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The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
Supreme Court Refuses to Block Lower-Court Ruling Against Trump's Mail-in Ballot Executive Order
The decision was 7-2.
Earlier tonight, the Supreme Court, in a 7-2 ruling, refused to stay a lower-court decision blocking the Postal Service's policy implementing Donald Trump's executive order intended to curb mail-in voting. I have previously written about the First Circuit ruling in this case, and about how Trump's order is a blatant assault on federalism and separation of powers.
As is often the case with "shadow docket" decisions, the majority opinion offers almost no analysis. But they do state that "[t]he Government is unlikely to succeed on the merits of its challenge to the District Court's preliminary injunction [against the USPS policy]." That indicates they believe that Trump's policy is indeed illegal, likely for reasons similar to those outlined by the district court and the First Circuit.
In a concurring opinion, Justice Brett Kavanaugh states that he thinks "there is at least a fair prospect that the final rule falls within the Postal Service's statutory authority," but that the district court was still right to block it, under the Administrative Procedure Act "because state and local election officials do not have sufficient time to reasonably implement the rule before the elections."
In a dissent joined by Justice Thomas, Justice Samuel Alito argues that the policy is within the authority of the USPS, but bases it on statutes that nowhere mention altering mail-in ballot election rules, but only authorize USPS to make rules for the collection and delivery of the mail. Alito largely ignores the massive federalism and separation of powers issues arising from conflating the latter with the former. In addition, as the district court and the First Circuit noted, twisting this language into a sweeping power to override state mail-in ballot rules raises serious "major questions doctrine" issues.
As the District Court noted, Congress must speak clearly when delegating a "highly consequential power" to the executive, and the power to rewrite state election rules is pretty obviously highly consequential. and, to put it mildly, the statutes granting authority to the USPS come nowhere near clearly giving it such power. Indeed, they don't even mention voting rules.
To put it a different way, inferring a power to regulate mail-in voting from a power to make rules necessary for the delivery of the mail is a classic example what Justice Antonin Scalia famously called "hid[ing] elephants in mouseholes," warning courts to avoid assuming Congress did that. The Trump administration claims there is a truly enormous elephant in a very tiny mousehole here. The Court was right to reject that position.
Chief Justice Roberts Goes Postal on Trump's USPS Rule
Neither Snow Nor Rain Nor Heat Nor Gloom Of Night Will Stop The Shadow Docket.
This evening, the Court finally decided United States Postal Service v. California. Very often, the procedural posture of a case is described as tortured. This posture is torturous for everyone involved. Here, I'll offer a few high-level thoughts.
First, the majority opinion, perhaps to its credit, offers two sentences of analysis.
The Government is unlikely to succeed on the merits of its challenge to the District Court's preliminary injunction. And the equitable factors applicable for obtaining emergency relief from this Court do not favor a stay.
I say perhaps, because the Court reaches out to decide the merits on the emergency docket without any analysis. Justice Alito, joined by Justice Thomas, offers a thorough analysis of why he thinks the government wins on the merits. Justice Kavanaugh agrees with Justice Alito on the merits. The majority couldn't be bothered to say anything more than a sentence. This stay application has been pending on the docket for about eight days, but this issue has been percolating for months. Surely, Chief Justice Roberts could have whipped up a few sentences to explain why Trump loses. He made up a few such sentences in the ballroom case. But that isn't what's important here.
All the Court had to write to deny the stay was that the equities did not favor emergency relief. Those are the grounds on which Justice Kavanaugh ruled. But the Chief Justice didn't want this case to come back, so he reached the merits. If there is no need to decide more, the Court should not decide more. Except when Trump is involved. That was the lesson from this past term. Regrettably, Justices Gorsuch and Barrett joined the Chief's drive-by shooting of Trump's policy.
Second, let's turn to Justice Kavanaugh. It seems clear he will deny any application that urges sudden changes to election rules before the election. That was the lesson from his instant denials from the Missouri cases. At least he's consistent. I think there were serious questions about whether the litigants from Missouri had appellate standing. Likewise, in the postal case, Justice Alito points out there are serious questions about standing. But on the emergency docket, when the equities are strong enough, the Court can just ignore standing. Where is Justice Barrett, the Court's proceduralist on all these matters?
