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.

Comments

[cannpro]

I find most of Goldsmith's arguments unpersuasive. We need tariffs on non-fentanyl goods coming into the country because fentanyl, which is illegally smuggled without tariffs, will somehow combat illegal drugs? And this drug smuggling which has always been going on is somehow an emergency?

If Goldsmith's "reasoning" is to be taken seriously there could never be any limits on the President's power to unilaterally impose tariffs, and would be no point in the Court of International Trade since all tariffs would automatically be unreviewable. I don't find this article "interesting".

[Stephen Lathrop]

The reasoning is not that fentanyl will somehow combat illegal drugs. The whole point is the president can punish anyone unless they do what he wants.

[Supremacy Claus]

Goldsmith is a lawyer, a professor at Harvard, a former employee of George Bush. Dismissed. Deep State gibberish and lame lawfare.

Why is no one mentioning the stay on these decisons by a federal district appeal court? Much worth reading in its entirety.
https://www.documentcloud.org/documents/25956621-fedcirvosord052925/

[Supremacy Claus]

It would be a more useful exercise to try to write something up to today's standard. Today, a zinger is required every minute. We are on Tik Tok time now. Watch any successful recent movie, with a stop watch. The zingers are very 1 to 2 minutes. AI cannot do that to my knowledge. This would be to exercise the talent of the students. Such a skill is beyond the ability of AI. Nor do I see AI duplicating that with current methodology. Talent is still the monopoly of the human.

[David Nieporent]

Why is no one mentioning the stay on these decisons by a federal district appeal court?

1) Because there is no such thing as a "federal district appeal court."
2) Because this is not an actual stay; it's an administrative stay. And is not interesting at all.

[y81]

And because Prof. Somin did write about it.

[Vryedni]

Yeah, but aside from all that, why is nobody mentioning the stay on these decisions by a federal district appeal court?

[ah....Clem]

The whole point is the president can punish anyone unless they do what he wants.

Yes, the entire point of the tariffs is to allow Trump and only Trump to punish those who displease him and reward those who pay him tribute. Reducing the trade deficit, rebuilding domestic manufacturing, stopping fentanyl from Canada, etc. are just excuses. Self-contradictory excuses as described elsewhere, but excuses nonetheless.

[Kenneth Almquist]

Yes. Goldsmith argues that accepting that the IEEPA grant of authority is broad enough to encompass the Trump tariffs does not mean that the IEEPA creates an unbounded, limitless power because the statute as written only allows tariffs to be imposed in response to an “emergency” caused by an “extraordinary threat.” But if the courts are going to defer to the President on what constitutes an “emergency” and an “extraordinary threat,” that’s no limit at all.

[Supremacy Claus]

The giberrish of the lawyer is to express feelings, biases, moods, hanger. None has the slightest external validation. A few men with guns are their sole validation. The lawyer gibberish is hate speech. Goldsmith and Volokh just hate Trump. How is it that Trump has never done anything they supported, not even once?

[Tim]

Dude.

Goldsmith is taking Trump's side here.

[jb]

This new bot is not very good despite its funny name. At least Riva gets its arguments in the right place about half the time.

[David Nieporent]

Again: it's not new. Behar has been trolling on the Internet for decades on these things.

[Vryedni]

That's Dvaid Behar to you. Or was it Daivd? What was it again?

[Riva]

The MQD applies in the context of determinations by administrative agencies, not determinations made by the president in the context of a national emergency. Agencies are not politically accountable bodies. Neither are the courts by the way. But the president is. Now, if you want to upend (a century or more?) of precedent that requires deference to the president in such matters and substitute the opinions of the judiciary in the conduct of foreign relations, by all means extend the MQD to allow the courts to second guess presidential findings.

[Lee Moore]

I find this unconvincing. The theory behind the MQD is that Congress is presumed to delegate legislative authority over major matters only if it does so explicitly. So it really doesn’t matter who they’re delegating to.

The more relevant question is - if we’re trying to construe “regulating ….importation” - why would anyone think imposing tariffs on imports is a more major matter than other things that are unarguably regulation - like banning imports of certain goods, or all goods, from say China completely.

The MQD fails in this case not because you can’t apply it to the President but because tariffs are not “more major” than other possible types of regulation.

