Yesterday, President Donald Trump announced his gargantuan "Liberation Day" tariffs. They impose 10% tariffs on imports from almost every nation in the world (with the notable exception of Russia), plus additional "reciprocity" tariffs on some 60 additional countries, based on an utterly nonsensical formula that isn't actually about reciprocity at all. If allowed to stand, this will be the biggest trade war since at least the Great Depression (the tariff rates here may actually be even higher than those of the notorious 1930 Smoot-Hawley Tariff, which greatly exacerbated the Depression), and the biggest tax increase on Americans in decades.
Economists across the political spectrum expect the tariffs to cause great harm. As my George Mason University colleague Tyler Cowen puts it, "[w]e will be moving into a future with higher prices, less product choice, and much weaker foreign alliances….. This is perhaps the worst economic own goal I have seen in my lifetime."
The enormous scale of the new Trump tariffs is at the heart of their illegality. In an earlier post, I explained why Trump's earlier use of the International Emergency Economic Powers Act of 1977 (IEEPA) to impose 25% tariffs on Canada and Mexico is illegal and unconstitutional under the major questions and nondelegation doctrines. This much larger abuse of the IEEPA is even more clearly illegal.
As GOP Senator Rand Paul put it, in a speech denouncing the new tariffs: "One person in our country wishes to raise taxes. This is contrary to everything our country was founded upon. One person is not allowed to raise taxes. The Constitution forbids it." Exactly so. The Constitution gives Congress the power to impose tariffs, and the President cannot exercise it without, at the very least, having much clearer congressional authorization than exists here.
The IEEPA gives the president authority to impose various types of sanctions in situations where there is "any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States, if the President declares a national emergency with respect to such threat."
In a recent Lawfare article, international economic policy expert Peter Harrell makes a strong case that the IEEPA doesn't authorize tariffs at all. Even if it does, they can only be used if 1) the president legally declares a "national emergency" and 2) the emergency is over an issue that poses "unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States." Neither of these requirements has been met.
The supposed "emergency" here is the existence of bilateral trade deficits with many countries. By its nature, an "emergency" is a sudden, unexpected crisis. There is nothing new about bilateral trade deficits. They have existed for decades. Moreover, as economists across the political spectrum recognize, they are not actually a problem at all. America's bilateral trade deficit with Canada, Mexico, or the European Union is no more problematic than my trade deficit with my local supermarket: I buy thousands of dollars worth of food there every year; they virtually never buy anything from me!.
Even if courts defer to the president's claim that trade deficits qualify as an "emergency," they still don't count as an "unusual and extraordinary threat." There is nothing unusual and extraordinary about them (again, they have existed for decades), nor do they pose any real threat. Vice President J.D. Vance says the administration is trying to reverse a pattern that has gone on for "40 years." If so, there is no emergency here, and no "unusual and extraordinary threat."
In recent years, the Supreme Court has invalidated a number of executive initiatives under the "major questions" doctrine, which requires Congress to "speak clearly" when authorizing the executive to make "decisions of vast 'economic and political significance.'" If things are unclear, courts must reject the executive's assertion of power.
If Trump's sweeping use of the IEEPA to start the biggest trade war in a century does not qualify as a "major question," I don't know what does. Trump's "Liberation Day" makes even Joe Biden's $400 billion student loan forgiveness plan (which I opposed, and which the Supreme Court rightly invalidated under MQD) seem modest by comparison.
And, it is at the very least, far from clear that the IEEPA authorizes the use of tariffs, that we have an emergency here, or that there is any "unusual and extraordinary threat." If any of these three preconditions are not clearly and unequivocally met, then the major questions doctrine requires the courts to invalidate the tariffs unless and until Congress enacts new legislation clearly authorizing them.
In addition to running afoul of the major questions doctrine, Trump's new IEEPA tariffs also violate constitutional limits on delegation of congressional power to the executive. Even if Congress did clearly authorize these measures, it cannot give away its authority to the president on such an enormous scale. Admittedly, the Supreme Court has long taken a very permissive approach to nondelegation, upholding broad delegations so long as they are based on an "intelligible principle." But, in recent years, beginning with the 2019 Gundy case, several conservative Supreme Court justices have expressed interest in tightening up nondelegation rules.
Moreover, Trump's claims to virtually limitless tariff authority under the IEEPA undermine virtually any constitutional constraints on delegation. If longstanding, perfectly normal, bilateral trade deficits qualify as an "emergency" and as an "unusual and extraordinary threat," the same can be said of virtually any international economic transaction that the president disapproves of for virtually any reason. The president would have the power to impose any level of tariffs on goods or services from any country, pretty much anytime he wants. To borrow a turn of phrase from University of Texas law Prof. Sanford Levinson, this is "delegation run riot." If the courts are going to impose any limits on executive delegation at all, they have to draw the line here.
Finally, it's worth noting the relevance of the longstanding rule of statutory interpretation requiring courts to interpret federal statutes in ways that avoid constitutional problems. As the Supreme Court put it in Crowell v. Benson (1932), "[w]hen the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided." Here it is obvious that it's "fairly possible" for courts to conclude that the IEEPA doesn't authorize tariffs, that there is no genuine national emergency, or that there is no "unusual and extraordinary threat," or that the Trump administration's interpretation of the law violates the major questions doctrine. Any one of these moves can avoid the need to address the constitutional nondelegation issue.
In sum, Trump's new tariff policy is not only horrifically awful, but also illegal on multiple different grounds.
As I have previously noted, the Liberty Justice Center and I are looking for appropriate plaintiffs to challenge this grave abuse of executive power in court (which LJC will represent on a pro bono basis, with me providing assistance, as needed). We have gotten a number of potentially promising contacts, and are guardedly optimistic we will be able to pursue this issue soon.
