Tariffs on Trial: Trump's New Trade Policy After the Supreme Court Ban

Today, we are talking to Ericka York. Ericka is the VP of federal tax policy at the tax foundation and an expert on tariffs. So in today's episode, I asked Ericka to break down and explain the recent Supreme Court tariff ruling.

We also talked about the new tariffs that President Trump put into place, and what will happen the tariffs moving forward, and the impact he could have on the markets and consumers. We covered a lot of ground in this conversation, so let's get into it. Ericka York, welcome to the rundown.

Thank you. I can imagine the last few days for you have been absolutely wild with all the tariff stuff happening. So I appreciate you making the time today. Yeah, happy to join.

Well, I want to just dive right into it. So we're here to talk to Ericka. The big news, obviously, was on last Friday, February 20th. It's the Supreme Court ruled in the sixth three ruling that the president can't use IEPA to impose tariffs.

So I'm already like talking like acronyms here.

“In the simplest terms possible, can you explain what that means?”

What are the ruling actually forbid the president to do? So it's actually pretty narrow, but it essentially says this law that President Trump tried to use to impose tariffs. The baseline tariffs, the liberation day tariffs, the fentanyl tariffs, some others related to India and Brazil and oil,

he can't do that. Because this particular statute doesn't provide any president authority to impose tariffs. So it doesn't say anything about any other statute in trade law for presidential authority over tariffs.

It very simply says that this particular law, the president tried to use can't be used in this way. And so those tariffs are now unlawful and have been taken down. What percentage of the tariffs that were active were the IEPA tariffs? Pretty close to 75%.

So about 70% to 72% of the new revenues that had come in from last year were IEPA tariffs and going forward over the next decade, roughly three fourths of the revenues that President Trump was counting on, will no longer come in because IEPA has been struck down.

“Was this the first time a president had used IEPA to impose tariffs?”

That's right. IEPA has been used in a number of other ways to impose sanctions. For I think more than 60 times it had been used by various presidents since the 70s,

but never to impose any type of tariff.

So this was a real stretch of what was permitted under this particular statute and the Supreme Court said very clearly no the statute doesn't let you impose tariffs, tariffs or taxes, taxes are an article one power of Congress. If Congress lets the president use this, delegate this authority. It does so in a very clear way, not in a vague way.

And there's no mention of tax, tariff, import duty, nothing like that in the statute. So it was really pushing it. No president had tried it before and now no president will be able to do it again. Gotcha, so I think you mentioned it's around 75% of the tariffs that were in effect were the IEPA tariffs.

I keep reading estimates that it's $160 billion, $175 billion that have been collected. That are just sitting at the treasury now that were illegally collected under the IEPA tariffs. There's now talks about kind of refunding those tariffs.

“I think FedEx even sued the federal government to collect their refund.”

I want to first start with like, how much of a mess is it going to be to refund these tariffs? So I think the mess has been pretty overblown. If you think about tax refunds, the government overall knows how to refund overpayments of tax. It does this with the corporate income tax, it does this with individual income taxes, on a much larger scale than what we're talking about here with tariffs.

You know, if you look at individual income tax refunds, that's more than $300 billion each year

returned to more than $100 million individual income tax filers. We're talking about smaller dollar amounts here. Something like $160 billion has been collected under IEPA. And we're talking about a smaller number of importers. The question is, so maybe back up a step, the Supreme Court didn't say anything about refunds

and nor should they. They were not ruling on process on anything like that. They were simply ruling does IEPA allow tariffs? No, it doesn't. So these are unlawfully collected taxes. It's very obvious that this should be refunded.

And the government should make it as simple and transparent as possible. You know, on a monthly basis, there are refunds of overpayments of import duties.

There's a, you know, regular process that importers go through to first declare the value of what they're

And then to make sure that that's correct when they actually finalize the payment.

So this is not like a novel process. It's just on a much larger scale than normal. But the paperwork exists, right? Like any importer of record has declared the value of their imports. Very clearly had to pay a percentage of that based on the IEPA levy.

It's not like it's a mystery how much tariffs have been paid and who paid them. The question is, is the government going to be cooperative and make this a really easy process

for importers to get their money back or is it going to have to be litigated?

And we don't know the answer to that right now.