Third, there are only three votes for Trump on the merits here. Why did Justice Kavanaugh bother signaling his vote? In case after case, Kavanaugh finds a way to rule against Trump while saying he would rule for him if the facts were different. It's very strange. Indeed, it's almost the opposite of Roberts. Kavanaugh, having ruled that the equities cut against Trump, has no reason to say which way the merits go. If Roberts and Kavanaugh were on the same wavelength eight years ago, now they are quite at odds when push comes to shove.
Fourth, it is curious why Alito and Thomas said nothing in the Missouri cases. I thought of a passage from Mollie Hemingway's excellent new book on Justice Alito:
Around the Court, Alito's chambers are seen as the "Green Berets," an elite unit that improves any position it enters. The justice often uses military lingo, explaining to his clerks, for example, that "I don't think we need to take point on that one" means "it's not worth sticking our neck out on that issue."
I guess it was not worth Alito sticking his neck out in Missouri, especially since Kavanaugh was locked in and the issue would not return to the Court. But Alito thought it was worth taking point in the postal service case, especially since the litigation would continue in the lower courts.
Fifth, Justice Alito (as noted above) raises some important issues concerning standing.
To begin, the District Court issued a nationwide injunction based on claims asserted by several plaintiff organizations that likely lack standing. These organizations first claim a direct organizational injury because the rule supposedly thwarts their ability to educate members about voting. Yet this theory of injury is based on "'a setback to the organization's abstract social interests'" and an effortto "spend its way into standing simply by expending money to gather information and advocate against the defendant's action[s]." FDA v. Alliance for Hippocratic Medicine, 602 U. S. 367, 394 (2024).
Justice Gorsuch has made it his life's mission to root out offended observer standing and related doctrines, such a diversion of resource standing. Where is he on this issue? And Justice Barrett? AHM was a terrible decision, but the Court should apply it consistently on the right and the left.
Sixth, Justice Alito blames Justice Jackson, in part, for the delay:
Not only was the Government subject to months of premature litigation and a series of injunctions that this Court later determined were likely issued without jurisdiction, the Government had to wait nearly another full month for this Court to issue its decision so holding. Indeed, this Court spent from late July to the end of August drafting nearly 40 pages of opinions, including two dissents, despite the Government's public notice that it would not publish a final rule while subject tothe injunctions, see 91 Fed. Reg. 44880, and its representation that it had a strong interest in issuing its rule in early- to mid-August to allow time to implement it. The plaintiffStates cannot claim the timing of the rule tilts the equities in their favor when they, and courts hearing their claims, are responsible for so much of the delay.
The reference to the 40 pages of opinions is a direct rebuke to Justice Jackson's "Kafkaesque nightmare." The Court should have just summarily ruled on the earlier version of the case so the fully ready case could come back to the Court. But the Chief Justice did not push the matter. He was content to let Justice Jackson take all the time in the world to write her dissent, and then claim the government loses on the equities, because not enough time would be left. You see why I am so hard on the Court. When they want to move quickly, they move quickly. When they want to take their time, they take their time. Much of the criticism of the emergency docket neglects to consider why different cases take different time. The Court is stacking the deck.
Seventh, the Trump Administration may have made a mistake by (repeatedly) rushing this case to the Court (over and over again). Maybe the safer posture would have been to litigate this case on a regular pace before the 2028 election. But I don't pretend to understand the different considerations that go into rushing these issues. Ultimately, the government got only three votes on the merits, and in the process, set a precedent that these sorts of rules are subject to APA review. On the whole, this was a lot lost for nothing gained.
New Book on "Democracy's Challenges: 100 Ideas"
Now available online for free, from NYU Press. I am one of many contributors.
Democracy's Challenges: 100 Ideas is a new book published by New York University Press, and edited by Robert Bauer, Samuel Issacharoff, Richard Pildes, and Rosa Po. It includes 100 short chapters on how to improve American democracy, written by experts from a variety of disciplines, and representing a wide range of views. I am one of the contributors. And, thanks to a grant from NYU, it's available for free! You can download it here. The individual chapters are also available separately at the NYU Democracy project website.
