Twelve States File Lawsuit Challenging Trump's IEEPA Tariffs

The suit resembles previous ones on the same subject filed by the state of California, and by the Liberty Justice Center and myself.

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Today, twelve blue and purple states, led by the state of Oregon, filed a lawsuit in the US Court of International Trade challenging Donald Trump's massive IEEPA tariffs. Their complaint is available here. The arguments advanced by the multistate plaintiffs are similar to those presented in the lawsuit the Liberty Justice Center and I presented in a similar lawsuit filed on behalf of five US businesses severely harmed by the tariffs (also filed in the CIT). They also resembled those made by the state of California in a case filed in federal district court.

Like California and us, the twelve states argue that the International Emergency Economic Powers Act of 1977 (IEEPA) doesn't authorize tariffs at all, and that Trump administration's position runs afoul of constitutional nondelegation rules (though they shy away from the term "nondelegation." I think it might help if they were more explicit in indicating the tariffs also go against the"major questions" doctrine, and that the trade deficits that supposedly justify the "Liberation Day" tariffs are not an "unusual and extraordinary threat" (which IEEPA says must be present to allow use of the law). But perhaps they may go into these issues more fully as the case progresses.

I cover these and other reasons why the Trump IEEPA tariffs are illegal in more detail in my recent Lawfare article, "The Constitutional Case Against Trump's Trade War."

While our lawsuit is limited to the massive "Liberation Day" tariffs, the multistate plaintiffs - like California - also challenge earlier IEEPA tariffs imposed on Canada, Mexico, and China, supposedly justified by the threat of fentanyl smuggling. I argued that these tariffs are also illegal in a February post where I first outlined the idea of challenging IEEPA tariffs under the nondelegation and major questions doctrines.

There are also two narrower lawsuits challenging the Trump IEEPA tariffs: one brought by the New Civil Liberties Alliance (challenging tariffs against China on behalf of an importer), and one brought by members of the Blackfeet Nation Native American tribe (challenging tariffs against Canada). I expect there will be more lawsuits filed by other groups.

We welcome the twelve states to this fight!

It's impressive this issue has united such a diverse array of people and institutions, including the conservatives at the NCLA, libertarians like myself and many of the LJC lawyers I am working with, blue and purple state governments, Native Americans, and a bipartisan group of prominent legal scholars and former government officials.

Trump's tariff power grab has brought us all together. Perhaps he alone could do it!

Comments

[Old Smokin' Egg]

It's unfortunate, though hardly surprising, that the blue-state governments are doing their best to avoid acknowledging the nondelegation and major-questions doctrines. What they're looking for, in fact, is a magic bullet that can be used against Trump's executive orders, while placing no impediment in the way of future Bidens using such orders to impose things like eviction moratoria and student-loan forgiveness.

Similarly, it's a great pity that the D's in Congress can't get together with the saner elements of the Republican party to pass legislation significantly curtailing the power of the President to rule by ukase during states of emergency. Unfortunately, it appears that the partisans of both sides want to preserve those powers for Presidents belonging to their own parties, even at the cost of granting them to Presidents from the opposite side.

[Zarniwoop]

Old Egg:

the blue-state governments are doing their best to avoid acknowledging the nondelegation and major-questions doctrines.

OP:

Like California and us, the twelve states argue that the International Emergency Economic Powers Act of 1977 (IEEPA) doesn't authorize tariffs at all, and that Trump administration's position runs afoul of constitutional nondelegation rules (though they shy away from the term "nondelegation."

Maybe not the strategy I'd employ before the S.Ct., but the OP indicates that nondelegation is the core of that argument.

[Incunabulum]

The problem is the D's are themselves insane or fighting the insane to keep their jobs.

And none of them (on either side of the aisle)want a general curtailment of executive power because the would mean they would they would start having to work for a living.

[MollyGodiva]

This has nothing to do with nondelegation or major-questions doctrines. IEEPA does not authorize Trump to do what he is doing. This is a federal law case, not a constitutional one.

[ReaderY]

Agree. This is a simple matter of statutory interpretation. Nothing constitutional. No fancy doctrines required.

[David Nieporent]

Similarly, it's a great pity that the D's in Congress can't get together with the saner elements of the Republican party to pass legislation significantly curtailing the power of the President to rule by ukase

There are within-rounding-error-of-zero such people in the House GOP caucus who fit your description who also have the political courage to do anything that makes them look less than 150% loyal to Trump.

Perhaps the only way such a law could pass would be if it said that it had an effective date of January 21, 2029.

[Incunabulum]

Well, they're not an 'unusual' threat if for no other reason than the USG has tolerated them for so long.

But by that logic, extending it to firearms, guns banned by the government would always be banable because, by virtue of the ban keeping them out of people's hands, would always remain 'unusual'.