[Riva]

Well I'll agree that there may be multiple ways the courts were in error. But the MQD has never been applied to the president. The doctrine applies when construing the limits of congressional authority delegated to administrative agencies, not where Congress has directly authorized the president to act. And especially not in the realm of foreign affairs or national security where the president has some overlapping independent authority and where his power, when acting pursuant to congressional authorization, is presumed to be at its maximum.

[wvattorney13]

That seems like an artificial distinction. The agencies do what the President tells them in almost all cases. I don't see any grand principle for applying the MQD differently to each situation.

[Lee Moore]

The agencies do what the President tells them in almost all cases.

That's the theory 🙂

But first the President has to fire the previous President's holdouts. And then get through 317 District Court judgements saying he can't fire them. And then a further 317 Appeal Court judgements agreeing with the District Courts. Until eventually you get to SCOTUS. And then when - at last - the agencies are properly dewormed, SCOTUS will discover "reliance interests" to protect.

So "The agencies do what the President tells them in almost all cases" is incomplete. You need to add ".....after the beginning of his third term."

[Sarcastr0]

Trump could fire people for insubordination.
He's not doing that; the idea that this is about holdouts from the previous admin is contradicted by the facts.

You also tell a story wherein every court is against Trump including the Supreme Court.

I'm not sure you know what you're admitting.

[Lee Moore]

Trump could fire people for insubordination.

cite please. You seem to have forgotten that "independent" agencies are not statutorily subordinate to the President. He cannot simply issue an Executive Order to the NLRB instructing it to adopt the attached draft regulation pronto. He can exercise control only by hiring and firing. Hence the lamprey-like behavior of the holdouts.

Moreover, even when the President can fire for "cause" we still get the 317 cases about whether the "cause" has been met.

And moremoreover there is a vast difference between you - even if you faced dismissal for insubordination - and, say, Riva implementing the President's agenda. Riva would follow through with energy, alacrity and enthusiasm; you would slow walk and plant mines wherever you thought you could. Internal working papers - drafted by your pals - would appear in public either to try to move the public opinion needle, or to provide useful fodder for lawfare attorneys. Malicious compliance, delay, finding but not trying to solve roadblocks until it's too late to solve them - they're all things. You're pretending never to have seen Yes Minister, but I'm not buying it.

You also tell a story wherein every court is against Trump including the Supreme Court.

Of course the District Courts and Appeals Courts are against Trump ! Plaintiffs pick their judges and circuits carefully. What kind of halfwit would choose to challenge Trump policy in front of Judge Kacsmaryk, with an appeal to the 5th Circuit ?

As for SCOTUS it is composed of :

3 diehard lefties
1 split the difference Chief, with moderate establishment conservative leanings
2 conventional moderatel conservative establishment types
1 libertarian-ish narcissist
2 fairly conservative conservatives, of pre-Trump vintage

This is not a Trumpist majority. Hence you do not get a string of Trump wins. I expect Trump will mostly win at SCOTUS, eventually, on the hire and fire cases; and mostly lose on the immigration cases. But wherever possible Johnny will try to arrange to split the difference. Because that's who he is.

[Sarcastr0]

1. You didn't say independent agencies. Which are insulated from *any* administration's agenda by Congress. Who doesn't offer that insulation willy-nilly. Not that this matters anymore.

2. You continue to admit things about Trump.
You thesis is narrowed to 'only MAGA is legitimate in the Trump administration' as applied to civil servants, courts, and the Supreme Court.

That says something about Trump, and your view of our government. If you don't like living in a republic, just come out for monarchy no need to bother faffing about.

[Lee Moore]

You didn't say independent agencies

Why would I ? The proposition was that agencies "do what the President tells them in almost all cases." Independent agencies are agencies and they always do what they feel like doing. The only do what the President asks them, if they agree with him. Which seldom happens if the leaders were appointed by his political opponents.

Moreover, you will have noticed that Trump had very little success in his first term getting even the non independent agencies to do what he told them.

[Riva]

It's called separation of powers. And here we can add political questions.

[Lee Moore]

I’m marginally more inclined to agree with Goldsmith than the District Court, but I thought the District Court made its argument better. Goldsmith’s argument is a bit of a ramble.

[Rossami]

Since that's not even close to what Goldsmith actually said, your opinion that his arguments are "unpersuasive" is itself unpersuasive. Care to take another crack with a version that's not a strawman?

Note - I'm not defending Goldsmith or the tariffs, just noting that this particular criticism is invalid.

[Armchair]

The argument being used is that the trade actions exert influence on the country that may be contributing to the undesired activity.