Other contributors include prominent scholars and commentators, such as VC co-blogger Jonathan Adler (William and Mary), Randall Kennedy (Harvard), Samuel Moyn (Yale), Andrew McCarthy (National Review), Molly Reynolds (Brookings Institution), Rick Hasen, John McGinnis (Northwestern), Julia Azari, Aziz Huq (Chicago), Robert George (Princeton), and many more.
My own contribution is "Strengthen Democracy by Empowering People to Vote with their Feet." Here's an excerpt:
The Brief "Contained False Testimony from Wholly Fabricated Witnesses"
From the New Mexico Supreme Court last week in State v. Sandoval, via Ars Technica (Jon Brodkin):
WHEREAS, Respondent acknowledged to the Court in his written response and oral argument that he used the generative artificial intelligence (AI) tool ChatGPT in the preparation of the brief in chief he filed with the Court;
WHEREAS, Respondent admitted to the Court that the brief in chief contained false testimony from wholly fabricated witnesses—Officer Michelle Amarillo, Officer Sanchez, Manal Al-Jibury, and Teresa Marquez; false testimony from Danny Stanton that he received threats, which he took seriously, from Defendant-Appellant; false testimony from Linda Stanton about the threats her husband received; false testimony from Mariah Chavez and Teresa Marquez (fabricated witness) regarding the shooter's clothing and appearance; and misrepresented legal authority in State v. Lopez, 2005-NMSC-018, 138 N.M. 9, 116 P.3d 80 and State v. Manus, 1979-NMSC-035, 93 N.M. 95, 597 P. 2d 280;
WHEREAS, Respondent admitted to the Court that he did not verify the factual claims and legal authority in his AI-generated brief before signing it and filing it with the Court, and that he did not inform his client of this failure or that the brief in chief contained multiple factual and legal misrepresentations;
Journal of Free Speech Law: "Forced Unanimity and the First Amendment," by Frank LoMonte
Part of a Knight First Amendment Institute Symposium on Managing Government Employee Speech in a Democracy, which the Journal is publishing.
The article is here; the Introduction:
If you purposefully set out to concoct a government policy guaranteed to be unconstitutional, here is how you would do it. You would impose a restraint that forbids people from expressing viewpoints on contested political issues that dissent from the government's official position. And you would justify the restraint by arguing that, if the citizenry were given the whole truth, they might think less of the government.
This restraint doesn't exist in the fever dream of a constitutional law professor writing a final exam. It's real. It's called a "one board" or "one voice" policy, and it appears to be commonplace at school boards, college trustee boards, and other government policymaking bodies across the United States.
These policies typically provide that members of elected or appointed governing bodies are forbidden from expressing disagreement with the body's majority position once an issue has been voted on. The rationale for them is simple: to create the impression that the board is united—even if the unanimity is feigned.
To cite just one example, school districts across the Flint, Michigan, area reportedly enforce regulations that forbid elected school board members from "publicly sharing their opinions on any school district issues," requiring board members to submit any questions they receive to the district superintendent. At the higher education level, Michigan State University recently demanded that its publicly elected trustees accede, under threat of discipline, to a code of conduct that forbids sharing any information with the public or press without permission, part of a package of restrictions that is overtly intended to dampen dissent within the often-fractious board. Similar constraints have been imposed by elected or appointed governing boards throughout the country.
Libel Suit Against Book Publisher by Doctor Accused of Performing Unnecessary Gynecological Procedures on Immigration Detainees Can Go Forward
From Judge Maragaret Garnett (S.D.N.Y.) in Amin v. Spiegel & Grau LLC:
Plaintiff is Dr. Mahendra Amin, a gynecologist who performed medical services on some patients detained at an immigrant detention center. Defendant is Spiegel & Grau LLC, a publisher. Plaintiff alleges that Defendant published a book containing false and defamatory statements about him and about his work as a doctor at the detention center….
Defendant argued its statements were a "fair report" of documents in a government proceeding, but the court declined to deny the case on these grounds:
As Defendant's counsel conceded on the record at the April 28 Conference, the fair report privilege is contextual and depends on whether a reader would understand that a statement refers to the background or findings of a proceeding. Plaintiff complains of several paragraphs in the book, including the below:
On September 14, 2020, in a footnote to President Donald Trump's unconscionable treatment of migrants, a nurse named Dawn Wooten, who worked at the Irwin County Detention Center in Ocilla, Georgia, filed a whistleblower complaint. She said that Dr. Mahendra Amin—the center's leading doctor who was not even a gynecologist—allegedly told nearly eve1y woman who went to see him that she had to have a hysterectomy. Wooten referred to him as a "uterus collector."
