Defending the Court of International Trade Ruling Against Trump's Tariffs—A Reply to John Yoo

Yoo's criticisms are off the mark, for a variety of reasons. But, tellingly, he actually agrees Trump's IEEPA tariffs are illegal, merely disagreeing with the court's reasons for reaching that conclusion.

(NA)

In a previous post, I responded to Prof. Jack Goldsmith's critique of the recent US Court of International Trade decision striking down Donald Trump's massive "Liberation Day" tariffs in a case brought by the Liberty Justice Center and myself. In this one, I respond to a critique by UC Berkelely law Prof. John Yoo. Like Goldsmith's argument's, Yoo's fall short—and for some of the same reasons.

Like Goldsmith, Yoo doesn't actually conclude that the CIT got the result wrong, but instead has various reservations about its reasoning. Indeed, he seems to agree that the court reached the right result, merely disagreeing with the way it got there.

Yoo acknowledges that "the trade deficit does not amount to an actual national emergency and that tariffs make no economic sense." If there is no actual national emergency, then the president cannot use the International Emergency Economic Powers Act ("IEEPA") at all, much less start what Yoo describes as an "unprecedented trade war." IEEPA states that the law can only be invoked if the president declares a "national emergency" with respect to an "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." No emergency, no tariffs!

Yoo also recognizes that the CIT "could have agreed to reject the tariffs on the straightforward ground that the trade deficit does not qualify as 'an unusual and extraordinary threat' to the national security, foreign policy, or economy of the United States, as required by IEEPA." I agree again! And, as I noted in my response to Goldsmith, the CIT in fact did emphasize that these IEEPA requirements "impose meaningful limits on any such authority it confers," and therefore rejected the Administration's claim that the statute authorizes unlimited presidential discretion to impose tariffs. Only such unlimited discretionary power could possibly justify the "Liberation Day" tariffs, as Yoo himself recognizes when he concedes that trade deficits aren't actually an emergency or an "an unusual and extraordinary threat."

It is extremely telling that Yoo believes Trump was wrong to declare an emergency here and to label trade deficits "an unusual and extraordinary threat." And he apparently rejects the administration's argument that these are "political questions" exempt from judicial review. If academia's leading advocate of sweeping executive power over foreign affairs thinks an invocation of emergency powers goes too far, that's a strong sign it's illegal!

Yoo complains that the CIT wrongly relied on the "major questions doctrine," which which requires Congress to "speak clearly" when authorizing the executive to make "decisions of vast economic and political significance." He argues that "[m]ajor questions orders courts to stop the executive branch from seizing broad economic, political, or social powers by reading vague statutes too broadly," yet  "IEEPA is no vague statute" because it "directly addresses international emergencies…. and intentionally vested the President with broad economic powers to meet them." But the key question here is whether IEEPA clearly gives the persistent virtually unlimited discretion to impose tariffs. Since the statute doesn't actually mention tariffs at all, and it can only be invoked at all if there is an emergency and  an "unusual and extraordinary threat," there is no such clear grant of unlimited tariff authority. And there is also no doubt that the power to start a massive trade war raises a "major question." For those reasons, MQD clearly does apply, and leads to the conclusion that the administration's tariffs are illegal.

Yoo argues that courts have previously held that IEEPA's grant of power to  "regulate . . . importation . . . of . . . any property in which any foreign country or a national thereof has any interest" includes various authorities that are not specifically mentioned. But, as discussed in my response to Goldsmith, "regulation" and imposition of tariffs are historically distinct powers.  At the very least, it is not unequivocally clear that the grant of the former authority necessarily includes unlimited power to use the latter. Under MQD, that means the administration should lose.

Yoo also argues that MQD and the nondelegation doctrine—which limits congressional delegation of legislative power to the president—do not apply to "foreign affairs." He cites United States v. Curtiss-Wright Export Corp. (1936) to support that position. But Curtiss-Wright did not endorse unlimited foreign-affairs delegation. It merely ruled greater discretion must often be granted to the President in the foreign affairs realm, but not unlimited discretion. It reasoned that legislation "within the international field must often accord to the President a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved" A greater degree of discretion need not be unlimited. Moreover, the Supreme Court has specifically repudiated the notion that Curtiss-Wright grants the President unlimited authority over foreign affairs. In Zivotofsky v. Kerry (2015), te Court emphasized that "Curtiss-Wright did not hold that the President is free from Congress' lawmaking power in the field of international relations" and that "[t]he Executive is not free from the ordinary controls and checks of Congress merely because foreign affairs are at issue."

This is particularly true when, as the CIT noted, we are dealing with a power that the Constitution explicitly assigns to Congress. The CIT ruling rightly emphasizes that "The Constitution assigns Congress the exclusive powers to 'lay and collect Taxes, Duties, Imposts and Excises,' and to 'regulate Commerce with foreign Nations.'" There is no reason to apply MQD and nondelegation to the tariff power any differently from any other congressional authority.

Yoo claims a distinction is warranted because sudden crises arise in foreign policy "while In domestic affairs, problems usually do not suddenly arise that inflict great harm on the nation." But sudden crises happen in domestic affairs, as well, as witness such events as the Great Depression, the Civil War, and the Covid pandemic. If a special exception to nondelegation is warranted with respect to foreign policy, it should at least be limited to genuine emergencies. And Yoo himself acknowledges that trade deficits don't qualify as such.

Like Goldsmith, Yoo complains that the CIT was wrong to reject the fentanyl tariffs against Canada, Mexico, and China on the grounds they don't "deal" with the supposed "threat" at issue. But, like Goldsmith, he overlooks the fact that the administration's rationale for those tariffs requires virtually unlimited tariff authority.

Yoo worries that the CIT's reasoning would prevent the use of IEEPA to impose "economic sanctions aimed at specific countries, based on specific findings of their threat to U.S. national security and foreign policy." But, at least in many cases, such sanctions do directly "deal" with a "threat" in a way the fentanyl tariffs do not. While the latter ostensibly aim to create "leverage" to force the foreign power to address a drug-smuggling trade it is not responsible for, the former punish that government's own wrongdoing and diminish its resources so as to reduce its ability to continue to pose a threat. And, as noted in my response to Goldsmith, the amount of fentanyl entering the US from Canada is negligible, and most of that from Mexico is brought in by US citizens (whom the Mexican government cannot and should not prevent from returning home). If that is enough of a linkage to an "unusual and extraordinary threat" to justify imposition of massive tariffs under IEEPA, then anything is.

Like Yoo, I will be happy if appellate courts uphold the CIT ruling on the ground that there is no genuine national emergency here or because there is no "unusual and extraordinary threat." But they would also be justified in striking down Trump's IEEPA tariffs under MQD or nondelegation, or—like the recent US District Court of DC (DDC) ruling against the tariffs—because IEEPA doesn't authorize the use of tariffs at all.

As the CIT and DDC both recognized, the tariffs can also be invalidated under the rule of constitutional avoidance, which requires courts to avoid interpreting federal statutes in ways that raise constitutional problems, so long as there is a "fairly possible" alternative. Here it is obviously "fairly possible" for courts to avoid the nondelegation issue by concluding that IEEPA doesn't authorize tariffs, that there is no national emergency, that there is no "unusual and extraordinary threat," or that the administration should lose under the major questions doctrine.  Indeed, Yoo himself agrees with two of these arguments.