Let's give you an example.

On March 8, 2022 President Biden signed an Executive Order to ban the import of Russian oil, liquefied natural gas, and coal to the United States. Did we directly object to the oil, natural gas, and coal? No. Instead, what we cared about was the Russian war on Ukraine, and this was a lever to affect that.

[Lee Moore]

Which EO expressly referenced IEEPA and was a ban. Not a tariff.
Underlining the point that whatever other arguments might be relevant, the argument that :

a "tariff" is such a "major question" that it can't be included in the meaning of "regulating ....importation" unless the word "tariff" is stated explicitly

is baloney.

"Bans" on imports are majorly more "major" than "tariffs."

[David Nieporent]

"Bans" on imports are majorly more "major" than "tariffs."

They're not, and that's not how the MQD works anyway. It doesn't weigh things the law does cover against things it doesn't.

[Lee Moore]

They're not

That's the dumbest thing you've said in months - from several contenders. If you are importing things into the US, either as a foreign exporter, or a US user of the product, would you prefer :

1. the import to be banned outright, or
2. to be subjected to a 90% tariff ?

Which disrupts your business more ? Which disrupts the free flow of goods more ? Which is more elephantine to you and your liberty, and which mousier ?

that's not how the MQD works anyway. It doesn't weigh things the law does cover against things it doesn't

Begging the question. Which is are "tariffs" included within the meaning of "regulating.....importation" ? There is, above, an appeal to the MQD to try to help us puzzle that out. There are many ways of regulating importation - banning, quotas, tariffs, quality control and inspection, packaging, biosafety rules, permits and so on. None of these things are explicitly mentioned in "regulating...importation" - they're all different specific ways of regulating, all covered by the word "regulating" - unless the context requires otherwise.

The MQD is intended to help us decide whether the context requires otherwise. It doesn't - because tariffs are not in any sense a bigger deal than many of the other forms of regulation.

Summary execution of the importer - yes, that would be an elephant in a mousehole. Tariffs, however, are just the right size and shape for the hole. Like bans and the rest.

[Jaypd]

Counter-point: no it isn't, and you're a fucking idiot

[Stupid Government Tricks]

More like a counter-punt. You forgot the follow-through supporting arguments.

[Armchair]

It's an interesting question... Taking a look at some of the actions the IEEPA emergencies have been applied to.

1. Banning trade with Sudan
2. Prohibiting/limiting trade with Iran
3. Foreign narcotics traffic with Columbia
4. Worldwide (2001) to expand the Export Administration act
5. And several other issues, including much of the actions taken with respect to Russia

All this was well before the current issues

If you're going to limit the IEEPA....how do you do so? Can you say that a country (say Iran, Sudan, or Russia) can't have its trade banned or restricted (via tariff) under it?

[Stupid Government Tricks]

Those are all with respect to trade, which is a foreign activity once it leaves the port.

Tariffs are a domestic tax on Americans. There is no foreign aspect, any more than if a VAT were implemented on imports only. Still a tax paid by Americans.

[Armchair]

"Tariffs are a domestic tax on Americans."

Not...quite. Tariffs are a tax paid by importers to bring foreign items into the US. Those importers could be American. They could be the foreign company. But the trade element...the foreign items being imported into the US, is a key element.

And you can argue that US Consumers end up paying for them (via higher prices). But the same argument can be made for limiting trade in other ways.

[Stupid Government Tricks]

As for tariffs restricting trade, Trump hasn't made up his mind yet. He claims he wants high tariffs to restrict imports and encourage domestic industry, yet he also wants tariff revenue to replace the income tax, which implies a low enough tariff that does not restrict imports enough to reduce revenue. He also claims tariffs are a negotiating tool, but that requires reducing them as part of the negotiations; otherwise they could not be a negotiating tool. And if he's serious about protecting domestic industry with high tariffs, they have to be permanently high, not just for a month or year.

In short, Trump is an economic ignoramus, and two of his rationales for tariffs require tariffs low enough to not restrict trade.

[tylertusta]

If you're going to limit the IEEPA....how do you do so?

You forgot the Trump Exception provision in the IEEPA: 50 USC § 1711.

[Michael P]

What does the "grade and rank of General of Marine Corps" (only for the duration of WW2) have to do with this lawsuit?

[tylertusta]

Nothing. That's the joke.

[Stupid Government Tricks]

Nice one! I figured it was something the equivalent of "the giraffe smelled yellow". Did you just type in a random number, or choose it specifically.

