Once again lawfare from activist judges strikes as the largely Democratic United States Court of Appeals for the Federal Circuit at Washington, D.C. is upholding a lower trade court’s decision and standing in the way of Mr. Trump’s reciprocal fair trade initiative, which is so central to the president’s economic policy.

I’m the non-lawyer, but it seems to me that the president’s tariff plan has been well received through a series of brilliant deals with allies around the world, who understand the need for a new global trading system that levels the playing field and spurs factory jobs here at home. 

Mr. Trump chose the International Emergency Economic Powers Act as the basis for his tariff diplomacy. 

I think it works to stop drug trafficking, also known as fentanyl. And to stop unfair trading practices where foreign markets are closed to American business, but the powerful American economy is open to those very same unfair foreign competitors. 

Perhaps most importantly, Mr. Trump’s use of the emergency powers act is a key instrument of his foreign policy and his authority as commander in chief should not be denied. 

Mr. Trump seeks to rebalance trade, and bring large scale investment back to America. Every deal has enormous foreign policy implications.

The skyrocketing trade deficit itself seems unsustainable. So, the president is using emergency powers to move as rapidly and urgently as possible. 

Ironically, the trade tariffs have become part of the landscape. 

Deals have been cut satisfactorily. 

Corporations are working through it. The stock market has generally been quite strong. 

There is even some early evidence that American exports are going up, while imports are coming lower. 

Large-scale trade war retaliation never happened. Instead, we got deals. It was never the 1930s. 

Meanwhile, as a byproduct, Mr. Trump’s trade strategy is reaping hundreds of billions in tariff related revenues. 

If the courts have their way, and refunds are necessary, it would be the biggest, most chaotic money swap you’ve ever seen.  

And the Customs and Border Patrol that is nominally in charge wouldn’t be able to handle it. 

Refunds would have to go through the treasury and the IRS to get back to corporations. And those channels are already slogging through one big, beautiful bill.

It’ll be incredibly chaotic. And it’s not necessary.

The emergency powers act gives the president authority to regulate imports. 

And he’s not necessarily doing this on a permanent basis.

Therefore, it is not strictly speaking a tax. 

Taxes are the jurisdiction of Congress. 

Yet this is about trade and evolving foreign relations. 

The matter is likely to go to the Supreme Court, but probably any decision won’t come until next year. 

Meanwhile the tariffs will stay in place and the revenues will grow. 

If not, Mr. Trump can always use the national security section 232, or the unfair trading practices, 301, but those laws will take a lot longer to implement. 

I believe that Mr. Trump will triumph ultimately. He is the president, and the commander in chief. Judges should not keep standing in his way.

From Mr. Kudlow’s broadcast on Fox Business Network.