[Zarniwoop]

Hey all y'all who whinge about nationwide injunctions:

Would you be OK with tariffs only applying to imports/exports to/from red states?

Because I'm pretty sure Michigan would LOVE to be able to import car parts that are 25% cheaper than parts sent to Alabama.

Maybe only the blue/purple states who are parties to this suit should get relief from the tariffs. Red states can join the lawsuit if they want, after all.

[David Nieporent]

Would you be OK with tariffs only applying to imports/exports to/from red states?

FTR, tariffs only apply to imports. (See Article I, Section 9.)

[Zarniwoop]

good observation, thanks.

Still radio silence from anyone who thinks "nationwide injunctions are always eeevvviiilll, so Alabama car assembly factories shouldn't get the benefit of Blue/Purple states fighting tariffs that hurt the automotive industry" ...

[Zarniwoop]

Standing! What about standing?

Before the knee-pad wearers whinge about the states lacking standing due to damages being "speculative" - the allegations concern actual dollars (not anti-abortion folks having a fainting spell, per AHM):

That has already occurred. On November 8, 2024, the University of Oregon purchased a cryogenic single-photon counting detector system from ID Quantique, Inc., for its Center of Optics. At that time, the purchase price was $182,733. IDQ shipped the cryogenic
system from Switzerland on April 8. At that time, the additional “reciprocal” tariff scheduled to go into effect for imports from Switzerland was 31 percent. The system arrived after the announced pause, resulting in the lower—but still substantial—10 percent worldwide tariff collected at the port by U.S. Customs and Border Protection. As a result of that additional tariff, the customs broker required the University of Oregon to pay an additional $18,579 before it would deliver the cryogenic system.

Ope, there's standing for a plaintiff. Next?

[JohnSmith97]

When did paying taxes create standing? Oh.. about the time a deep blue state filed suit. What a surprise.

[MollyGodiva]

This brief outlines why IEEPA does not authorize Trump to do what he is doing.

https://libertyjusticecenter.org/wp-content/uploads/Stamped-Motion-and-Brief.pdf

[Dan Schiavetta]

The Framers, mature men who had sacrificed a great deal, and put themselves in great personal danger, did not consider the possibility of a child as President. Such was surely the world of monarchies (e.g., Richard II.)

[David Nieporent]

They did, but they mistakenly envisioned that the Electoral College would prevent it.

[ReaderY]

That’s because they mistakenly assumed that the Supreme Court would abide by the Constitution as they wrote it and in particular would not totally eviscerate both the Electoral College’s power to act independently as a body in an emergency (Chiafolo v. Washington) and state legislatures’ power to weed out undesirable Presidential candidates through their power to limit who can be appointed an Elector (Trump v. Anderson). These two decisions, taken together, completely destroyed the Electoral College’s power to act as the check on demagogues the Framers had intended, and rendered the Electoral College nothing but a meaningless rubber stamp.

The Framers gave the people only limited power and put checks on that power. They distrusted giving the People unlimited power in the same way they distrusted giving anyone else unlimited power. Current events suggest that not only was eviscerating those checks completely illegitimate from a constitutional originalist perspective, it suggests the current Supreme Court is not necessarily any wiser in its oracular pronouncements than the Framers.

[Sisyphus Rocks]

I was broadly convinced by Ilya's arguments as to why the Liberation Day tariffs were not legal under the supposedly authorizing statute or the Constitution. The administration wisely suspended all but one of them for 90 days.

However, the one tariff increase they didn't suspend was against China, and China might be in a different situation than all other countries at least as to statutory authorization under the IEEPA. Why? Because China violated the Phase One agreement regarding trade and tariffs negotiated in the last Trump administration, and violated in 2021. Certainly, there are arguments as to why that doesn't constitute an emergency and that tariffs aren't permitted statutorily under the IEEPA, but there may be non-frivolous counterarguments as to why China's ongoing breach of their prior trade agreement constitutes a gradually increasing emergency, particularly in relation to their escalating threat to Taiwan, and punitive tariffs amounting to near sanctions might be appropriate in light of that emergency.

That could leave a court assessing the Major Questions Doctrine as to the power of the President to use a statute that arguably authorizes tariffs in emergency circumstances (it almost certainly allows sanctions, after all) in a situation where the President's foreign policy powers are directly implicated. Suddenly, that's not nearly as easy a call as the rest of the Liberation Day tariffs are.

Regardless of where you might assess the China tariffs coming out, we should all agree that this mess is at least partly Congress's fault for delegating powers it should never have delegated in the first place. So many of our problems over the last few Presidencies really come down to Congress not doing its job and shirking any difficult decision making as much as possible.