From today's decision in U.S. v. Gendron, by Judge Richard Sullivan, joined by Judges Joseph Bianco and Alison Nathan:
Payton Gendron killed ten Black people in Buffalo, New York in an effort to spread racial hatred and incite violence. A grand jury subsequently indicted him on twenty-seven counts of (i) committing hate crimes resulting in death or involving an attempt to kill, in violation of 18 U.S.C. § 249(a)(1)(B); (ii) discharging a firearm to commit murder, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i), 924(c)(1)(A)(iii), and 924(j)(1); and (iii) using and discharging a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i) and 924(c)(1)(A)(iii).
The government sought the death penalty on the "discharging a firearm to commit murder" charges, filing a notice of intent that listed various statutory aggravating factors justifying such a punishment. That notice also included, as relevant here, three non-statutory aggravating factors: (i) the effect of Gendron's crimes on the surviving victims; (ii) Gendron's racist motive for the shooting; and (iii) Gendron's hope of provoking further violence.
The district court struck all three of these factors. It concluded first that the government could not point to the surviving victims' injuries because only the shootings resulting in death constituted capital crimes. It then found that 18 U.S.C. § 3593(f), which bars juries from "consider[ing] the race" of capital defendants or their alleged victims, prohibited the government from arguing Gendron's racist motive as an aggravating factor. Finally, it held that the First Amendment protected Gendron's statements about his goal of inciting further violence and that the incitement aggravator unconstitutionally punished Gendron's speech.
Any person, or agent or officer thereof, who, after having discharged an employee from the service of such person or after an employee has voluntarily left such service, by any misrepresentation prevents or attempts to prevent the former employee from obtaining employment, is guilty of a misdemeanor.
Mead v. Bev. Hills Unif. School Dist. (Cal. Super. Ct. June 24, 2026)—a civil case—concluded that this covers any employees as agents, and can cover publishing material on YouTube, on the theory that "members of the public" who can view the material "would also include prospective employers." (Cal. Labor Code § 1054 makes § 1050 violations civilly actionable as well as criminally punishable.)
The fact pattern was that Mark Mead, a school district director of school safety, alleged that Carey, a journalism teacher, manipulated video of Mead to purport to show that he was choking a student. Mead was fired, and then sued the school district and Carey for defamation and related claims. The court allowed the § 1050 claim to go forward, and in the process it interpreted § 1050 in a way that would mean criminal punishment in such a situation would be allowed as well.
"What happened after October 7 in our sacred institutions, at our universities, in our Western media outlets, in our international NGOs and nonprofits, is that we completely forgot the ways that we had learned to tell truth from fiction."
Over the past three years, the rise of anti-semitism has come as a surprise to many. It shouldn't have. The groundwork for this resurgence of the oldest hatred has been laid by elite institutions for generations. October 7, 2023, was merely the spark that rekindled the conflagration.
We all owe a debt of gratitude to Judge Roy K. Altman (SDTX) who has made it his mission to teach the world, and the legal profession in particular, about the scourge of antisemitism.
Judge Altman was kind enough to answer some of my questions, which are now published in Civitas Outlook.
Here is an exchange about the false dichotomy between anti-semitism and anti-zionism.
JB: There is a common argument: the protestors are not anti-Semitic, they are anti-Zionist. How would you explain the distinction between these concepts?
RA: There is no distinction. In the 1800s, there was Jew hatred that was all over Europe. It was very prevalent, and it was uncomfortable for much of the ruling class. They said, "The Jews are bad but we don't want violence in our society. We've moved past that, we're much more sophisticated than that."
Wilhelm Marr came up with the idea of giving Jew hatred a different name, so that it would seem more anodyne, less violent, and less hateful than it was. He came up with this idea of anti-Semitism. It was more sophisticated, it was intellectually based, and it wasn't inappropriate, because it wasn't Jew hatred. Anti-semitism wasn't violence based on race; it was based on intellectual and philosophical disputes about a people and the people's role in the broader society.