Defendant argues that the paragraph is covered by the fair report privilege because it either summarizes a whistle blower complaint, which precipitated a congressional investigation, or is corroborated by a congressional investigation. This argument ignores that the whistleblower complaint did not allege either that Plaintiff was "the center's leading doctor" or "was not even a gynecologist," which are among the statements that Plaintiff alleges were false or defamatory. Indeed, the whistleblower complaint reported that the detention center "sen[t] many women to see a particular gynecologist outside the facility," seemingly a reference to Plaintiff. Therefore, the statements that Plaintiff was the center's leading doctor and not a gynecologist cannot be reasonably interpreted as mere reporting on the whistleblower complaint.
Our New Amicus Brief in the Section 301 Tariff Case
The Cato Institute, Michael McConnell, and I filed an amicus brief in litigation challenging Trump's massive Section 301 tariffs, which use "forced labor" as a pretext for sweeping protectionism.
The Cato Institute, Stanford law Prof. Michael McConnell and I recently filed an amicus brief before the US Court of International Trade, in litigation challenging Donald Trump's massive Section 301 tariffs. Michael McConnell is one of the nation's leading experts on executive power, a prominent conservative originalist constitutional law scholar, and was our lead counsel in the Supreme Court phase of the case that led to the invalidation of Trump's IEEPA tariffs. It is an honor to work with him again.
Here's a summary of our brief, which I prepared for the Cato website (which will also post the brief soon):
In February 2026, the Supreme Court invalidated the massive tariffs that President Trump attempted to impose under the International Emergency Economic Powers Act (IEEPA). But that decision did not end Trump's efforts to unilaterally impose onerous tariffs. He has sought to recreate sweeping tariffs using other statutes. Most recently, he has sought to impose massive 10-12.5% tariffs on imports from sixty US trading partners, using Section 301 of the Tariff Act of 1974. The new tariffs were enacted under the pretext of combatting goods produced by "forced labor." Two groups of small businesses and 25 state governments, led by the state of Oregon, have filed lawsuits in the US Court of International Trade challenging the legality of the Section 301 tariffs.
Cato, Professor Michael McConnell, and Professor Ilya Somin, our B. Kenneth Simon Chair in Constitutional Studies, have filed an amicus brief opposing the new Section 301 tariffs. McConnell is a law professor at Stanford University, a former federal appellate judge, and served as lead counsel for the victorious plaintiffs in the Supreme Court phase of the IEEPA tariff case. Somin previously served as co-counsel in the same case. We thank Joshua Claybourn, and Daniel Wolff, Alexander Schaefer and others at Crowell & Moring for assistance in drafting and filing the brief.
Part I of our brief explains that Section 301 grants limited authority to impose tariffs in response to specific "unreasonable or discriminatory" government policies by "a foreign country" that "burden[] or restrict[] United States commerce." It is not a blank check for whatever tariffs the executive branch may want to impose against dozens of countries around the world.
Part II outlines why, if there is any ambiguity about whether Section 301 authorizes these massive tariffs, the major questions doctrine requires that the issue be resolved against Defendants. That doctrine obliges Congress to "speak clearly" when it assigns to the executive "decisions of vast 'economic and political significance.'" The impact of these massive Section 301 tariffs is as large or larger than most policies previously invalidated by the Supreme Court on major questions grounds. And the tariff power is not exempt from major questions scrutiny on the supposed ground that it is a "foreign affairs" power.
Part III shows that if Section 301 did grant the President the power he claims, it would violate the nondelegation doctrine, which constrains transfer of legislative power to the executive. If Defendants' interpretation of Section 301 is correct, the Office of the United States Trade Representative (USTR) can impose unlimited tariffs on virtually any imports from any country at any time. Such a sweeping delegation of a core congressional power would violate the requirements that (1) Congress not make "boundless" delegations of the power to tax, and (2) that "[t]he 'guidance' needed is greater when an agency action will 'affect the entire national economy' than when it addresses a narrow, technical issue."
