopular. People hate filing their 1040s every spring and Trump's saying, "Well, what if we just got rid of it and replaced it with tariffs revenue? Money's money, wherever it comes from." And you also had the Treasury secretary, Scott Bessent, go on TV and say that these tariffs were basically too big to fail.

And the reason the Supreme Court should uphold the IEEPA tariffs is because they're bringing in so much revenue to pay for government, and the banks were too big to fail. Well now, are these IEEPA tariffs, are Trump's tariffs too big to fail? That's a money issue. That's a tax issue. So at the same time that they have a record for months of making those kinds of statements to the media, when they walked through the front doors of the Supreme Court and approached the nine justices, they're like, "Yeah, this is not a tax case. The taxes are there, but you have to look beyond them. The taxes are there, but they're just a means to an end." This is about power and clout and negotiating leverage. Trump's a transactional guy. He knows how to put those other governments in a bind where they're going to give us stuff in return.

And that's a constitutionally conferred power that rests with the president under foreign relations, not a tax case.

David D. Stewart: All right. So how did the Supreme Court resolve these two arguments?

Robert Goulder: Well, it's complicated. We have nine justices and seven opinions, which might be some kind of record. The only justices who did not opine on Trump's IEEPA tariffs were Sonia Sotomayor and Samuel Alito. Everybody else had an opinion. The majority opinion was delivered by the chief justice, John Roberts. Maybe not a surprise because he kind of has a habit, if you will, of authoring the opinion of the court in really big controversial cases. Just because of his role, it's his court, so to speak. So it came down six to three. You had three conservative justices, Chief Justice Roberts, Justice Neil Gorsuch, and Justice Amy Coney Barrett, all agreeing with the importers. But doing so on the constitutional argument, saying under the major questions doctrine, you cannot get to tariffs through IEEPA.

Joining them were the three liberal justices, Elena Kagan, Sonia Sotomayor, and Justice Ketanji Brown Jackson. They got to the same conclusion without needing the major questions doctrine. They were the textualists here. They looked at the statute. They said, "It says regulate importation. It does not say anything about tariffs." Open-and-shut case, Trump loses. So that's six votes right there to invalidate the tariffs, which means the three members of the lonely dissent were out in the cold here. That's Justice Clarence Thomas, Justice Alito, and Justice Kavanaugh. And Kavanaugh's kind of interesting because if you look back at the other cases where the Supreme Court has brought up the major questions doctrine, you almost always, almost invariably find that Gorsuch and Kavanaugh agree, and they're on the same side of this. They're big fans of the nondelegation doctrine and the major questions doctrine. They worry about the executive branch acquiring too much power to wield its authority by its will or its whim.

Here, Kavanaugh breaks with Gorsuch, and it prompts Gorsuch to write this concurring opinion, which is a bit combative for a concurring opinion. If you sit down and you read a Supreme Court case, who are the angry ones? It's usually the people in the dissent because they didn't get their way. It's like they had a theory of how this case should be concluded and they didn't get their way. They're angry about it. So the justices in this dissent very often come across as combative. Here, we have a 46-page concurring opinion by Gorsuch, [in] which he says basically the same stuff that Justice Barrett says in four pages. I think the reason his concurring opinion was so combative is that he was personally upset with Justice Kavanaugh for not agreeing with him. And it all comes down to this issue about, is this a tax case or is this a foreign relations case?

Kavanaugh sees it as a foreign relations case, plain and simple, and he's not bothered by that textual omission. The fact that IEEPA doesn't mention tariffs, that doesn't bother Kavanaugh at all because it says regulate imports. And he figures if you can regulate an import, you can tax an import. The one includes the other. Gorsuch is the rock star of the intellectual movement that says, "We need the major questions doctrine." No other figure in the history of the Supreme Court has been as closely aligned with this doctrine of judicial construction as Neil Gorsuch. And there was no way he was going to let this case be determined just on textual grounds. To just say, "Oh, the statute doesn't say tariff, therefore Trump loses." No. This was an opportunity to put a presidential administration in its place for wielding powers that it never should have been given in the first place.

I mean, to Gorsuch, this is about the separation of powers. This is textbook constitutional stuff: Article I, Article II, Article III. The presidential executive, he has his prerogatives, Congress has theirs, and the taxing power rests with Congress and that's just how he sees it. So very interesting case because it split the conservatives. There were, you may have heard, Dave, six conservatives, only three liberals. How did Trump manage to lose? He lost three of the conservatives.

David D. Stewart: So now we have, the Supreme Court has decided on this, it's all resolved. We can all go home. Is there anything left to talk about?

Robert Goulder: Oh, I'm just getting started, Dave. What do you have to do to get a refund? Well, we don't know. We're slowly finding out in dribs and drabs, but what a lot of companies are doing is filing suit so that they've got a case on the docket with a case number. Because the concern is that Trump just finds it embarrassing that he lost these cases and maybe it goes to his ego and he doesn't like to dwell on the fact that he lost, that maybe there's some part of him would really like it if he didn't have to write the refund checks. And of course, it wouldn't be him writing the refund checks, nor would it be the IRS, by the way. The IRS had nothing whatsoever to do with this case, even though we think of them as the nation's premier tax agency. IRS doesn't collect revenues. It's collected by the Customs and Border Protection Agency, which isn't even under Treasury. It's under Homeland Security.

