From Stanford Prof. Michael McConnell on the Tariff Decicions

Prof. Michael McConnell at the Stanford Law School, a leading constitutional law scholar (and former Tenth Circuit judge), passed this along, and I'm delighted to be able to post it:

Two courts now have ruled that President Trump did not have authority to impose new tariffs on foreign imports under the International Economic Emergency Powers Act of 1977 (IEEPA).  The government has already announced an appeal. The Federal Circuit granted an administrative stay and ordered briefing by June 9. The tariff litigation is shaping up as the biggest separation of powers controversy since Steel Seizure.

A few comments (with the caveat that I was co-author and signatory on an amicus brief in support of the challengers):

[1.] The two courts both concluded that the President has no power under IEEPA to impose tariffs in response to balance of trade problems, and one court ruled, additionally, that President Trump lacked power to imposed tariffs in response to fentanyl trafficking. (For the remainder of this post I will discuss only the former holding.) It is important to stress that the decisions were not based on any criticism of the President's reasons for imposing the tariffs, but went to the existence of a power to do so.

The Court of International Trade (CIT) emphasized the relation between IEEPA and the Trade Act of 1974, holding that the specific procedures and substantive limitations contained in the latter supersede any more general emergency authority under the former. The District Court for the District of Columbia (Judge Contreras) emphasized that IEEPA's delegation of power to "regulate" imports does not include a power to tax imports. The two lines of argument are entirely compatible, but not identical.

The courts differed as to which court has jurisdiction. Both arguments are reasonable, though both cannot be correct. This does not matter for resolution of this controversy, however, because the two courts came to the same conclusion on the merits. Both cases are headed for the Supreme Court. Regardless of which trial court had jurisdiction, the Supreme Court will make the final decision.

[2.] Based on the arguments as they now stand, there is a high probability the decisions will be affirmed, in my opinion. There are no jurisdictional or procedural obstacles to a decision on the merits, as have plagued some of the Trump executive order cases. In its application to the Federal Circuit for a stay, Justice Department lawyers claimed that the CIT decision is "rife with legal errors," but has not said what they are. Perhaps the government will come up with persuasive arguments in its briefs in the Federal Circuit on June 9. As of now, however, the essential points in the courts' analysis are largely unrefuted. IEEPA grants various emergency economic powers, but makes no mention of tariffs, and has never before been used to impose tariffs. Interpreting it as a broad power to impose tariffs whenever the President declares an "emergency" would implicitly repeal the several statutes in which Congress did grant tariff authority, subject to procedural, substantive, and temporal limits not satisfied here.

[3.] What about the politics of the cases? I am not one to assume that federal judges vote according to their political loyalties, but even if they did, the politics here do not favor the Administration. The CIT panel, made up of one Reagan appointee, one Obama appointee, and one Trump appointee, was unanimous. This suggests that the challengers' arguments have bipartisan force. Both appellate courts to which the cases are headed—the Federal Circuit and the D.C. Circuit—have substantial majorities of appointees of Democratic presidents. To the extent that is relevant, it is not a favorable indication for the Administration.

Most important, the arguments of the challengers are squarely based on jurisprudential principles championed by the more conservative members of the Supreme Court: concern about excessive delegation, the major questions doctrine, and a formalist approach to separation of powers. As the CIT court stated, "Both the nondelegation and the major questions doctrines … indicate that an unlimited delegation of tariff authority would constitute an improper abdication of legislative power to another branch of government." These are the very types of argument the Roberts Court used to strike down Biden Administration initiatives such as student loan forgiveness, the covid-era eviction moratorium, mandatory vaccination, and expansive interpretation of the Clean Air Act to cover climate change regulations. Even if the Republican-appointed Justices were inclined to favor President Trump (which I do not think), it would be difficult for them to explain why the arguments that were fatal to Biden overreach do not apply with equal force to the tariff cases.

[4.] Justice Department lawyers have not attempted to claim any free-standing constitutional authority for the President to impose taxes—which would be difficult in light of the explicit grant of this power to Congress in Article I, Section 8—but President Trump himself has done so. On Truth Social, the President scoffed at the notion that the power to impose tariffs should rest with the legislative branch. "In other words, hundreds of politicians would sit around D.C. for weeks, and even months, trying to come to a conclusion as to what to charge other Countries that are treating us unfairly," he wrote. "If allowed to stand, this would completely destroy Presidential Power—The Presidency would never be the same!"

As I explain in my book, The President Who Would Not Be King, the Founders intentionally vested "hundreds of politicians," the representatives of the People, with the power to impose taxes, including tariffs. The idea that taxation could be a unilateral executive power would have been anathema. Readers may consult The Federalist, No. 58, for details. And although the President has substantial independent authority in the field of foreign affairs, the Founders gave Congress important foreign policy powers as well, including the power to regulate trade with foreign nations. Congress may delegate tariff-setting power to the executive, but it must do so explicitly, and only subject to an "intelligible principle" that guides and limits presidential authority.

[5.] Even if affirmed, these decisions leave the executive with substantial delegated authority over tariffs, under trade laws passed specifically for that purpose, and subject to congressionally-imposed limits of various kinds. The most broad-ranging, the Trade Act of 1974, might well support a new version of President Trump's 10% across-the-board tariff, if adopted through proper procedures. But it would not permit a permanent change to tariff levels or trade policy. Tariffs under the Trade Act are limited to 15% and to a duration of 150 days. If President Trump thinks we should return to a high-tariff policy like that of the 1800s, he will have to persuade the representatives of the People to go along.