Well, we're just doing the same thing over again now. Anti-Semitism over time became untenable because the Holocaust showed that, as anodyne as you wanted to make it, and as intellectual as you wanted to make antisemitism seem, ultimately antisemitism was just a word that came to represent the Jew hatred that had always existed and percolated in society. The Holocaust brought to the fore just how violent that Jew hatred, whether it's called antisemitism or something else, can really be.
Now we've come up with a new word. We're not really talking about Jew hatred; we're not really talking about antisemitism. Let's give it a new intellectual name, anti-Zionism. It's just hatred of Zionists, not Jews. In fifty years, once it becomes clear that anti-Zionism, like anti-Semitism, led to the rape and murder of hundreds or thousands or millions of Jews, then we're going to come up with a different word, right? Because we're going to say, okay, yeah, we realize anti-Zionism also brought the violence of Jew hatred to the fore; let's call it something else, maybe we'll call it anti-Abrahamism, or whatever, but again, it's just the same thing. You're putting lipstick on a pig. You're calling it a word that's new, that to your mind is an anodyne word, an innocuous word to label something that we all know is an ancient hatred.
The fact of the matter is that over fifty percent of the world's Jews live in Israel, and about ninety percent of the world's Jews view Zionism and the existence of the state of Israel as an integral part of their Jewish identity. So, as a practical matter, the two things are co-extensive. The Jews who are not Zionists, who are anti-Zionist, are a tiny fraction of the population, even though they have an outsized voice in our academic institutions. As a practical matter, to hate Zionists is to hate Jews. As a matter of law, we don't allow you to say in a jury selection process, "I'm going to exclude all the people with dreadlocks and who like a certain kind of music." We're not going to allow you to do that, because we know that's a proxy for black people, and we're not going to allow you to exclude black people on the ground that you used a different proxy, a different word.
Well, here we're doing the same thing; we're saying we're going to exclude from our civic organizations, from our literary clubs, we're going to block from our campus protests, our rallies, and our classrooms people who are ninety percent of whom we know are Jewish. That doesn't work. It doesn't work with black people, it doesn't work with any other group of people, and it cannot work with Jewish people.
And here is an explanation of why he chose to write his new book, Israel on Trial.
RA: I wrote the book not as a judge, but as an American who loves this country. I honestly believe that the country is built on our ability to tell truth from fiction. Alexis de Tocqueville came in the 1830s, and he looked around. He said it's not just that they have these institutions; it's that they've built a virtuous populace. By being virtuous, they can be free. The essence of being virtuous and free was this ability to make the right choices. The government wasn't going to tell us which choices to make, but it trusted us to make choices that were beneficial to the whole. We had all kinds of training grounds for practicing how to be a good, free, and virtuous people. One of those, of course, was the jury system.
People say to me all the time, "Oh, juries don't know what they're talking about; they don't know antitrust law; they don't know patent law. How are they going to make these important decisions for our society?" First, I think they're wrong. I think juries get it right much more often than you would think. Second, that also misses part of the point of why the jury system is important. The jury system isn't just an algorithm for getting to what is "the right answer." The jury system was a real-life practice ground, a training ground for us to become a free people. It taught us how to make important and momentous decisions for ourselves in some of the most important cases and disputes in our society.
What happened after October 7 in our sacred institutions, at our universities, in our Western media outlets, in our international NGOs and nonprofits, is that we completely forgot the ways that we had learned to tell truth from fiction. We had begun to buy lies that were being pushed on us by our geostrategic adversaries, not just Hamas, obviously, but the Muslim Brotherhood through Al Jazeera, the Chinese Communist Party through TikTok, and other channels.
I took it upon myself to travel around the country to figure out how this is happening to us. In the course of those travels, I had thousands of conversations, many of them with people who see the world, frankly, differently than I do, but I came to recognize that their entire debate about Israel, and really the entire debate about America and its relationship with Israel, was driven by six main claims that people believe about the Jewish state. I have two pieces of good news: one, they're all false, and two, they're all, at their core, legal claims.
