Prof. Jack Goldsmith (Harvard) on "The Weaknesses in the Trump Tariff Rulings"

A very interesting item in the Executive Functions substack newsletter, written by a leading expert on Presidential power:

On Wednesday, the U.S. Court of International Trade (CIT) ruled that the International Emergency Economic Powers Act (IEEPA) did not authorize President Trump's sprawling tariff policies and permanently enjoined them. On Thursday a federal district court in the District of Columbia reached the same conclusion about IEEPA for different reasons, and issued a preliminary injunction.

Before these rulings, I disagreed with most of the commentary on Trump's IEEPA sanctions and thought that the legal issues here were hard and close. Neither ruling convinced me otherwise. In what follows I explain why, though I must be necessarily selective in addressing complicated opinions chock full of technical arguments.

As I explain in the end, I think the lawfulness of Trump's IEEPA tariffs depends a lot on the proper application of the major questions doctrine (MQD) that both the CIT and the district court under-examined. Indeed, I think the major questions doctrine will be the central issue before the Supreme Court when these cases reach it. A reader in a hurry might skip the long intervening statutory interpretation technicalities and go directly to the more interesting and to my mind consequential analysis of the MQD's relevance at the end of this piece.

The Case for Trump's Tariffs Under IEEPA

IEEPA grants the president a number of emergency authorities, one of which is the authority to "regulate … importation … of … any property in which any foreign country or a national thereof has any interest by any person." It further provides that the president may exercise this authority "to deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States, if the President declares a national emergency with respect to such threat." …

Much worth reading in its entirety.