The full brief is available here.
I previously wrote about the Section 301 tariffs and why they are illegal in this Dispatch article. Cato and I also recently submitted an amicus brief in the related Section 122 tariff case, which is currently before the US Court of Appeals for the Federal Circuit.
The 9 Libel-by-AI Cases in the U.S. Since 2023 (6 Still Going Forward)
- Walters v. Openai, L.L.C. (Ga. Super.): No liability (summary judgment), because of the peculiar facts of the case.
- Battle v. Microsoft Corp. (D. Md.): Sent to arbitration, and resolved there.
- Starbuck v. Meta Platforms (Del. Super.): Settled.
- Keene v. Google LLC (N.D. Ill.): Motion to dismiss denied, case can go forward.
- Starbuck v. Google (Del. Super.): Motion to dismiss denied, case can go forward.
- LTL LED, LLC v. Google LLC (Minn. Dist.): Case going forward, Google failed to properly get the case removed to federal court.
- Murray v. Alphabet Inc. (D. Utah): Complaint filed, case in progress, no judicial action so far.
- Grybniak v. Google LLC (D.P.R.): Complaint filed, case in progress, no judicial action so far.
- Grybniak v. X.AI LLC (D.P.R.): Complaint filed, case in progress, no judicial action so far.
For a case that alleges false and reputation-damaging hallucinations but that doesn't include a defamation claim, see Doe v. OpenAI Found. (Cal. Super. Ct.); there also hasn't been judicial action there.
Federal Court Allows Libel-by-AI Claim (Brought by Protagonist of Apple TV's Black Bird Series) to Go Forward
From today's decision by Judge Thomas Durkin (N.D. Ill.) in Keene v. Google LLC:
Keene is an author, television producer, and former FBI operative. In 1997, he pled guilty to conspiracy to distribute drugs and was sentenced to ten years in prison. In exchange for a pardon, Keene agreed to work with the FBI as a prison informant to help gather evidence against suspected serial killer Larry Hall. Hall was ultimately convicted, and Keene's conviction was expunged. Keene published a memoir recounting this experience that was subsequently adapted into an Apple TV miniseries titled "Black Bird."
Keene alleged that, from May 24 to June 27, 2025, at least four Google "AI Overviews" said false things about him:
- Keene was "serving a life sentence without parole for multiple convictions."
- He was "serving a life sentence without parole for the murders of three women."
- He "was convicted of drug trafficking."
- He was "serving a life sentence without parole in Butner, North Carolina."
The first three overviews were allegedly responses to a search for "Jimmy Keene net worth," and the fourth to a search for "Is Jimmy Keene still alive."
Each AI Overview cited a Wikipedia page as the source of the information and provided a link to that page. However, the Wikipedia page did not contain the false statements in the AI Overviews. AI Overviews 1 and 2 were seen by various family members, friends, and acquaintances.
Keene complained to Google about the false statements on three occasions: May 27, 2025, May 31, 2025, and after June 27, 2025. Google allegedly apologized to Keene after each complaint and deemed the statements errors made by its Artificial Intelligence.
Keene sued, and the court allowed the case to go forward as to AI Overviews 1, 2, and 4 (with one minor procedural twist as to AI Overview 4 that I'll mention below). The court held that Keene had sufficiently alleged that an ordinary reader would have understood the statements as factual assertions:
Police Department May Decline to Release Names of Officers Trained by ICE
"[T]he Department submitted credible evidence that threats, doxxing, and other forms of harassment have been directed toward law enforcement charged with enforcing existing federal immigration laws."
From In the Matter of Darney v. Carroll Township Police Dep't, decided Aug. 31 by the Pennsylvania Office of Open Records, affirming a police department's "redact[ing] officers' names from certain training certificates" released in response to a Right-to-Know Law request for a police department's "287(g) agreement" with ICE:
Section 708(b)(1)(ii) of the RTKL exempts from disclosure a record that "would be reasonably likely to result in a substantial and demonstrable risk of physical harm to or the personal security of an individual." To establish that this exemption applies, an agency must show: (1) a "reasonable likelihood" of (2) "substantial and demonstrable risk" to a person's security. "Reasonably likely" has been interpreted as "requiring more than speculation."