[1.] [Texas] H.B. 18 … imposes requirements on DSPs [Digital Service Providers]…. With the exception of its age-verification requirement, H.B. 18 applies only to DSPs whose digital service "connects users in a manner that allows users to socially interact with other users on the digital service," "allows a user to create a public or semi-public profile for purposes of signing into and using the digital service," and "allows a user to create or post content that can be viewed by other users of the digital service," including via a message board, chat room, or other "landing page, video channel, or main feed that presents to a user content created and posted by other users."
{H.B. 18 exempts from its coverage state and local government websites, financial institutions, medical websites, small businesses, higher education websites, employee management software, school education software, and e-mail and direct messaging services that provide only those services. H.B. 18 also exempts digital services that "primarily function[ ] to provide a user with access to news, sports, commerce, or content primarily generated or selected by the [DSP]" and provide only incidental social functions.}
H.B. 18's monitoring and filtering requirement mandates covered DSPs to develop and implement a strategy to prevent known minors' exposure to "harmful material" and other content "that promotes, glorifies, or facilitates" "suicide, self-harm, or eating disorders"; "substance abuse"; "stalking, bullying, or harassment"; and "grooming, trafficking, child pornography, or other sexual exploitation or abuse." "Harmful material" is defined with reference to its definition in the Texas Penal Code [to refer to obscene-as-to-minors sexually themed material]….
[2.] Consistent with other courts of appeal, we have interpreted Section 230 to provide DSPs with "broad immunity" from "all claims stemming from their publication of information created by third parties." … Building on Doe v. MySpace, Inc. (5th Cir. 2018), where we had previously held that Section 230 "shielded MySpace from negligence liability for publishing communications between a minor and an adult who later sexually assaulted her," in Free Speech Coalition, Inc. v. Paxton (5th Cir. 2024), we held that an age-verification requirement for pornographic websites was different, and not preempted, because it did not pertain to "immuniz[ing] web service providers from harm caused by unremoved speech on their website," which is "the point of Section 230."
We distinguished between liability "reliant on the harm done by third-party content," which is preempted by Section 230, and "liability purely based on whether plaintiffs comply with the statute," which is not. "[T]he nature of Section 230's protections," we observed, is "to protect a provider from speaker-liability stemming from the speech it hosts." …
Nanjing Intermediate Court: False AI-Generated Statement that a Lawyer Was Sentenced to Three Years' Imprisonment Constituted Defamation …
The court distinguished between ordinary search suggestions and AI-generated answers. While search suggestions such as "related searches" were not found infringing, the court found that the relevant "AI Smart Answer" content was generated through Baidu's AI processing and synthesis of text and images.
The case is significant because the court still found Baidu liable despite its arguments regarding AI hallucination and technological limitations.
[T]here's a far worse outcome from this that cannot be undone by courts, elections, or policy reversals. These new tariffs and their justifications have only served to further destroy the relationships with allies and trading partners that we had previously taken as given. The costs of this will outlast every tariff schedule, court ruling, and this administration. They won't show up on BLS reports, BEA analyses, or Fed surveys. But they will be felt by every single American for years to come….
Canada, the European Union, the United Kingdom, and Mexico now face 10 percent tariffs for their alleged forced labor practices. Canada and Mexico are, of course, also parties to the USMCA, a trade agreement that this very president negotiated, signed, and called "a colossal victory" only to then walk away from. That same week, the President hit Canada with an additional 50 percent tariff on goods ranging from "wine to hockey sticks to cement" regardless of whether or not those goods qualify under the USMCA.
So in the span of a week, the White House effectively told Canada, our closest trading partner and ally, that America's word means nothing and then told them that they are complicit in forced labor.
