Our Amicus Brief in W.M.M. v. Trump - En Banc Fifth Circuit Alien Enemies Act Case
I coauthored the brief on behalf of the the Cato Institute, the Brennan Center for Justice, legal scholars Geoffrey Corn and John Dehn, and myself.
Emergency Powers
The Alien Enemies Act and the Major Questions Doctrine
The Trump administration's claims that illegal migration and drug smuggling qualify as an "invasion" or a "predatory incursion" under the Alien Enemies Act go against the major questions doctrine.
'Emergency' Has Become Washington's Favorite Loophole. It's Cost Taxpayers $15 Trillion.
Over the last decade, roughly one in every 10 dollars of budget authority has worn an emergency tag.
Trump's Tariff Tantrum Proves He Shouldn't Have That Power
The Supreme Court is set to hear arguments in November on whether Trump's use of tariffs is constitutional.
Deference Due? Trump, the National Guard, and the Misuse of Martin v. Mott
A guest post by Joshua Braver and John Dehn.
Fifth Circuit Will Rehear Alien Enemies Act Case En Banc
It will review a panel decision holding that Trump could not invoke this sweeping wartime authority by claiming illegal migration and drug smuggling qualify as an "invasion."
Supreme Court Will Hear Our Case Challenging Trump's Tariffs - and Two Other Related Cases
The cases will be considered on an accelerated schedule.
The Government's Cert Petition to the Supreme Court in Our Tariff Case - and Our Response
We agree the Court should take the case and resolve it as quickly as possible, to minimize the harm caused by the illegal tariffs.
Fifth Circuit Rules Trump's Use of Alien Enemies Act is Illegal
The 2-1 ruling is in line with most previous court decisions on Trump's invocation of the AEA. Judge Oldham wrote an extremely long, but significantly flawed, dissent.
Federal Circuit Rules Against Trump's Massive IEEPA Tariffs in Our Case Challenging Them
In a 7-4 ruling, the en banc court upheld trial court ruling against all the challenged tariffs. The scope of the injunction against them remains to be determined.
After Another Delay, Trump's China Tariffs Look Even Less Like a Legitimate 'Emergency'
The words national emergency are not a magic spell that presidents can utter to unlock unlimited legislative powers for themselves.
Are Trump's Tariffs Responding to an Actual Emergency?
If so, then why postpone any enforcement until October?
My New Dispatch Article on Judicial Review of Emergency Powers
It makes the case for strong judicial review of executive invocations of sweeping emergency powers.
Trump's Trade Deals Won't End the Harm Caused by His Tariffs
In each case, tariffs remain much higher than they were before the deals.
Mark Graber on the History and Original Meaning of the Militia Act of 1903
Graber shows that the act used by Trump to federalize the California National Guard does not allow the president to take this step in response to low-level violence and disorder.
Society for the Rule of Law Webinar on "Tariffs and the Rule of Law"
I participated along with Andrew Morris of the New Civil Liberties Alliance.
Major Orange Juice Importer Files Lawsuit Challenging Trump's Planned Brazil Tariffs
The case raises many of the same issues as our case against Trump's "Liberation Day" tariffs.
Defending the Court of International Trade Ruling Against Trump's Tariffs—A Reply to Estreicher and Babbitt [Updated]
Estreicher and Babbitt are right to conclude that Trump's tariffs violate the nondelegation doctrine, but wrong to reject other arguments against them.
Life as an Academic Defender of the Intuitively Obvious
Academics are supposed to discover nonobvious, counterintituitive truths. But, especially in recent years, much of my work involves defending positions that seem obvious to most laypeople, even though many experts deny them.
Trump's Plan to Impose 50% Tariffs on Brazil Highlights Illegal and Harmful Nature of his Trade Policy
It's an obvious abuse of emergency powers, a claim to unconstitutional delegation of legislative power, and a threat to the economy and the rule of law.
Overview of the Amicus Briefs Filed in Our Tariff Case
The diversity and quality of the briefs opposing Trump's "Liberation Day" tariffs speaks for itself.
Courts Can Check, and Have Checked, Executives' Military Judgment
Katherine Yon Ebright and Leah Tulin of the Brennan Center make the case against judicial deference to Trump's invocation of the Alien Enemies Act of 1798.
Federal Circuit Appellate Brief Filed in Our Tariff Case
Our brief explains why the Federal Circuit should uphold the Court of International Trade decision striking down Trump's "Liberation Day" tariffs.
