My New Lawfare Article on Why "The President Doesn't Have Unlimited Power to Impose Import Bans"
Many of the same constitutional and other constraints apply as with tariffs.
Nondelegation
My New Montreal Economic Institute Paper on "The Legal Battle Over Trump's Tariffs: Implications for Canada"
The paper provides an overview of the legal vulnerabilities of the Trump tariffs against Canadian goods, and what can be done to prevent a recurrence of his abuses.
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.
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.
Our New Federal Circuit Amicus Brief in the Section 122 Tariff Case
The brief explains why the Section 122 tariffs are illegal and run afoul of the major questions and nondelegation doctrines.
Trump Expands Illegal Section 338 Tariffs Against Canadian Imports - and Bans Some Entirely
The move further escalates this harmful and illegal trade war with a vital ally.
Trump Keeps Pushing Legally Dubious Tariffs
The president's latest round of broad import taxes, like the previous two, treats his statutory authority as an afterthought.
Second Lawsuit Challenging Trump's New Section 301 Tariffs Filed
It was filed by several businesses, including Learning Resources, Inc., which was also involved in the IEEPA tariff litigation.
Liberty Justice Center Files First Lawsuit Challenging Trump's Massive New Section 301 Tariffs
The complaint explains why the tariffs violate the requirements of Section 301, and also run afoul of the major questions and nondelegation doctrines.
Trump Imposes Massively Harmful and Illegal Section 301 Tariffs
The new policy is based on sham investigations, and runs afoul of the major questions and nondelegation doctrine.
Here Are Some Ways SCOTUS Can Constrain Federal Agencies That Are Now Subject to Trump's Untrammeled Control
The Supreme Court has "no shortage of tools" to enforce the separation of powers, Justice Neil Gorsuch notes. "The only real question is whether we will use them."
Can Trump v. Slaughter be Used to Challenge the Continued Legality of Executive Agencies Congress Intended to be Independent?
If the laws requiring such agencies to be independent are unconstitutional, it may be that very existence of those agencies is also now illegal.
The Supreme Court's Badly Flawed Ruling in the Haiti TPS Case
Extensive evidence indicates that the decision to end Temporary Protected Status for Haitian migrants was motivated by unconstitutional racial and ethnic discrimination. The Court's ruling on statutory issues also has flaws.
The Courts Should Rein in Trump's Proposed Section 301 Tariffs as Well
A guest post by Georgetown legal scholar Peter E. Harrell.
Federal Circuit Stays Enforcement of Ruling Against Trump's Section 122 Tariffs
The ruling is flawed on both substantive and procedural grounds.
Trump's Dubious New Section 301 Tariffs
They appear to be yet another illegal power grab, one that should be challenged in court.
US Court of International Trade Rules Against Trump's Section 122 Tariffs
The 2-1 decision concludes Trump's massive new tariffs are illegal because there is no "balance of payments deficit" of the kind needed to authorize them.
Rethinking Conservative Approaches to Executive Power
Conservative legal commentator Gregg Nunziata outlines reasons why conservatives should reject broad views of executive power.
Thoughts on Today's Oral Argument in the Section 122 Tariff Cases
The outcome is unclear. But the judges seemed skeptical of the Trump Administration's claims that Section 122 grants them sweeping tariff powers.
Our Amicus Brief in the Section 122 Tariff Case
I submitted the brief on behalf of the Cato Institute and myself.
Twenty-Four States Led by Oregon File Lawsuit Challenging Trump's Section 122 Tariffs
The massive new tariffs are illegal, just like the IEEPA tariffs previously invalidated by the Supreme Court.
The Role of Delegation Theories in Deforming the Constitution
The Supreme Court's approaches of assuming agency authority to issue legislative rules and of prohibiting Congress from delegating to itself have resulted in an enormous transfer of power to the Executive.
Society for the Rule of Law Podcast About the Tariff Decision
Gregg Nunziata interviewed me.
Thoughts on the Potential Broader Significance of the Supreme Court's Tariff Decision
Only time will tell how great the impact of the ruling will really be. But, at this point, it seems like a very significant decision.
My New Dispatch Article on the Tariff Decision, its Implications - and a Key Issue the Court Did Not Resolve
The Court stopped a massive presidential power grab, but did not resolve a crucial issue about judicial review of executive use of emergency powers.
Supreme Court Decides Our Tariff Case - and We Won!
In a 6-3 decision, the Court ruled that the International Emergency Economic Powers Act does not authorize tariffs.
Nondelegation and the Limits of Agency Authority After Consumers' Research and Loper Bright
A recent Federalist Society Teleforum with Adam White and Ilan Wurman
Trump's Plan to Seize Greenland is Simultaneously Evil, Illegal, and Counterproductive
It would alienate allies, impose US rule on an unwilling population, and blatantly violate both US and international law. The plan to impose tariffs on nations opposing the seizure is also illegal and harmful.
Trump's Cruel and Illegal Expanded Travel Ban
A recent White House proclamation further expands his previous travel bans, to the point of barring nearly all legal migration from some 40 countries. Legally, it further underscores that Trump is claiming virtually unlimited executive power to restrict immigration,a claim that runs afoul of the nondelegation doctrine.
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.
The Justices Are Skeptical of the Trump Tariffs, But Are They Skeptical Enough to Strike Them Down?
Some observations from yesterday's argument in Learning Resources v. Trump.
US Chamber of Commerce Files Lawsuit Challenging Trump's $100,000 H-1B Visa Fee
This is the second lawsuit challenging the policy, which is both illegal and likely to cause great harm if allowed to stand.
Lawsuit Challenges Trump's $100,000 H-1B Visa Fee
The case was filed yesterday by a broad coalition of different groups, including a health care provider, education groups, religious organizations, and labor unions.
Trump's Harmful and Illegal Plan to Gut H-1B Visas by Imposing $100,000 Fees
The plan violates the relevant visa law. If allowed to stand, it would significantly harm productivity and innovation.
House Republicans Just Voted To Give Even More Tariff Power Away to Trump
House Republicans passed a resolution that prevents Congress from ending the national emergency Trump is using to impose tariffs until March 31.
Supreme Court Will Hear Our Case Challenging Trump's Tariffs - and Two Other Related Cases
The cases will be considered on an accelerated schedule.
Why the Supreme Court Might Uphold Trump's Tariffs
The Administration's arguments have more doctrinal support than some might think
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.
Today's Federal Circuit Oral Argument in Our Tariff Case
Outcomes are hard to predict. But the judges seemed skeptical of the administration's claim that the president has virtually unlimited power to impose tariffs.
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.
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.
Appeals Court Briefs Say Trump's Tariffs Are Based on a Statute That Does Not Authorize Tariffs at All
The Cato Institute and the New Civil Liberties Alliance urge the Federal Circuit to extend the logic of a decision against the president's far-reaching import taxes.
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.
A Flawed, but Encouraging Nondelegation Decision
The Supreme Court may have reached the wrong result in FCC v. Consumers Research. But ruling emphasizes there are significant constitutional limits to legislative delegation to the executive.
My New Just Security Article on the Nondelegation and Major Questions Doctrines
It explains how these much-maligned doctrines can be valuable tools for constraining power grabs by presidents of both parties.