Under the RTKL, one method an agency may use in meeting the burden of proof that a record is exempt is a testimonial affidavit, which if "found to be relevant and credible may provide sufficient evidence in support of a claimed exemption." Such "affidavits must be detailed, nonconclusory, and submitted in good faith." No evidence has been presented to show that the Department acted in bad faith, and therefore the averments in the Department's attestation should be accepted as true.
Here, [Chief of Police Thomas] Wargo Attests that the Department provided nine responsive training certificates. Further:
Oklahoma Judge's Ruling Contained AI Hallucinations
From Reuters (Mike Scarcella) last week, linked to yesterday by David Lat (Original Jurisdiction):
The judge, Lawrence Wheeler of the District Court of Stephens County, told an investigator with the Oklahoma State Bureau of Investigation that he used OpenAI's ChatGPT for research, and that an order he drafted contained two citations to cases that do not exist, according to an August 17 letter from a prosecutor to the state attorney general's office….
According to the August 17 letter, [DA Jason] Hicks recused himself from investigating Wheeler and asked Oklahoma State Attorney General Gentner Drummond to review the Oklahoma State Bureau of Investigation's report or reassign the inquiry.
Drummond's office in its statement on Wednesday said its criminal division "thoroughly reviewed" the claims and was not pursuing them further.
The initial report came in The Oklahoman (Nolan Clay); it's paywalled, but here's a brief excerpt:
The OSBI also looked into allegations "that Judge Wheeler offered to amend the order in exchange for a dismissal of a writ seeking relief from the Oklahoma Supreme Court" and that he "eavesdropped on jury deliberations," the DA disclosed in the letter.
Today in Supreme Court History: September 14, 1901
9/14/1901: President Theodore Roosevelt is inaugurated. He appointed three members to the Supreme Court: Justices Oliver Wendell Holmes, Rufus Day, and William Henry Moody.
Open Thread
What’s on your mind?
Major Questions, Nondelegation, and the Section 338 Tariffs Against Canada
Why the major questions and nondelegation doctrines bolster the legal case against Trump's Section 338 tariffs.
I have previously written about Trump's harmful and illegal imposition of Section 338 tariffs against various Canadian imports, and his recent expansion of those actions to include categorical bans on some Canadian products. In this post, I will explain how the legal case against these actions is bolstered by the major questions and nondelegation doctrines.
Section 338 was part of the infamous Smoot-Hawley tariff act of 1930, which gravely exacerbated the Great Depression. There is a strong case that Trump's Section 338 tariffs are illegal both because Section 338 (which has never been used previously) was superseded by later legislation, and because Trump's tariffs do not meet the textual requirements of Section 338. On the former point, see this 2025 Volokh Conspiracy guest post by Philip Zelikow of the conservative Hoover Institution. On the latter, see this excellent guest post by Georgetown University trade policy experts Peter Harrell and Jennifer Hillman.
But assume it is unclear whether Section 338 has been superseded and whether the Trump tariffs on Canadian imports meet the requirements emphasized by Harrell and Hillman: that Section 338 tariffs must be in response to foreign trade polices that "discriminate" against US goods, and must "offset" those discriminatory policies. In that event, the major questions doctrine (MQD) weighs against Trump's position.
MQD requires Congress to "speak clearly" when authorizing the executive to make decisions of "vast economic and political significance." It played a major role in litigation against Trump's massive International Emergency Economic Powers Act (IEEPA) tariffs. Bot the US Court of Appeals for the Federal Circuit (which has jurisdiction over all US tariff cases), and three Supreme Court justices struck down those tariffs in large part based on MQD.
Under the administration's interpretation of Section 338, it can be used to impose virtually unlimited tariffs against goods from almost any trading partner, so long as that government imposes any restrictions at all on American imports. They would not have to be meaningfully discriminatory, and the Section 338 tariffs would not have to be "offsetting" in the sense of closely calibrated to the trading-partner restrictions they are supposed to be countering. That kind of sweeping discretion over tariffs creates an obvious major question, inasmuch as it gives the president vast power over the US and world economies. And that power would not be limited to just US-Canada trade, though even the latter is extremely important, given that Canada is one of our biggest trading partners and the two economies are closely intertwined in many ways.
