The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
President Trump's New Tariffs Are Unconstitutional
They violate the major questions doctrine set forth by the Roberts Court and must be stopped by a nationwide injunction.
I have agreed with President Trump on most policy questions, and I defended him ardently against the despicable campaign of lawfare waged against him by former President Biden and by the Left more generally. I greatly admire the President and believe strongly that the President has the power to remove all federal officers and employees who do not either work for Congress or for the Article III federal courts. I will defend in amicus briefs his power to fire FTC commissioners, NLRB commissioners, Inspectors General, and civil service personnel.
I must, however, respectfully disagree with President Trump's imposition of sweeping tariffs, which are huge tax increases, this week because I think he lacks the statutory and constitutional authority to raise tariffs in the way and to the degree he has done. Under Article I, Section 8, Clause 3, it is Congress that has the power to regulate commerce with foreign nations and not the President, and under Article I, Section 8, Clause 1, it is Congress and not the President that has the power to impose duties, imposts, and excises—better known as taxes.
The American Revolution was fought over the principle that there should be "no taxation without representation." While the President does represent the American people, Congress represents them as well. The Constitution gives Congress and not the President the critical voice in the imposition of taxes on the importation of goods.
While Congress has delegated substantial discretion to the President to raise tariffs when there are emergencies, which Congress may do under U.S. v. Curtiss-Wright Export Corporation, 299 U.S. 304 (1936), the tariffs, which President Trump has imposed, especially this week, raise "the major question" of whether tariffs on this scale ought to be imposed as: (1) a big source of the federal government's revenue (partly replacing for this purpose the income tax), or (2) in response to currency manipulation or (3) in response to the inclusion in the price of foreign goods of value added taxes or (4) to deal with the types of emergencies, which President Trump's new tariffs are said to be imposed to address. The supposed emergencies of currency manipulation or the burying of value added taxes in the price of foreign goods, which President Trump has pointed to, have existed for many decades—yet during that time no such tariffs were announced or thought to be necessary. Congress has never addressed these "major questions," and until and unless Congress approves of such taxes/tariffs, the President lacks the power to impose them.
Congress has frequently delegated to the President the power to impose reciprocal tariffs when another nation restricts American exports unfairly. It has never delegated to the President the power to answer the major public policy question as to whether our system of taxation should finance the government to a greater degree through tariffs than through income taxes, which are far less of a burden on the middle class and the poor than are tariffs. Moreover, Congress has long been aware of the phenomenon of currency manipulation and the burying of value added taxes in the price of foreign goods, yet it has never delegated to the President the power to impose tariffs to counter those phenomena.
The foreign affairs emergencies where Congress has delegated power to impose tariffs, or sanctions, are those like Russia's invasion of Ukraine, or Iran's effort to develop nuclear missiles. Congress has known of the "emergency" of the erosion of America's manufacturing base for decades, and yet Congress has ratified many free trade deals with Canada, Mexico, Central America, and South Korea. It is simply implausible as a matter of statutory construction for President Trump to interpret the word "emergency" in federal law as encompassing the erosion of our manufacturing base—just as it was implausible for President Biden to interpret the term pollutant as including carbon dioxide in his attempt to use his presidential power to enact national climate change rules.
In recent years, the Supreme Court has on several occasions, and particularly during President Biden's Administration, struck down executive branch and presidential action based on vague statutory authority addressing "major questions" that only Congress has the power to address. The "major questions doctrine" is a commonsense approach to statutory interpretation, not a canon of statutory construction. The Roberts Court has only formulated the "major questions doctrine" in recent years, and it has not yet applied it in the context of foreign affairs, but there is no inherent reason why the doctrine ought not to apply in that context where Congress's core powers to tax and to regulate foreign commerce are implicated. In my opinion, no President has the legal authority to raise tariffs in the way, and on the scale, in which President Trump has done.
The "major questions doctrine" was deployed by the Roberts Court to stop President Biden from doing an end run around Congress by: (1) imposing unilaterally hugely expensive climate change rules without congressional approval; (2) requiring all workplaces to make their employees get Covid shots without specific congressional approval; (3) declaring a nationwide moratorium on the eviction of renters by property owners because of Covid without getting congressional approval; and (4) excusing billions of dollars in unpaid student loan debt without getting congressional approval. These Supreme Court decisions striking down unilateral White House lawmaking were correct, and they are based on a correct earlier precedent that the Food and Drug Administration cannot regulate cigarette use on the ground that nicotine is a drug.
These decisions all reflect the commonsense idea that there are some matters that are just so important that Congress must decide them. There is a reason why Article I, which addresses congressional power, is so much longer than is Article II, which addresses presidential power. The Framers thought and wanted for all of the truly big policy choices to be made by Congress subject to a presidential veto.
While it is true that presidents have broad emergency powers, especially in time of war, there are nonetheless limits even to that power, as President Truman found out when the Supreme Court held that he could not on his own nationalize the steel industry to avert a strike during the Korean War. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). Justice Robert Jackson in that case wrote that the President's powers to deal with foreign powers emergencies are at their weakest when Congress has delegated to the President a power in one context, but not in another. Here, Congress has delegated to the President the power to impose sanctions on Russia and Iran for real foreign policy reasons, but it has not delegated the power to impose tariffs because of the erosion of our manufacturing base. The grant of power in the one instance makes quite telling the lack of a grant of power in this instance. Notwithstanding my agreement with President Trump on many matters, the tariffs/taxes he just announced are in my opinion unlawful.
The New Civil Liberties Alliance (NCLA) has just filed a federal lawsuit challenging the constitutionality of President Trump's new tariffs, Emily Ley Paper, Inc v. Trump (N.D. Fla.), on behalf of plaintiffs who import goods from China and are directly harmed by the unlawful tariff/taxes. The District Court should enter an immediate nationwide injunction suspending the Trump tariffs, and the Supreme Court should hold those tariffs/taxes to be unconstitutional as soon as possible.