An ordinary tariff is a tax. Trading partners are annoyed, sometimes retaliate, and sometimes negotiate. These tariffs are different. We didn't just tax Japanese goods. We announced to the world, as an official finding of the United States government, that Japan is profiting from slavery and needs to be punished for it. Norway, Switzerland, Australia, the United Kingdom, and South Korea are guilty of this, too. Then we set a penalty that just so happens to approximate the Section 122 tariffs that just expired.
Foreign officials must now contend with an even clearer reality: not only is an agreement with the United States not worth the paper it's printed on, but we will accuse you of horrendous practices if it means that an administration can re-impose tariffs. Our trading partners saw that the findings of investigations will be written to fit the desires of an administration instead of the facts on the ground. They learned that not only is America protectionist but that they will publish a serious moral accusation against a friend when doing so is politically convenient.
This changes how other countries will deal with us going forward.
Hebert goes on to explain how, as a result of this decline in US reputation and trustworthiness, foreign trading partners will be less willing to make agreements with us. Similarly, businesses and investors there will be less willing to trade with the United States, lest their commitments be disrupted whenever the current occupant of the White House feels like it.
I would add there is an additional way in which courts are limited in their ability to fix this problem: the judicial process moves relatively slowly. And a great deal of damage can be inflicted in the meantime. During the course of the IEEPA litigation, I had multiple conversations with business people that went something like this:
Business Owner: It's great you're challenging the tariffs. But when is your case finally going to be resolved?
Ilya: It's actually moving at a fast pace, by the standards of the federal judiciary.
Business Owner: That's no consolation to me. I'm losing money every day!
The US Court of International Trade, the Federal Circuit, and the Supreme Court all indeed considered decided the case substantially faster than usual practice. Nonetheless, the litigation took over ten months, during which the government collected some $166 billion in illegal tariff payments, and the US and world economies suffered serious damage. And we are still not done with the process of refunding the illegal tariff payments.
In addition to lost sales caused by higher prices, businesses and investors were hurt by the uncertainty over what the tariff schedule would be going forward, which made it difficult to plan ahead. And that uncertainty may well continue so long as there is fear that the president can impose massive new tariffs whenever he feels like it, after which it may takes months of litigation to overturn them. This is another cost of undermining the rule of law by letting one man's whims dictate the tariff schedule, and thereby control a massive part of the economy.
Nonetheless, the courts and Congress are not as helpless in the face of this problem as Hebert suggests. First, the very fact that illegal tariff power grabs get invalidated (even if too slowly) creates some stability. If people know any such imposition will likely only last a few months, that affects expectations and planning. Uncertainty can be further reduced if the courts continue to rule the right way, and write strong opinions signalling that future tariffs will face tight judicial scrutiny.
Second, as I have emphasized previously, courts can reduce the damage caused by illegal tariffs if they refuse to stay initial rulings blocking them. In that event, illegal tariffs will only be in effect for a few weeks, as opposed to many months. Moreover, refusing to stay initial injunctions sends a signal that the initial ruling is likely to be sustained on appeal, further reducing uncertainty.
When the Federal Circuit stayed the initial ruling against the IEEPA tariffs, that enabled the Trump administration to collect some $166 billion in illegal tariff payments, and greatly increased the harm caused by the illegal policy. Courts should learn from that mistake, and not repeat it (though the Federal Circuit, sadly, did choose to repeat it in the Section 122 case).
Congress could do still more. Ideally, it should just repeal all those statutes that give the president discretionary authority to impose tariffs: Section 122, Section 232, Section 301, and so on. All should go! Basic Economics 101 shows that tariffs are almost never a good way to address problems. While Trump has pushed these authorities far beyond their proper legal bounds, they are pernicious even when used as Congress intended, and the statutory text permits.
Repeal is far from impossible, politically. Trump's tariffs have become highly unpopular. More generally, survey data and experience going back to the nineteenth century show that public opinion can be turned against tariffs when reminded that they increase prices. For those reasons, the majority opinion is likely to support a serious effort to abolish the statutes that make them possible. Though it may be more difficult to overcome the resistance of interest groups that benefit from protectionism. It can't happen while Trump is still in the White House, able to veto repeal legislation. But a more trade-friendly president could well be elected in 2028.