[tylertusta]

1711 would be the next section in Chapter 35 of Title 50, which only goes up to 1710:

https://www.law.cornell.edu/uscode/text/50/chapter-35

A google search for 1711 actually pulls up an older section 1711, which is what Michael found. The old 1711 was moved to a different section within Title 50 sometime within the past 15 years.

[JasonT20]

What were the actions taken under the IEEPA in those cases that you think are similar to imposing blanket tariffs are virtually every other country?

If you're going to limit the IEEPA....how do you do so? Can you say that a country (say Iran, Sudan, or Russia) can't have its trade banned or restricted (via tariff) under it?

You'll have to point to where the plaintiffs in these cases or people here have been arguing that the IEEPA wouldn't allow the President to impose restrictions or bans on trade with individual countries after the President has officially declared an emergency? (Which I think the IEEPA requires before the President gets to use authority from that act.)

Your whole post looks like an exercise in false equivalence to me.

[BrotherMovesOn]

+1

[BrotherMovesOn]

"yet he also wants tariff revenue to replace the income tax, which implies a low enough tariff that does not restrict imports enough to reduce revenue"
Don't you mean 'high enough tariff'?

[Stupid Government Tricks]

It has to be high enough to generate enough revenue, but low enough to not restrict imports too much. A Laffer curve of sorts.

With 2024 imports and income tax, that would be a 71% tariff, I think, and that sure would reduce imports and revenue. I'd guess (I am no economist or financial expert) the current minimum 10% tariff might not reduce imports a lot, but that's only 10/71, 14%, of the income tax revenue.

[bye]

I will say it: exactly what I posted previously. Your lawyer training obscures common sense.

[Supremacy Claus]

"Your lawyer training "obliterates" common sense." An intelligent, ethical, caring young person attends law school. Gets indoctrinated into supernatural doctrines that are ridiculous. Loses all caring about people for reptilian rent seeking values. Becomes 10 times more toxic than organized crime.

[Riva]

I have been ranting for a while that, in their rush to rule against the president, the courts essentially relied on an intellectually sloppy application of the MQD similar to how some sloppily rushed to judgement against the president in the disqualification clause matter and presidential immunity. The common denominator being the president.

Of course the trade courts' lightning fast determination after hours was also helped along by a specially selected panel who had predetermined to rule agains the administration. But where would be the fun playing with justice if the system had to be fair and impartial?

[Stupid Government Tricks]

The truly sloppy and rushed action has been Trump's tariffs. They are incoherent and self-contradictory.

* He laid tariffs on islands which are parts of countries with the same tariff.

* He laid tariffs on a joint UK/US island.

* He violated 15 trade agreements, some of which he himself had negotiated. That's not how you build a reputation for being a reliable negotiator.

* He wants high tariffs to block imports, which means they must be permanent, otherwise Americans would resume imports the instant they lowered.

* At 2024 levels of imports and income tax, he'd need a 71% tariff. Yet a tariff that high would reduce imports and revenue, and not get rid of the IRS.

* He claims tariffs are a negotiating tool, but that implies he is willing to lower tariffs, which defeats the point of having high tariffs to protect domestic industry and replace the income tax.

* He claims he wants reciprocal tariffs, yet that too requires a willingness to lower tariffs, and his initial "reciprocal" tariffs included high tariffs on countries with low tariffs on American goods.

Trump is an economic ignoramus, but more to the point, his goals of low and high tariffs are incompatible. Even an economic ignoramus should recognize that.

[ah....Clem]

Alice laughed. 'There's no use trying,' she said. 'One can't believe impossible things.'

'I daresay you haven't had much practice,' said the Queen. 'When I was your age, I always did it for half-an-hour a day. Why, sometimes I've believed as many as six impossible things before breakfast.'

[Riva]

I'll admit the president is not perfect. But he is...wait for it...the president. He sets policy in these matters, not the federal courts. And, as for any of his eccentricities, the defects of great men are the consulation of the dunces.

[Stupid Government Tricks]

He is not above the law. He still has to obey the laws. Otherwise what is the purpose of laws?

[Riva]

I think you're confused. The federal courts are expanding their power and operating outside the law, not the president. Are the courts above the law? If they are, what is the purpose of the laws?

[Stupid Government Tricks]

I know you are wrong. The individual judges who have overstepped have been slapped down. The President is getting slapped down when he oversteps. The US judicial system is slow and messy, and I would love to replace it with my Chartertopia. But I would rather keep it as is than let the President have no checks from the courts.