“Right. That, I think that's a key question right now is like, if it's simple, then if the White House”

cooperates with the government cooperates, maybe the companies can get their money back within days and weeks. But now we're already seeing FedEx. Like I said, Sue, so then is this going to drag on for months, maybe years before the refunds are, you know, given back to the companies? I hope not. I hope that, you know, if, if the court of international trade has to weigh in, I hope they do it in a way that says, like, in any case possible, this should be automatically

sent back to importers of record. If, if there are troubles, then it should be a really simple

transparent process for importers to get this back. I really hope it is not this long drawn out process. And I hope the Trump administration does not fight on giving back unlawfully collected taxes. Yeah. Well, now going back to the, the tariffs, I think hours, maybe a day after the, the Supreme Court struck down the IEPA tariffs president Trump said that he was implementing a 15% tariff and then he's using section 122 of the tariff act of 1974. Can you kind of explain

“what that is? Does this law have better legal footing? Is this going to get declared illegal?”

I mean, has this ever been used before? I'm just kind of turning it over to you. What is being used now to implement these 15% tariffs from President Trump? So that, that same afternoon of the decision President Trump announced he would be using section 122. An executive order came out that Friday night saying that a 10% section 122 tariff would be in force Saturday morning. President Trump said it would be 15% but so far it's being imposed at a 10% rate. This does date back to that trade act of

1974, which is where we see a lot of these other tariff authorities that have been used like section 232 national security tariffs, section 301 on fair trade practice tariffs. This one though is more untested. So it hasn't really been used in this way. It dates back to an era when the U.S. was still on the gold standard. When the dollar was pegged to the value of gold and there were fears

“about, you know, if, if too many people, if too many countries wanted to exchange their dollar for gold”

and we were running out of actual gold to do that, what authorities can we give the president to deal with that international payments problem, a balance of payments deficit. And so this statute permits the president to issue a proclamation that we have in international payments problem and put up a temporary across the board tariff. So it can't vary, the rate can't vary by product, the rate can't vary by country, it has to treat every country the same. And it's time limited.

It can only be an effect for 150 days. If it continues beyond that, it takes an act of Congress to extend it. So they're already a lot of questions about is this lawful because the U.S. is not, the dollar is not pegged to gold anymore. The U.S. does not have an international payments problem. There is no impending, you know, currency crisis or issue of us being able to handle the trade deficit that we have now. So a lot of scrutiny already being applied to the legal

justification. But there are big questions. Would a court be willing to weigh in on what exactly is the definition of an international payments problem? So we don't know. And we also have this time frame issue, you know, code litigation even play out in the next 150 days, probably not. So still we're in a place of a lot of uncertainty over these new tariffs, but they are currently being collected at a 10% rate on imports that are coming in now. So okay, so these are active.

And the IEPA tariffs is not active anymore. So if you're an importer, you import something, those tariffs that you were paying previously as of two weeks ago, you're not paying those anymore, right? That's right. IEPA went off and one 22 went on. That happened midnight on like Tuesday,

And I guess the key point for what I'm taking away from this is that even this section 122 is

is unproven legally. So it has some shaky legal grounds, because like you said, it's based off of say what payment, like it's based off of like payment deficits instead of like trade deficits,

“which is I think what the president's trying to, I think he's kind of using that as like the same thing.”

Yeah, he's trying to justify the section 122 used by pointing to large trade deficits by pointing to our international investment position, you know, how much foreigners have invested in the US versus how much US has invested in foreign countries, but none, none of those are like a textbook definition of an international payments problem. So it is quite questionable to use the authority.

I'm just going to throw this out there. Is it possible that once the 150-day

timeline expires or the clock expires and then out of the president's like, well 150 days again, right, like, it waits a day, 150 days gets an act of the day after. Is that a thing, I mean, or am I just kind of, is that my facility? So we don't know if I can get a little bit of a question, right, because we've seen President Trump, you know, push the bounds of what's allowed under other statutes, like he did with IEBA. So it's not out of the question that they might try to

push the bounds here under section 122, then it would be up to either Congress to say, hey, no, this is not what this authority means, or the courts to say, hey, no, this is a clear abuse of

authority. The way the administration is talking about it, though, like if you look at the executive order,

they put the end date in there. They say that these tariffs are in effect through July 24th, which is the 150 days. The administration, like Secretary Bessent, Ambassador Greer, they're also saying, this is a bridge. This is a short-term tariff to get us to the more permanent tariffs that they want to impose after. So it doesn't seem like at least now the administration wants to do multiple 122s, though, you know, that could be a wildcard that that comes up later. What's the,

what's their method of trying to get permanent tariffs? Now, like what, what, what laws are they looking at to try to establish the permanent tariffs to kind of get back to the level that they had with Aiba? There's two statutes that they're looking at and both already have tariffs in place right now.