Even if discretionary tariffs are abolished, Congress would still retain the ability to impose tariffs by enacting new laws. It could also still simply ban importation of some types of goods (as it currently does with those produced by forced labor). But US trade would no longer be at the mercy of any one person's whims.
If complete abolition of discretionary tariffs is impossible, Congress could at least reform any remaining delegations of tariff authority to 1) confine them to a narrow set of circumstances, and 2) eliminate judicial deference to executive determinations that the required circumstances actually exist. Make the government bear the burden of proof.
Even if all this were done, a malicious, ignorant, or stupid president could still try to impose illegal tariffs. But businesses and trading partners could confident that his efforts would have no legal effect, and would be swiftly invalidated by courts. He could still make bogus accusations of complicity in forced labor. But allies and trading partners would know his rants will likely have little effect. A rogue executive could still do some damage to US trade policy and credibility. But far, far less than is possible today.
From the opinion Thursday in Williams v. State, by Indiana Court of Appeals Judge Felix, joined by Chief Judge Tavitas and Judge Bradford:
Although "[t]rial records are rarely if ever perfect," Ben-Yisrayl v. State, 753 N.E.2d 649, 662 (Ind. 2001), the Transcript in this case is far from the best.
The Transcript contains various types of errors. There are numerous typos that change the meaning of the testimony, question, or objection. See, e.g., Tr. Vol. II at 137:18, 144:10, 147:10; Tr. Vol. III at 6:13. In some instances, witnesses' and trial attorneys' names are reported incorrectly. Tr. Vol. II at 220:5; Tr. Vol. III at 142:15–20, 143:15, 162:4–5.
At one point in the Transcript, a motion, presumably made by the State, is attributed to the trial court. Tr. Vol. II at 107–08. At another point, an objection, presumably made by Williams, is attributed to the Bailiff. Tr. Vol. II at 177:15. At yet another point, the State's closing argument is attributed to the trial court. Tr. Vol. III at 228:1.
There appears to be an academic consensus that the Supreme Court's decision in Louisiana in Callais is incorrect. But does this tell us more about the decision or about the legal academy? Brian Fitzpatrick raises this question in a SCOTUSBlog essay "The Case for Callais."
Fitzpatrick's essay begins:
This publication has been inundated with essays by academics critical of Louisiana v. Callais, but has not published a single one in defense of it. So I decided to take it on in my column. After all, I am pretty sure Justice Antonin Scalia would have approved of the decision.
As you will see, I didn't find the assignment particularly difficult. Which raises a question: why has no one else been willing to defend a 6-3 decision of the Supreme Court?
On Thursday, I noted an interesting footnote in Senior Circuit Judge Ray Randolph's dissent in Hospital Menonita de Guayama v. NLRB (an interesting decision in its own right), suggesting that the Supreme Court's decision ending Chevron deference in Loper Bright Enterprises v. Raimandofailed to account for the fact that Chevron had not been an APA case, but was rather governed by the judicial review provisions of the Clean Air Act. But is this so?
An astute reader pointed me to another footnote--this one from a law review article by Professor John Duffy--suggesting that at the time Chevron v. NRDC was decided, the issue from the Court was, in fact, governed by the APA. In FN19, Professor Duffy writes:
Some scholarship suggests that the Chevron case itself was not subject to section 706 because subsection (d) of section 307 of the Clean Air Act (42 U.S.C. § 7607(d)) contains an explicit exemption making section 706 inapplicable. See, e.g., Jack M. Beermann, Chevron Is a Rorschach Test Ink Blot, 32 J.L. &POL. 305, 307–08, 307 n.8 (2017) (stating that "[j]udicial review of EPA rules under the Clean Air Act is governed by 42 U.S.C. § 7607(d) and not by APA § 706"). The relevant provision, however, exempts from section 706 only EPA actions listed in section 307(d)(1), which at the relevant time included fourteen categories of EPA actions, none of which covered the EPA rulemaking being reviewed in the Chevron litigation. See 42 U.S.C. § 7607(d)(1)(A)–(N) (1982). In fact, at the time it was promulgating the final rule challenged in Chevron, the EPA itself analyzed the applicability of subsection (d) of section 307 and correctly determined that rules being promulgated were "not subject to Section 307(d)." Requirements for Preparation, Adoption and Submittal of Implementation Plans, 46 Fed. Reg. 50766, 50770 (Oct. 14, 1981) (codified at 40 C.F.R. pts. 51–52).