Trump's recent expansion of Section 338 restrictions further accentuates the "major" nature of the issues at stake. He has now used Section 338 to ban some imports entirely, as opposed to "merely" imposing tariffs. Under the administration's interpretation of Section 338, the power to embargo goods would also be nearly unlimited, so long as the trading partner in question imposes at least some constraints on US imports, and doesn't lift them in response to initial Section 338 actions. And, as the analyses by Zelikow and Harrell and Hillman show, it is at the very least far from clear that Section 338 is still in force, and that it gives Trump the sweeping power he claims.
If courts conclude that Section 338 does somehow authorize Trump's actions, even in spite of MQD, they should strike it down under the nondelegation doctrine, which limits delegation of legislative power to the executive. As the Supreme Court emphasized in the IEEPA case, tariffs are a congressional power, not an executive one. Thus, they are, subject to nondelegation restrictions. The power to ban imports entirely is also a congressional power, part of the authority to regulate international commerce.
The Supreme Court's nondelegation precedent is far from a model of clarity. But last year's decision in FCC v. Consumers' Research held that delegations of the power to impose taxes (including, presumably, tariffs) must have a clear floor and ceiling and that "[t]he guidance needed is greater when an agency action will affect the entire national economy than when it addresses a narrow, technical issue." There is no meaningful floor or ceiling to Trump's interpretation of Section 338. And the authority claimed by the administration is obviously one that affects the "entire national economy."
As the Supreme Court emphasized in the IEEPA case, the president is not supposed to have the power to "impose tariffs on imports from any country, of any product, at any rate, for any amount of time." Trump's approach to Section 338 would give him exactly that. Since the Supreme Court issued that decision, Trump has repeatedly tried to use other legislation to achieve the same sweeping power: Section 122 of the Trade Act of 1974 (invalidated by the US Court of International Trade, though the case is on appeal), Section 301 of that same act (the issue is now being litigated), and now Section 338. Courts should continue to reject these power grabs.
So far, there have not been any cases filed challenging the Section 338 tariffs. I hope that will soon change. And, when it does, the plaintiffs should make sure to make major questions and nondelegation arguments, in addition to other points.
Today in Supreme Court History: September 13, 1810
9/13/1810: Justice William Cushing died.
Open Thread
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Judge Sutton on "The Three Faces of American Constitutional Law"
This year's Sumner Canary Memorial Lecture at the Case Western Reserve University School of Law.
This past Wednesday, Jeffrey Sutton, Chief Judge of the U.S. Court of Appeals for the Sixth Circuit, delivered the annual Sumner Canary Memorial Lecture at the Case Western Reserve University School of Law on "The Three Faces of American Constitutional Law."
The lecture drew upon some of Judge Sutton's scholarship and writing on the significance of state constitutional law, and how that can influence federal constitutional law.
During his remarks, Judge Sutton also discussed the Supreme Court's most recent term, and its handling of challenges to Trump Administration policies. This portion of his remarks were covered by Bloomberg:
The US Supreme Court's record on cases involving Donald Trump shows the conservative supermajority isn't in lockstep with the Republican president, the Sixth Circuit's outgoing chief judge said. . . .
Sutton . . . called the court's last term "so remarkable" in the face of a president exercising a "fairly aggressive" amount of power.
He noted the administration lost several times at the court. . . .
It "makes me proud to be a lawyer and proud to be a judge," Sutton said, because he can "guarantee" the administration would've won the cases it lost if those matters were put to the Republican-controlled Congress.
"The insight is, well, whatever these Republican appointees are doing, you can't call it pure politics, because if it was pure politics, they would act just like the Republican Congress," the judge said.
"There's something judges are doing, even in this moment where we're skeptical of the Supreme Court, skeptical of federal judges, maybe state judges. They're still doing something that you have to call different from party and elected politics," Sutton added.
As longtime readers know, I was a member of the CWRU law faculty for twenty-five years and, during much of that time (2008-2025), I curated the Canary lecture series. It is good to see the tradition continues. Prior Canary lectures are indexed here.
