The two ways Trump's tariffs on Canada could collapse — despite his fight to keep them

National Post

2 days ago

WASHINGTON, D.C. — Time's up. On Friday, U.S. President Donald Trump raised the tariff rate on Canadian goods not covered under the Canada-United States-Mexico Agreement (CUSMA) from 25 to 35 per cent, saying they 'have to pay a fair rate.' The White House claims it's because of Canada's failure to curb the 'ongoing flood of fentanyl and other illicit drugs.' U.S. Customs and Border Protection (CBP) data, however, show that fentanyl seizures from Canada make up less than 0.1 per cent of total U.S. seizures of the drug; most smuggling comes across the Mexican border.
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But the future of Trump's policy also rests on shaky ground, and the tariffs could come crashing down even if Canada can't reach a deal at some point. Imposed through a controversially declared 'national emergency' under the International Emergency Economic Powers Act (IEEPA), the tariffs come with essentially three paths for relief to Canadian exporters and their American customers: the courts and the economy.
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There is a big question hanging over whether Trump's tariffs are even legal under the U.S. Constitution, which gives Congress powers over trade. Trump has bypassed that by claiming he's using presidential IEEPA emergency powers.
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On Thursday, the Washington, D.C.-based Federal Circuit Court of Appeals convened an en banc hearing for oral arguments in challenges to Trump's use of IEEPA. The 11 judges questioned whether the law meant for sanctioning adversaries or freezing assets during emergencies grants Trump the power to impose tariffs, with one judge noting, 'IEEPA doesn't even mention the word 'tariffs.'' The White House, meanwhile, says the law grants the president 'broad and flexible' emergency powers, including the ability to regulate imports.
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'Based on the tenor and questions of the arguments, it appears that the challengers have the better odds of prevailing,' Thomas Berry, the CATO Institute's director of the Robert A. Levy Center for Constitutional Studies said in a statement. 'Several judges peppered the government's attorney with skeptical questions about why a broad term in IEEPA like 'regulate importation' should be read to allow the president to unilaterally impose tariffs.'
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Trump's lawyers claim his executive order provides the justifications for the tariffs — in Canada's case, fentanyl. But Berry said 'those justifications would not matter if IEEPA simply does not authorize tariffs in the first place. That is the cleanest and simplest way to resolve this case, and it appears that the Federal Circuit may be leaning toward that result.'
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A decision is expected this month, and if it's a resounding pushback from the judges' panel, said Andrew Hale, a senior policy analyst at Heritage Foundation, the Supreme Court may not even take up the case. If so, he says, 'these Liberation Day tariffs and everything that's been imposed under emergency legislation, IEEPA, that all evaporates.'