So perhaps Judge Randolph spoke too soon.
This is an interesting dispute, but it does not have much bearing on Loper Bright Enterprises. Judge Randolph's point was raised by the petitioners (see, e.g,, the oral argument transcript at p. 87), and the substance of judicial review under 42 U.S.C. § 7607 is not materially different from that under APA § 706 (though there are important procedural differences for rulemakings).
While Chevron made no reference to the APA, the Chevron doctrine was understood to apply to APA cases, so whether the doctrine comports with the APA mattered--a point Judge Randolph concedes. The Court's decision in Loper Bright rejected the Chevron methodology--in particular the requirement that courts defer to reasonable agency interpretations of ambiguous statutory language--not its interpretation of the Clean Air Act or its conclusion that the EPA regulation at issue was permissible.
In my last post, I did a brief overview of the new lawsuit challenging Trump's massive new Section 301 lawsuits filed by the Liberty Justice Center on behalf of two small businesses. LJC is the public interest law firm I worked with on V.O.S. Selections v. Trump, the IEEPA tariff case decided by the Supreme Court in February. There is now a second lawsuit challenging the tariffs, Learning Resources, Inc. v. United States. Their complaint is available here.
This case was filed by a group of several businesses, with Learning Resources, Inc., as the lead plaintiff. Learning Resources, which is a toy manufacturer, is the same firm whose case was consolidated with ours in the IEEPA litigation, and eventually gave its name to the Supreme Court decision. In that instance, their case was dismissed on jurisdictional grounds (it was, the justices decided, filed in the wrong court) and ours prevailed. In the present case, everyone agrees the only possible venue is the US Court of International Trade (CIT), where we filed our IEEPA case, and which also recently ruled against Trump's Section 122 tariffs (in another case brought by LJC). Trump's tariffs are making the CIT's workload great again!
As in the IEEPA litigation, Learning Resources is represented by prominent appellate litigator Pratik Shah, and others at Akin Gump.
The issues raised in the Learning Resources complaint are very similar to those in the LJC case. They too argue that the Section 301 tariffs violate statutory requirements, and that if Section 301 did grant the president the power to impose these massive tariffs, it would violate the constitutional nondelegation doctrine. But, unlike the LJC complaint, this one does not invoke the major questions doctrine. It also does not seek a class action certification. Thus, relief granted by the court would likely be limited to the specific plaintiff firms.
I think it likely that CIT will consolidate these two cases and consider them together. There may well be more Section 301 cases filed by businesses, public interest groups, and possibly state governments. We shall see.
A Delaware trial court has denied Google's motion to dismiss, and concluded that, if the facts as alleged by Starbuck were true, he would have a legal basis for recovery.
[A.] In Delaware Superior Court Judge Meghan Adams today in Starbuck v. Google LLC, Starbuck alleged that Google AI had stated that
"Starbuck had been accused of sexual assault and sexual harassment by multiple women."
"Starbuck's nanny accused him of abuse and neglect."
"Starbuck had been accused of rape of a minor."
"Starbuck had stolen valor by claiming he was served in the military when he had not."
"Starbuck had engaged in abusive behavior toward multiple women, including a fictitious ex-wife."
"Starbuck was involved in the January 6, 2021 riot on the Capitol."
"Starbuck had been accused of stalking and harassment by multiple women, including his fictitious ex-wife, leading to restraining orders and criminal charges."