“So the first would be Section 301. If you remember back to the first Trump administration and the”

tariffs, again, China, those are 301 tariffs. Is this part of the same? 1974 trade act? Yes, yeah, but these all date back to that same act and they're just different authorities that are allowed for different reasons. So 301 is like unfair trade practices or things that discriminate against the U.S. And so they're likely to look into, you know, different trading practices that countries use digital sales taxes if countries have those that single out the United States.

I'm different subsidies. Whatever it may be, something that's discriminatory against the U.S. If you find that in the investigation, then the president can use that as the justification for imposing a country-specific tariff. And then we also have Section 232 National Security tariffs. If the import of some type of good is found to threaten national security, then the President can impose tariffs on that import. So this deal in aluminum tariffs that we have now, the auto tariffs

copper, the investigations into pharmaceutical imports into semiconductors. All of those are ongoing, or already imposed to 32 investigations. There's a dozen of them. The administration is mulling at least half a dozen more. We could see even more, you know, announced in the coming days in weeks. So it's really going to be a patchwork of country-specific or producted industry-specific tariffs that they use to try to recreate what had been done with IEBA. So it's like the 150 days

from the Section 122 is like the band aid while that's in place. The 150 days are going to be going heads down, looking through all the sections and whatnot and figure out how to they can legally impose their tariffs in order to get to the levels similar to what they had with IEBA. Exactly.

“Do you think that they'll get close to what they had? I think with IEBA they were just kind of like”

broad strokes. Like you get 40%. You get 30%. They have to be more surgical now with these other statutes. They do. So they're more their narrow and scope. Is it worth it to do a 301 investigation into hundreds of trade partners, especially small trade partners, to try to recreate peace by peace? What was done with the baseline tariff? Probably not. They're probably going to have

each of these investigations and there's like a public comment period and you have to actually

issue a report. So that takes a lot of administrative workload to do. It's not easy to do that for every single trading partner. So we may see a bit more surgical approach focusing on larger trade partners and same with the industry specific tariffs. Like you just can't investigate every single type of import into the US. So it's probably not going to get back to 100% of what was done with IEBA. Maybe they get 50% of the way there. 75% of the way there. And then there's still

questions to on what happens to the things that were exempt under IEBA. One of the biggest exemptions has been for USMCA trade. Currently USMCA trade remains exempt under section 122. We also have

like USMCA review coming up the summer. So I think that's one of the huge question marks that

“we didn't even have an answer to under IEBA. So including the MCA stuff, I remember that a lot of”

these tech companies were getting exemptions for some of the semi-conductors and stuff they were importing. So is that all up in the air now? Yeah, effectively it is. There was a section 232 investigation into semi-conductors that has not been applied broadly. That's right now they're kind of keeping that in the back pocket. Like they have this investigation but they did not impose broads in the conductor tariffs. No broad consumer electronics tariffs but we don't know what's going

to be coming next. That's certainly one of the things that could see higher tariffs going forward. Gotcha. Yeah, I mean what I'm taking away from this is that like we're about to like re-enter the period of tariff uncertainty, right? Like we're and that's like the funny thing to me is that like April happened liberation they happened last year. Everyone freaks out market freak out. I mean everything just goes crazy. There was this period of like two to three to four weeks where the

president was changing his mind all the time of like changing the rates and then we kind of hit this like period like a low period of everyone's like all right there's like tariffs whatever in the markets rallied and hit all time highs and everyone was okay with it. In fact I feel like no one was really talking about tariffs until this ruling a couple weeks ago and now it's back to uncertainty. I wonder if like are we freaking out is the freak out overblown again you know what I'm

saying like it because we freak because the freak out was overblown back in April we as the freak out overblown again this time. So there's like two pieces to this. There's the reaction to what president Trump announced back in April and those announcements if they would have actually been

implemented would have been really bad. The tariffs that were ultimately put into effect were less