[Sarcastr0]

Bot tried for a quote to back up his monarchism.
Gets the quote wrong.

It's a hard bot life.

[Riva]

I don't think I asked for the input of a troll, little communist girl that never smiled. And I don't think I got anything wrong but then again I was working from memory and didn't use quotes. So, since you're here, feel free to point out the error if it really makes you feel better.

[Riva]

I'll even help you out because I actually feel sorry for little communist girls that never smile. It's from Isaac D'Israeli you illiterate buffoon.

[Stephen Lathrop]

Pretty funny.

If I may, someone appeared on Jeopardy last night, called himself . . . Sarcastr0. You?

[Riva]

Interesting how you imbecile trolls always travel in packs. Cowardly and stupid at the same time.

[David Nieporent]

He sets policy in these matters,

Nope. Congress does. Presidents don't set policy. They just execute the laws of Congress.

[William of Brooklyn]

What a preposterous claim. And it reminds me of the quip of GWHB, when he mused (regarding Jim Wright,) "I wasn't aware that Fort Worth had a foreign policy."

And of course, it's not just foreign policy. Every department and agency of the Executive branch has policies, priorities. Do you think Congress decides on the prosecutorial priorities of the Justice Department? The focus of the EPA? The Department of the Interior? The State Department?

[Sarcastr0]

Congress can delegate discretion to execute.
It's good practice, actually, given how Congress can't do granular fact finding and adjudication.

Discretion doesn't mean agencies are not operating to execute policies as specified by Congress.

[William of Brooklyn]

In practice, I think that's precisely what it means. That's why the judiciary had to come up with the MQD, and why -- after decades of grossly exceeding any possible interpretation of Congressional direction -- Chevron had to be overturned. And the whole Administrative State is about Congress abdicating responsibility for making policy. In short, in some areas the president makes policy, and that's as it should be, and in other areas, Congress should -- at a minimum -- endorse and/or codify policy, but it mostly just punts to the agencies.

[Sarcastr0]

This is not logical. Congress intends to give discretion; they gave discretion. If they don't like it they can take it back.

I don't much like MQD - I think it's a judicial blank check to itself - but the theory is about delegated discretion needing to be explicit, not about such delegation not being possible.

[Riva]

Weird how Biden's open border policies were decidedly different than President Trump's first term policies and President Trump's second term policy to secure our borders is in such contrast to Biden's administration.

All this apparently and there was no policy in the first place because Presidents don't set policy, or something? Yeah, you might want to re-examine that little gem when you have some free non-trolling time.

[Riva]

No, what he is the president. He gets to set policy, not the courts. Even if they really disagree with him and don't like him too much. But, as I've noted before, if you like rule by judges that's your choice. Enjoy the coup. I know the CCP is enjoying the latest judicial antics. In time, you may come to miss the old constitutional republic.

[tylertusta]

When any other President makes a presidential determination, courts don't challenge it because the President is due deference.

When Trump makes a presidential determination, courts do not give him deference because the judges don't consider him to be the President.

[bernard11]

When Trump makes a presidential determination, courts do not give him deference because the judges don't consider him to be the President.

Or because the determination is ridiculous.

Goldsmith unquestioningly accepts Trump's ridiculous assertion, for example, that the balance of payments deficit is an emergency.

And then:

in executive actions since January, Trump has cited threats abroad from drug cartels, traffickers, terrorists, and criminal networks to impose changing import duties on goods from Mexico, Canada, and China.

These (may) be problems. Are they emergencies? No. Will tariffs help solve the problems? No. But Goldsmith buys it all.

Hardly worth reading.

[tylertusta]

What's ridiculous is that you've suddenly found a principle here when people were more than happy to look the other way before.

Trump's attempt to 'balance trade' is no less of an emergency than George W Bush's imposition of tariffs to sanction governments that may proliferate WMDs.

The difference is Trump. You, like many, lose your ever-loving minds as soon as he enters the chat.

[Sarcastr0]

Trump is doing extraordinary things well out of the scope of part uses of emergency powers.

Maybe the power has been abused in the past but there's a scale difference that is based on what the admin is doing, not on who Trumps is.

The knee-jerk defense that evert pushback is all motivated by personal animus against Trump rarely withstands scrutiny. Trump supporters know and approve of the administration's radicalism and extraordinary claims of power, and then turn on a dime to claim Trump's totally normal because libs bad.