So until recently, the Cabinet secretary responsible for all of this was Kristi Noem, but she's out now, so somebody else is up for this. So it's not going to be the IRS that's going to be processing the refunds. It's going to be the CBP, Customs and Border Patrol Agency. But Dave, let me ask you this. If you're a big-name importer and you import huge quantities of products from abroad, and you've been paying IEEPA tariffs till you're sick of them for about a year now, where do you go to file your lawsuit? There's that initial question I brought up before that seemed very nerdy at the time, but now it becomes very relevant. Do you go to the Court of International Trade to get your refund, or do you go to the U.S. district court?

Because remember, both of those courts claimed exclusive, not overlapping, exclusive subject matter jurisdiction. That means of these two cases before the Supreme Court, as a matter of logic and reasoning, one of them has to be wrong. One of these cases is improperly before the Supreme Court. It's either Learning Resources or it's V.O.S. Selections. They both can't win because they're both claiming exclusive subject matter jurisdiction in different tribunals, and that can't happen in the world. So everybody overlooks this, but Chief Justice John Roberts addresses this in footnote one, which people's eye, you've got the Supreme Court and you're like, "How did they rule and who's dissenting?" Everybody overlooks footnote one. Justice Roberts very simply says, "The Harmonized Tariff Schedule of the United States needs to be treated as if it were a statute. Therefore, exclusive subject matter jurisdiction rests in the trade court, not in the district court."

Learning Resources is improperly before the court. Case vacated and dismissed without prejudice. I mean, Learning Resources and their co-plaintiffs, they can start all over again and file a lawsuit in the trade court, but those cases got vacated. They got dismissed, which is ironic because everyone refers to this as the Learning Resources case. Technically, they got their case thrown out of court, vacated and dismissed. So we really should be calling it the V.O.S. Selections case, but I digress. You need to file a lawsuit. Over 1,000 businesses have, and they're doing all of that in the trade court because we know now, because of footnote one of the decision, don't bring these cases in the district court. And it took only since 1789, Dave, for us to realize what court you have to go to get a tariff refund.

David D. Stewart: Is the trade court equipped for this sort of thing?

Robert Goulder: Oh, no.

David D. Stewart: This is a sleepy backwater that suddenly has billions of dollars at stake.

Robert Goulder: Many billions of dollars. The estimates of the refunds are all over the map. I've seen estimates over $200 billion. So as things exist right now, the lay of the land is that IEEPA still exists. It's still a statute. It wasn't invalidated. It's still part of the U.S. Code. And tariffs exist through the '62 Trade Act or the '74 Trade Act. So we still have IEEPA. We still have tariffs. We just don't have IEEPA tariffs. They're no longer being imposed. And Trump is talking about replacing them maybe with section 122 tariffs, although that's going to be controversial because jurisdictionally, you can't impose a section 122 tariff unless it is to respond to a balance-of-payment problem. And we currently don't have a balance of payment crisis. So we can expect more litigation. Everybody who pays a section 122 tariff is going to be challenging it in court. And that seems like very straightforward that they would lose those cases based on what we just learned from the Supreme Court and how they approached these issues.

What I would like to see actually, Dave, is for the courts not to be involved in the procedure of refunding these tariffs. I would prefer for this to be done administratively. And I learned something in this case. When a product comes into the United States and somebody pays a tariff, that's not the final tariff, that's a provisional tariff, and it's recorded, it's in the computer system. There's a whole platform that the Customs and Border Patrol Agency has for this, but it's a little bit like an estimated tax. If you know people who pay estimated tax, they understand intellectually that's not the final tax. You're just making quarterly payments. And then when you get around the following year to actually doing your return, your actual taxes are going to be a little bit different. If you didn't pay enough estimated tax, they're going to send you a bill, and you got to pay a little bit more. If you pay too much, you get a refund.

Everybody's used to that, OK? You have an analogous procedure on the tariff side where people pay a provisional tariff, and the government has 314 days to, I'm using air quotes now, to "liquidate" the tariff payment. And what that means is just to finalize it. Well, the way to finalize it is to just say, "Per the Supreme Court, the actual amount of the tariff is zero. So you paid a provisional amount, the actual tariff amount is zero. Here's your refund. We'll send you a payment, direct deposit. There you go." Nobody needs to go to court. Nobody needs to pay lawyers. You can do it through an online portal. That's how I would like to see this resolved. But then again, I'm a fan of efficiency and finding simple solutions to complex problems. The reality is that over a thousand importers have filed suit in the trade court because they don't have any confidence that the Trump administration is actually going to be writing these checks.

David D. Stewart: Let's say these refunds are issued. Are we ending up with a just result? Are the actual people who paid the tariffs, the end consumers, are they going to see any of this money back?