Federal Court Rules Against Trump's "Invasion" Executive Order
But, notably, the court chose not to rule on the issue of what qualifies as an "invasion."
Using the National Guard in DEA Raids Is the Worst Kind of Drug War Mission Creep
The deployment of National Guard soldiers on a DEA drug raid is a serious test of whether the Posse Comitatus Act means something or not.
Michael McConnell and Neal Katyal Join Our Tariff Litigation Team
They are prominent legal scholars and Supreme Court litigators from opposite sides of the political spectrum.
Trump's Iran Air Strikes and the Constitution
The strikes violate both the Constitution and the 1973 War Powers Act. Whether they are good policy is a more difficult question. This could turn out to be a rare instance where one of Trump's illegal actions has beneficial results.
The Ninth Circuit's Flawed Decision Upholding Trump's Federalization of the California National Guard
The ruling gets several important issues right - and one big one wrong.
How Trump's Imposition of Massive Tariffs is Repeating the "Ship Money" Abuses of King Charles I
Like King Charles, he is abusing emergency powers to impose taxes without legislative authorization.
Federal Court Rightly Invalidates Trump's Illegal Federalization of California National Guard Troops
Trump's policy here is yet another example of abusive invocation of emergency powers.
Federal Circuit Grants Government's Motion for Stay Pending Appeal in Our Tariff Case
It's disappointing. But the court will hear the case on the merits on an expedited basis, and we have a strong case.
Defending the Court of International Trade Ruling Against Trump's Tariffs - A Reply to John Yoo
Yoo's criticisms are off the mark, for a variety of reasons. But, tellingly, he actually agrees Trump's IEEPA tariffs are illegal, merely disagreeing with the court's reasons for reaching that conclusion.
Defending the Court of International Trade Ruling Against Trump's Tariffs - A Reply to Jack Goldsmith
The CIT ruling is much stronger than Prof. Goldsmith contends. The same is true of a related ruling by federal District Court Judge Rudolph Contreras.
The Legal Battle Over the Motion to Stay the Decision Against Trump's Tariffs
This crucial procedural issue is now before the US Court of Appeals for the Federal Circuit. Its resolution will determine whether the tariffs are immediately suspended, or get to continue so long as the case is stil being litigated.
Morning Consult Poll Indicates Judicial Invalidation of Trump's Tariffs is Popular
The poll finds 55% approve and only 30% disapprove of the recent ruling against his IEEPA tariffs.
Michael McConnell on the Tariff Cases and their Significance
A leading conservative legal scholar explains why striking down Trump's IEEPA tariffs is vital to protecting the separation of powers.
Compendium of Writings About the Trump Tariff Case [Updated]
Links to my writings about our case against Trump's "Liberation Day" Tariffs and related issues.
Our Fifth Circuit Alien Enemies Act Amicus Brief
The brief was filed on behalf of the Brennan Center, the Cato Institute, law-of-war scholar Prof. John Dehn, and myself.
Hub and UnPopulist Podcasts About the Tariff Case
The podcasts cover the case and its relationship to the more general problem of abuse of emergency powers.
My New Atlantic Article on the Tariff Case and its Significance
It explains how the ruling is a win for separation of powers and the rule of law.
How Our Tariff Case Came About
The Wall Street Journal, CBC, and Time published good articles on the story behind the case filed by the Liberty Justice Center and myself.
Some Interviews About Our Tariff Case
Some of the more informative interviews I have done about our win in the case against Trump's tariffs, in lawsuit filed by the Liberty Justice Center and myself.
Federal District Court Issues Another Ruling Against Trump's IEEPA Tariffs
The decision by Judge Rudolph Contreras of the US District Court for the District Columbia holds IEEPA doesn't authorize the president to impose tariffs at all.
We Won Our Tariff Case!
The Court of International Trade just issued a decision striking down Trump's "Liberation Day" tariffs and other IEEPA tariffs.
Video of Cato Institute Virtual Event on "Tariffs, Emergencies, and Presidential Power"
I spoke along with my Cato colleague Walter Olson.
The Case Against Judicial Deference to Executive Branch "Factual" Determinations in Alien Enemies Act Cases
Legal scholar Rebecca Ingber offers some strong arguments against deference in this context.
Thoughts on the Oral Argument in the Oregon Case Against Trump's IEEPA Tariffs
Like that in the similar case filed by Liberty Justice Center and myself, this one indicated judicial skepticism of Trump's claims to virtually unlimited power to impose tariffs.