[tylertusta]

Trump is doing extraordinary things well out of the scope of part uses of emergency powers.

Maybe the power has been abused in the past but there's a scale difference that is based on what the admin is doing, not on who Trumps is.

An identical provision in IEEPA's predecessor was used in 1971 to impose a 10% tariff on every single country. You would be interested in looking up US v Yoshida for the outcome of that case and how the government prevailed on appeal.

The knee-jerk defense that evert pushback is all motivated by personal animus against Trump rarely withstands scrutiny

"Rarely."

[David Nieporent]

Did you ever actually read Yoshida, or did you just find a reference to it somewhere? In Yoshida, the Court of Customs and Patent Appeals upheld the specific tariffs imposed by Nixon because it found what he did to be "quite different from 'imposing whatever tariff rates he deems desirable,'" which the court agreed would not have been legal.

[Riva]

What is "evert pushback" little communist girl that never smiled? Seems like an oxymoron. I can see the moron part but that's just you. Other than that it doesn't really make much sense.

[wvattorney13]

I agree with this. The best reading of this law is, IMHO, is that the President doesn't have the unilateral authority to impose tariffs in these types of situations.

But we have an unbroken tradition of accepting such powers, in both Democratic and Republican administrations, going back more than 50 years.

However, when Trump does it, it is always different. Distinguish the policy or the scope of the policy and declare THAT is the key difference which means Trump can't do it but past presidents could. And then rinse and repeat that same logic for EVERY presidential power.

When viewing it from 500 feet, it is not the wording of the statute, but the visceral hatred of Donald Trump, the belief that he should not be President, that he is reckless and irresponsible, that he is evil---those are all the controlling commonalities, and posters in these threads do us the favor of really not even trying to hide this animus.

That weakens their argument considerably and makes it look to be fueled by that animus and not any grand principle of separation of powers.

[David Nieporent]

But we have an unbroken tradition of accepting such powers, in both Democratic and Republican administrations, going back more than 50 years.

No, we don't. IEEPA is less than 50 years old and has never before been used to impose tariffs.

[wvattorney13]

Its predecessor statute, which contains identical relevant language, was used by Nixon to impose tariffs.

[Sarcastr0]

DMN discussed that precedent right above.

[David Nieporent]

Just to elaborate on that, what the Yoshida court said expressly was that it was only going to assess Nixon's actual use of the statute rather than the potential use to which the language might allow it to be put.

[Stephen Lathrop]

However, when Trump does it, it is always different.

wvattorney13 — Yeah. Because the pattern of Trump's lawlessness became so overt it demanded judicial notice. Do that, and if the Court does not decide subsequent related cases with that as a premise, the Court is neglecting separation of powers.

And by the way, the Court is neglecting separation of powers, on Trump's behalf. If it were not, half his cabinet would already be in jail for civil contempt.

[Stupid Government Tricks]

A constitutional republic, like a place with laws and a Congress which passes laws, and with a Constitution detailing what laws are possible?

[ah....Clem]

As discussed in a previous thread, there is no logic behind saying that the MQD applies to agencies in the executive branch but not to the president. Goldsmith thinks that this is a "hard question", but it's not. Or at least it shouldn't be.

Unfortunately, there is a contingent of people who want to anoint the office of the president with monarch-like powers despite what is clearly articulated in Article I.

That's pretty much the sum total of their argument - "the president is above the law. As long as the president is from my party, of course."

[riemannzeta]

Am I following the argument here correctly? The constitutionality of the tariffs is *less* questionable when enacted as an Executive Order than as an agency act?

I can follow the legal reasoning for this argument. But really? That's the Separation of Powers we want to have under our constitution?

[ah....Clem]

Yes, that appears to be his argument. He claims that lower courts have split on the whether MQD applies to actions by the president (I'd be curious to see examples...) but the SCOTUS has only ruled on cases where it was applied to an agency, not the president himself.

That's the Separation of Powers we want to have under our constitution?

Depends on who you mean by "we". There is a sizable contingent of people who want a strongman in charge with no constraints on his authority.

[Sven_Hunkstrom]

Ship sailed a long time ago man. At this point I just want the strongman to (1) be someone we can all vote in and out, and (2) have the same strongman powers regardless of what party he’s from.

[Stephen Lathrop]

Cynical. Trending nihilist.