Robert Goulder: Well, not through the judicial process. Because in order to get a tariff refund from the government, you need to be what's called the importer of record. And if you're a retail consumer where you walk into a Costco and overpay for a product relative to a counterfactual in which you don't have IEEPA tariffs, you're not the importer of record. You have no standing. You can't sue the government to get your money back. You overpaid in a retail setting. That's not the government's problem. However, people are clever, and people are cagey, and there's lots of very savvy lawyers out there who are devising ways for retail consumers to try to get their money back. And if you think about it, there's so many millions and millions and tens of millions of people who've overpaid basically because you've paid higher retail prices than you needed to.

Arguably, there's a case here for a class action suit, but it wouldn't be against the government, and it wouldn't be against the Trump administration or Homeland Security or Customs and Border Patrol. These would be, we're talking about class action suits against retailers. Big names, brands. Where people go and shop and buy all their stuff: Walmart, Target, Amazon. Think how many tariffs Amazon pays. Well, if they pass all that off on their consumers with higher prices, and there's lots of studies that say they do. Goldman Sachs did a study in December that said 70 percent of the IEEPA tariff burden has been passed on to retail consumers. Well, what's 70 percent of $200 billion? It's a lot.

David D. Stewart: It sounds like there's going to be a heck of a lot to work through here. What are you looking for next? What's the next thing that we should all be watching for. either from the government or in the courts?

Robert Goulder: Oh, fraying international relations for one. If you think about it, during his first year of his second term, Trump was able to score a couple of trade agreements, bilateral trade agreements. There was one with the U.K. I believe there was one with Vietnam and Indonesia. I think there was one with Japan and the EU. All of those trade agreements were based on the counterparty hating the IEEPA tariffs. I mean, that argument that this is a real foreign relations, you see where that comes up here because the reason those other countries agreed to these little mini-trade deals with the Trump administration is because they hated the IEEPA tariffs. Well, now that the IEEPA tariffs have been declared illegal by the Supreme Court, does Japan still need to abide by the terms of that trade deal? The U.K, can the U.K. kind of walk back from the trade deal that it entered into with the Trump administration?

Maybe those trade deals don't really mean what we thought they meant because the leverage has been proven to be illusory. There was a tariff there, but now it's gone. So there's that. How are other countries going to respond to this? The other thing I'm looking forward to is how Trump responds. I think before, I mentioned section 122 of the 1974 Trade Act, that is a vehicle through which Congress did legally and lawfully delegate a taxing power, a tariff-setting power to the executive branch. The problem is the rate can't be higher than 15 percent, and the tariff cannot be in place for more than 150 days. Trump isn't going to like any of that. So I think he's going to be searching for a different basis, an alternate basis to impose basically the same tariff. He wants to have the same tariffs, but with a different statutory authorization.

And somebody once asked this very question to Treasury Secretary Bessent, and he said, "Oh, we could always use Smoot-Hawley." And you think, "Wait a minute, that was the 1930 Trade Act with Smoot-Hawley that allowed Herbert Hoover to impose tariffs, which arguably turned the national recession into the Great Depression and caused everybody in America to lose their jobs." Hoovervilles, right? Nobody has used Smoot-Hawley since 1930. And we're coming up on the 100th anniversary of it. And it's still law, by the way. Congress never repealed it. It's still on the books.

So there are different ways that Trump could use other statutes to get to the same place. IEEPA tariffs may be gone, but we know that Trump is still the tariff guy. He still wants to be a modern-day President William McKinley. He still thinks that this is part of his grand design for reviving the American industrial base and bringing back jobs that went to foreign countries.

He's not going to back down one bit on that. He's still the tariff guy. He's just going to try to do it with a different statutory basis. That's what I'm looking forward to.

David D. Stewart: Well, Bob, as always, it's been great talking to you. Before we go, would you like to plug your podcast?

Robert Goulder: Yes. In case you didn't know, Dave, I've been very busy working behind the scenes with my colleague, Joe Thorndike, who's not just an eminent historian, but a tax historian. In fact, I would go out there on a limb and say few people in the entire world know as much about the history of taxation as Joe Thorndike. So we have this new podcast series. It's called History Is Taxing, which is a very clever name. I'd like to take credit for it, but somebody else thought it up. And you can find it all over the place. You can find it on social media. You could find a link to it on our website, and you can find it on our YouTube channel. And it's my privilege in these episodes that we've done so far to interview Joe Thorndike about very specific issues. In fact, one of them has to do with the tariffs.

His big line is that tariffs created the modern income tax. So be careful what you ask for when Trump says, "Hey, why don't we replace the income tax with tariffs?" Be careful. We've been down that road before. People didn't like it. It didn't turn out the way people thought. So yeah, be careful what you wish for.

But I'm looking forward to that and recording more episodes. It's called History Is Taxing.

David D. Stewart: All right. And we'll drop a link to that in our show notes. Bob, thank you again for being here.

Robert Goulder: Thank you, Dave.

David D. Stewart: That's it for this week. You can follow me online @TaxStew, that's S-T-E-W, and be sure to follow @TaxNotes for all things tax. If you have any comments, questions, or suggestions for a future episode, you can email us at podcast@taxanalysts.org. And as always, if you like what we're doing here, please leave a rating or review wherever you download this podcast. We'll be back next week with another episode of Tax Notes Talk.

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