“than half of what was really announced back in April so that's why like the ultimate economic effect”

of the tariffs we got was a lot smaller than what many feared because the tariffs were a lot smaller than what many feared. Now I think we we know probably what the high watermark is right we've seen the max of what can be done with the broad statute that president Trump used he's not going to be able to get all the way back up to that with the statute he has now. So you know we estimated that before the scotus ruling the applied tariff rate on like average basis across all U.S. imports

was 13.8%. That's probably about the highest that it could get with the section 122 tariffs at 10% we think that applied rate is like something along 10 to 11%. So we're probably not going to get higher than that. We've seen the high watermark not just a question of how close can they keep it to that. The spot where there is a lot of uncertainty is what industry is going to get hit because there were exemptions for key growth areas right now like if you look at all the computer

equipment that's been coming in that has not really been hit with tariffs. So there could still be

“significant disruptions to specific industries but I think the overall impact we we know where that”

kind of tops out. And speaking of impact I mean I think that's a lot of questions that Americans and you know everyone has is like what is this mean for me you people listening like you know tariffs were even even Jerome Powell if Ed shared Jerome Powell said that tariffs were having an impact on inflation inflation is trending lower but it's still not under the 2% target that they have and one of that reason might be tariffs with everything happening right now like what is the

tax foundation forecasting the impact the tariffs will be in 2026. So you guys updated your forecast based on the the recent ruling. Yeah we we did a couple of updates so we've we've estimated what it would be at 10% and at 15% so just to give context on the the baseline in 2025 we estimated

Court ruling that the average burden would have been $1,300 in 2026. Now depending where the where

the section 122 tariff lands and assuming that it expires after 150 days like it's supposed to we estimate that per household burden will be between 600 to $700. So you can see that it's been close to cut in half depending what this rate will be but that has a big like caveat to it because something new will happen after those 150 days so the per household burden will be somewhere probably between like 700 to $1,000 when all is said and done and the way that household's

“experience that burden I think is like important to think through there's so much focus on the”

inflation and consumer price angle which is a real channel that tariffs have an impact through right if the importer pays the tariff then has to decide what its pricing strategy is and pass some of that cost on to consumers that's one way we pay through tariffs as higher prices but on a lot of cases the importer or the business can't pass that all the way through to the retail price level has to eat some of the cost and so that has an effect on US household income just as much as

higher prices do if a firm has to eat the tariff cost they may reduce investment they may reduce hiring they may reduce how much they pay their employees you know wages might not grow as much and so one way or another whether it's through prices or whether through it's like this more direct reduction in income US households bear most of the burden of tariffs foreigners can also bear some of the burden if they lower the prices that they're selling into the US economy most of the

research we've seen though shows that that was not a major effect something like 90 to 95% of the tariffs was passing through to the US economy and that pathway was split between consumer prices and staying at the business level so we know that these tariffs their attacks that's pulled out of the US economy they primarily burden the US households income that can be through like the higher prices the direct reductions in income or you know less capital income less return to shareholders

very clearly they have a negative impact and and shrink how much income we have. I'm curious to get your take on this like why do you think that President Trump stuck with a 10% rate for the one was it I keep 122 section 1202 why do you think it stuck with 10 and and not just go all we have to 15. So I think it's probably related to these trade agreements that that were made several of those secured a maximum 10% rate for for various trade partners like Japan UK EU

and going to the 15% across the board would violate all of those agreements that that were just

“reached so I think that's why it was announced and actually implemented at 10% even though President”

Trump has said he wants to increase it to 15% and you've seen folks like Greer say they're working through how they can try to do that I think the reason they're attempting to work through that is because 122 does not permit different rates for different trade partners so they've really kind of backed themselves into a corner with President Trump saying he wants it at 15% doing that would

violate all these agreements that were just reached at 10%. So I don't know whether they will ultimately

increase it to the 15% or whether they'll just keep saying they're working on that and then we'll see the 301 investigations come out with you know countries specific rates after 122 comes off. Yeah I mean 150 days is a blink of an eye in all this stuff so I'm sure they're probably going to try to figure out how to do the other sections to stay in order to get the rates that they want.

