The Volokh Conspiracy
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My New Atlantic Article on the Tariff Case and its Significance
It explains how the ruling is a win for separation of powers and the rule of law.
The Atlantic has just published my new article about our win in the tariff case before the US Court of International Trade. It is entitled "A Victory for the Separation of Powers." Here is an excerpt:
Wednesday's unanimous ruling against President Donald Trump's expansive "Liberation Day" tariffs by the United States Court of International Trade wasn't merely a victory for the businesses and consumers opposed to the policy. The decision was much more than that: a victory for the constitutional system of separation of powers—and, even more broadly, for the rule of law in America.
The decision came in a case filed by the Liberty Justice Center and me on behalf of five American businesses harmed by the tariffs, and it also covers a similar case filed by 12 states led by Oregon. Our suit challenged Trump's attempted use of the International Emergency Economic Powers Act of 1977 to impose 10 percent Liberation Day tariffs on imports from almost every nation in the world, plus additional "reciprocal" tariffs on many more countries. We argue that the IEEPA doesn't grant Trump the virtually unlimited tariff authority he claims, and that, if it did, it would be unconstitutional. Earlier, the president also used IEEPA to impose 25 percent tariffs on Canada and Mexico, plus additional tariffs on China, under the pretext that they would somehow curtail importation of fentanyl into the United States. (Our case challenged only the Liberation Day tariffs, while the Oregon case also targeted the fentanyl ones.) In combination, the IEEPA tariffs kicked off the biggest trade war since the Great Depression. The Tax Foundation estimated that Trump's IEEPA tariffs would have imposed some $1.4 trillion to $2.2 trillion in tax increases on Americans over the next decade. They also would have severely slowed economic growth, inflicted grave harm on many businesses—including our clients, who depend on imports—and raised prices on consumers.
Fortunately, the court ruled that Trump does not have the "unbounded authority" he claims "to impose unlimited tariffs on goods from nearly every country." The British overthrew King Charles I in part because he tried to impose "ship money" taxes without legislative authorization. The president of the United States is no king, and he does not have the power to impose taxes in the form of tariffs whenever he feels like it. The court's decision upholds this fundamental principle of the Anglo-American constitutional tradition.
The article addresses a variety of issues raised by the decision, the potential future course of this litigation, and yesterday's separate ruling against the tariffs by federal district court Judge Rudolph Contreras of the District of DC.