"Starbuck had been criminally convicted for violating a restraining order."
"Starbuck posed an unacceptable level of risk to children due to his (fictitious) 'confirmed criminal record.'"
"'… Robby Starbuck sexually abused a young woman when she was a teenager in the early 2000s, while she was in a youth group Starbuck was associated with.'"
"Starbuck had worked in the adult film industry and had used his power and influence therein to pressure performers into uncomfortable scenes, engaged in financial exploitation, and had been accused of a non-consensual sexual act with a woman."
"Starbuck had a criminal record that included a 2001 conviction for assault as well as other charges including drug use and disorderly conduct."
"Starbuck shot a man in the leg with a 9mm handgun, was charged with a felony, and pled guilty to reckless endangerment."
(Note that "Google does not contend the Outputs are true.")
Google moved to dismiss, which under Delaware's Rule 12(b)(6) requires that Google show that, even the facts as pleaded by the plaintiff were conceivably true, the plaintiff would still lack a legal claim. Note that Delaware civil procedure doesn't follow federal procedure in requiring a showing of plausibility of the pleaded facts—it only requires a showing the pleaded facts are conceivable: "Our governing 'conceivability' standard is more akin to 'possibility,' while the federal 'plausibility' standard falls somewhere beyond mere 'possibility' but short of 'probability.'"
[B.] The court concluded that Starbuck "pleads sufficient facts indicating the Outputs were published to third parties," relying in part on Google AI's own statements about what happened:
Today, the Liberty Justice Center filed Burlap & Barrel, Inc. v. Greer, the first case challenging Donald Trump's massive new Section 301 tariffs. The complaint is available here. LJC is the same group that I worked with on V.O.S. Selections v. Trump, the IEEPA tariff case decided by the Supreme Court in February. LJC also filed one of the two cases challenging Trump's Section 122 tariffs, which prevailed in the US Court of International Trade in May (it is now on appeal).
The current case is before the US Court of International Trade. LJC's clients are two small businesses who import goods from many of the countries covered by the new tariffs.
I am not directly involved in the Section 301 case. But I completely support it, and commend LJC for getting it in so quickly. I know from personal experience how hard it can be to do this on short notice.
Commentators such as Peter Harrell, Scott Lincicome, Gregory Shaffer and Jeremiah May, and myself have previously laid out a variety of reasons why the Section 301 tariffs are illegal. I summarized them in my post yesterday. The LJC complaint makes many of these same points. To briefly summarize it argues:
1. The Section 301 tariffs violate many of the procedural and substantive requirements of the statute; Trump is trying to turn a law intended to target specific trade practices into a tool for waging a massive worldwide trade war against virtually all our trading partners, using "forced labor" as a pretext.
2. This runs afoul of the major questions doctrine (MQD), which requires Congress to "speak clearly" when authorizing the executive to make "decisions of vast economic and political significance." If it is unclear whether Section 301 grants Trump the sweeping authority he claims, MQD requires resolving the ambiguity against the administration.
3. If Section 301 somehow does grant Trump the authority he claims, the law is unconstitutional under the nondelegation doctrine, which limits delegation of congressional power (here, the tariff authority) to the executive.
4. The constitutional avoidance canon requires interpreting Section 301 to reject the administration's position. This canon requires courts to interpret federal laws to avoid constitutional problems whenever it is "fairly possible" to do so. Here, doing so is needed to avoid a massive nondelegation issue.
Not surprisingly, I agree with all four of these arguments, and I will likely have more to say about them later.
Another notable aspect of the lawsuit is that the plaintiffs are seeking class action certification. If it is granted, and they prevail on the merits, the ruling will completely block the Section 301 tariffs with respect to virtually all importers, not just LJC's two clients.
I think it likely there will be additional lawsuits challenging the Section 301 tariffs. I hope to write more about these issues soon.
UPDATE: LJC has a helpful statement summarizing the case here.