“And I think the one one interesting thing that you said is that the burden that these tariffs are”

the burden that the American households feel and this is whole tariff refund stuff is going to get a little bit interesting politically speaking I mean we try to focus on the the investing side but like if American households are feeling the

brunt of the tariffs you have 166, 365 billion dollars whatever in in refunds going back to the

corporations how is all that going to play out you don't have to comment on that but I'm just kind of thinking through like that's going to become just a story line for the next few next few weeks. It's sticky I think we'll see I think we'll see like a lot of social or political pressure on corporations that get the refunds to somehow share those with consumers if if you're a business that like announced that you were hiking your prices because of tariffs and then you

get a tariff refund people won't be happy about that and like one of the things I've been saying is you know there there's it seems like in Congress and elsewhere you know various governors they're saying refund this to to the consumers well there's no tax that that we refund based on

play out based on who legally made the payment but then the question is is there enough pressure

“to have importers share that with the people who actually bore the burden I think there will”

will be some pressure for that. Yeah that's going to be an interesting storyline. Last question here you know the whole goal of the whole goal of tariffs you know President Trump's like key economic policy was like to use the tariff to shrink the U.S. trade deficit right and I think what the U.S. is going to trade deficit since like the 70s maybe the 80s. Yeah about about 50 years right so is this actually a problem and do tariff solve that problem? So a trade deficit itself is not

necessarily a problem you can have a trade deficit for a good reason or a bad reason and in the

case of the United States one of the reasons we run a trade deficit year after year because we have

a lot of investment opportunities in our economy and we do not have enough domestic saving to fulfill that and so we have this foreign capital inflow because the U.S. is a really attractive place to invest. We also have a really large government budget deficit right that counts as disaving and foreigners help fund that. So depending you know if these are productivity enhancing investments that these capital inflows are funding that's good for the U.S. economy that means we

enjoy a higher standard of living than we otherwise would get. If it's a government budget deficit and it's wasteful spending and it's not doing anything to boost growth or productivity that's

basically just a tax increase waiting for it for the future. It's not really enhancing growth

or the size of the economy but that itself is not a problem of the trade deficit that itself is a problem of the federal government's budget deficit. So tariffs are not really a tool that help

“fix that in a substantial way. The main thing that you have to fix if you want to fix the trade deficit”

is this gap between saving and investment and trade policy is not really a tool to do that. That's why if you listen to the Trump administration's talking of you know we're going to use tariffs to fix the trade deficit and then you listen to economists and they say well that's not going to work. You're not going to really make a big dent in the trade deficit overall at all. And then if you look at the data that they came out from 2025 not a big dent in the trade deficit

overall. In fact you know if you look at the inflation adjusted numbers the trade deficit went up if you look at just trade and goods the trade deficit went up. So tariffs are not the right tool to use here and in fact some of the administration's other policies like if you look at the new tax law that's going to increase budget deficits that's going to require more for an inflow to fund that higher deficit. It also included some provisions in there that make investment

in the U.S. more attractive like full expensing of capital investment that's also going to attract

“more inflow of investment. So you need to take a holistic look at saving versus investment balances.”

These broader macro factors not just tariffs if you actually want to do something about the trade deficit. Yeah the deficit going up was I think a shocking to some people when they're like oh wait this I thought the tariffs were supposed to solve that but then the data showed otherwise. So you're right it's a much bigger problem it's there's a lot of moving parts and pieces. Eric I really appreciate you coming on and learn a lot and hopefully we'll have you back on in 150 days or so

to kind of break down section 301 and 230 all these different sections that are about to be part of our vernacular here in the next three or four months I appreciate you coming on again. Yeah thanks for having me. Thank you so much. Well all right guys hope you enjoyed that conversation with Eric and York you know I'm really interested to see what happens in the next 150 days after the section 122 tariffs expire.

It seems like the Trump administration will have multiple ways to bring back tariffs even though I eat but got struck down so we'll see what happens. Let me know what you guys think drop a comment on Spotify and YouTube and while you're at it considering giving us a five star rating wherever you listen to your podcast all that engagement really does help us out and it helps other people find the show. Thank you guys so much for listening watching and commenting shout out to Mike and Connor for

all the work behind scenes and see you guys back here tomorrow.