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President Donald Trump speaks prior to the swearing-in of Steve Witkoff as special envoy during a ceremony in the Oval Office of the White House on Tuesday, May 6, 2025, in Washington, with a portrait of former President Ronald Reagan in the background (AP Photo/Mark Schiefelbein).
On the same day that the Trump administration encouraged an appellate court to affirm that President Donald Trump was within his authority to impose tariffs on national security and economic grounds, a constitutional law professor representing a pro-Trump think tank separately referenced another authority: the Tariff Act of 1930, also known as the Smoot-Hawley Tariff Act.
The America First Policy Institute on Tuesday submitted court documents as amicus curiae, or friend of the court, joining other Trump-supporting organizations urging the U.S. Court of Appeals for the Federal Circuit to overturn a late-May decision by the U.S. Court of International Trade, which ruled that Trump’s tariffs, including those imposed on Mexico, Canada, and China, were not authorized under the International Emergency Economic Powers Act (IEEPA).
That ruling is administratively stayed at present pending the outcome of the appeal at the Federal Circuit, and in the meantime, briefs have started to hit the appellate docket.
While the Trump administration’s opening brief expressed full-throated support for Trump’s tariff powers under the IEEPA and in the face of “grave threats” to national security, the America First Policy Institute, through Yale Law School constitutional law professor Jed Rubenfeld, focused instead on the Smoot-Hawley Tariff Act as “the single most relevant federal statute” that hasn’t been considered, largely echoing an article Rubenfeld recently published in the Free Press.
“Before the judiciary renders a decision so consequential, it is surely essential that all relevant law be fully considered. That did not happen here,” the brief said. “In fact, the single most relevant federal statute was not considered at all.”
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In Rubenfeld’s view, the Tariff Act of 1930 (the brief does not refer to it as the Smoot-Hawley Tariff Act) “expressly” authorized Trump to impose the “worldwide and reciprocal” tariffs.
“Section 338 of the Tariff Act of 1930 confers directly on the President the power to impose tariffs on any country in any amount up to 50%, ‘whenever the President shall find as a fact that any foreign country places any burden or disadvantage’ on United States commerce ‘directly or indirectly, by law or administrative regulation or practice, by or in respect to any customs, … charge, exaction, classification, regulation, condition, restriction, or prohibition,” said the brief. “As will be shown below, President Trump’s worldwide and reciprocal tariffs—enjoined by the court below—fit Section 338 of the Tariff Act of 1930 like a glove.”
“The reason the court below did not discuss the Tariff Act of 1930 is understandable: the President did not cite that statute in the pertinent Executive Orders,” he added. “But it is well established that an Executive Order may be upheld under a statute not cited in the Order itself. Because Section 338 of the Tariff Act of 1930 plainly authorizes the challenged tariffs, the judgment below must be reversed and the injunction vacated.”
Whether the Federal Circuit would embrace the Smoot-Hawley Tariff Act as a legal authority for Trump’s tariffs — an argument not relied upon by the Trump administration — remains to be seen.
Notably, then-President Ronald Reagan decades ago slammed the Smoot-Hawley Tariff Act as an act of misguided protectionism that only worsened the Great Depression.
From Reagan’s September 13, 1986, radio address to America:
The answer to our trade balance problem is not to close our markets, cut imports, or collapse trade. Millions of American jobs are tied to imports. The way to a better life is to open markets now closed, improve trading conditions, and to expand our exports. We learned that lesson half a century ago when we tried to balance the trade deficit by erecting a tariff wall around the United States. The Smoot-Hawley tariff ignited an international trade war and helped sink our country into the Great Depression.
The Federal Circuit will hear oral arguments in the case on July 31.