[riemannzeta]

The obviousness doctrine in patent law was developed to shut down this type of sophistry. There are patent claims so obvious that nobody who had anything better to do would have bothered to file them — which, ironically, gives them an advantage because there's no anticipating prior art at the bottom of the heap where an expert wouldn't bother to spell things out. But such claims are supposed to be invalid anyway because they're obvious — obvious to anybody of even ordinary skill.

Same principle here. Maybe the reason there isn't precedent on how the MQD applies to Executive Orders is because it was *obvious* to anybody with even ordinary legal skill that if Agency action is subject to one level of scrutiny, then the level of scrutiny of Executive Orders would be even higher.

Same vibe. Maybe the Federal Circuit and the Supreme Court will see it the same way? I remember Chief Justice Roberts once asking, in jest, what an expert on obviousness was. I'm pretty sure he knew the answer when he asked.

[Stephen Lathrop]

Here, from a brilliant patent attorney who hired me from time-to-time to storyboard his presentations, is a definition: The originality of an invention is measured by the degree of surprise it produces in someone expert in the field.

Hence, no surprise, no originality, no patent.

The attorney was on the lookout for graphical presentations which were, as he said, "Able to make comprehensible to a jury of postal clerks an invention which would surprise an expert in quantum mechanics." I, of course, was more a postal clerk than otherwise, but his explanations enabled graphical presentations that bypassed all the obscurities.

[Squire Al]

Goldsmith's core argument starts with the power of the President to take action based on facts that he determines to be true.

Those facts in this case involve a non-existent emergency/crisis that requires these increases in tariffs. Just as with his fictional claims to an invasion to justify deportations, can a Court review the supposed factual basis for a Presidential order and determine that it is a tissue of lies and does not support the action taken or is that either a political question that no Court can rule on or that only a Congress can override?

[Michael P]

"You don’t like a particular policy or a particular president? Then argue for your position. Go out there and win an election. Push to change it. But don’t break it. Don’t break what our predecessors spent over two centuries building. That’s not being faithful to what this country’s about."

Note: Dumb assertion of your position is not an argument.

[William of Brooklyn]

The latter. It (the existence of an emergency) is a political question that no court can decide, and Congress can determine that no emergency exists, but only by passing a bill into law. No "sense of the Senate" (or House) will suffice.

[Sarcastr0]

It (the existence of an emergency) is a political question that no court can decide.

This is the exact 180-degree-opposite if your thinking above about delegation of discretion not being a proper delegation. Here you say the political question doctrine renders any delegation unable to include any conditions pre-set by Congress.

You're inconsistent, and manage to skip the middle thus being wrong both times.

[David Nieporent]

It (the existence of an emergency) is a political question that no court can decide,

Why is that a political question, besides that you want it to be?

[ah....Clem]

...can a Court review the supposed factual basis for a Presidential order and determine that it is a tissue of lies and does not support the action taken...

That's what courts normally do in civil cases, sometimes leaving it up to a jury to determine findings of facts.

But there's a significant cadre of people who advocate for the Nixonian adage "it's not illegal if the president does it". They'll argue that if the president says something the court has to accept it as true, so it's not within the court's purview to review the factual basis.

[William of Brooklyn]

Would you have a court determine who blew up the Maine, or whether Iraq had WMDs? If either or both of those were found to be predicated on a "tissue of lies," could a court disallow/overrule a declaration of war by Congress, or the passage of the AUMF? Is that really the power you think a court has?

[Sarcastr0]

Oh hey look who brought Congress into his hypothetical.

Hmmmm...

[ReaderY]

I think taxes are a sui generis constitutional issue. The reason is the requirement that any money bill must originate in the House of Representatives. The Constitution incorporates the concept of no taxation without representation. In addition, taxation and regulation are considered two very separate and distinct yhings.

I think Congress can delegate tariff authority to the President because permissable delegable Presidential authority is greater in foreign affairs. But a tariff is a kind of tax, if Congress wants to delegate authority to set tariffs, it has to say so wxplicitly. And nothing in the IEEPA actually says so with the explicitness required. The power to regulate does not imply the separate power to tax.

The judiciary need not reach this question. It is enough to say, as the Couet of International Trade did, that nothing in the IEEPA grants the kind of complete unfettered discretion Trump has claimed - Trump’s tariffs are not permitted by the IEEPA - and leave the question of whether it might permit a more limited set of tariffs more clearly and directly connected to an emergency for another day when such a tariff is before it.