The Volokh Conspiracy
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Trump's Plan to Impose 50% Tariffs on Brazil Highlights Illegal and Harmful Nature of his Trade Policy
It's an obvious abuse of emergency powers, a claim to unconstitutional delegation of legislative power, and a threat to the economy and the rule of law.

Earlier today, President Donald Trump announced he intends to impose 50% tariffs on imports from Brazil, citing that country's prosecution of former President Jair Bolsonaro, for the latter's attempt to stage a coup to keep himself in power after losing an election. Bolsonaro is a political ally of Trump's. The incident highlights the illegal and dangerous nature of Trump's tariff policy.
The administration has not made clear what law they will use to impose the Brazil tariffs. But reporters tell me officials have indicated Trump will use the International Emergency Economic Powers Act of 1977 (IEEPA), which is also the statute at issue in the lawsuit against Trump's "Liberation Day" tariffs, filed by the Liberty Justice Center and myself, on behalf of five small businesses harmed by this massive trade war.
The Brazil situation exemplifies why Trump's use of IEEPA is illegal and harmful. Brazil's prosecution of Bolsonaro is pretty obviously not an "emergency" or an "unusual and extraordinary threat" to the US economy or national security. Both of these conditions are required to invoke IEEPA. This situation just underscores the danger of allowing the president to define those terms however he wants, without any judicial review, as the administration claims he can.
The ostensible rationale for the Liberation Day tariffs is trade deficits, despite the fact that such deficits are not an "emergency," not at all "extraordinary" or "unusual," or even a threat at all. On these points, see the excellent amicus brief in our case filed by leading economists across the political spectrum.
The Brazil tariffs are even more indefensible than Trump's other IEEPA tariffs. In addition to the Bolsonaro prosecution, Trump's letter announcing the new tariffs cites that country's supposedly unfair trade policies. But the US actually has a substantial trade surplus with Brazil, of some $7.4 billion per year, according to the office of the US Trade Representative. In combination with Brazil's retaliatory tariffs, Trump's massive new tariffs against that country will predictably harm consumers and businesses in both countries, for little if any gain.
If the president can use IEEPA to impose tariffs for completely ridiculous reasons like these, he can use it to impose them against any nation for any reason. That reinforces our argument that the administration's interpretation of IEEPA leads to a boundless and unconstitutional delegation of legislative power to the executive. A unanimous ruling in our favor by the US Court of International Trade concluded that IEEPA "does not authorize the President to impose unbounded tariffs" and that such "an unlimited delegation of tariff authority would constitute an improper abdication of legislative power to another branch of government." I hope appellate courts will reach the same conclusions.
The president's attempt to use tariff policy to punish Brazil for prosecuting one of his political allies underscores the threat that unlimited executive tariff authority poses to the rule of law. Tariff policy - like other significant economic policies - should be based on clear, stable rules that do not vary based on the whims of any one person, and cannot be used to punish the president's political enemies or reward his allies. Trump's tariff power grab is a huge step towards replacing the rule of law in trade policy with the unilateral rule of one man. That's yet another reason why courts should strike it down.
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Petulant, Mad King.
Dear Prof. Somin;
STFU already!
No, Ilya, don't shut up.
Keep talking about what an insane scofflaw Trump is.
Maybe it will sink in to Bumble or others after another year or so.
We have a madman in the White House. Everyone needs to understand this.
bernard11 : "We have a madman in the White House. Everyone needs to understand this."
You think Bumble doesn't? Why else would he be raging against Professor Somin? I can read any amount of Blackman nonsense and only feel amusement because I see how unprincipled it is. Bumble seethes against Somin precisely because his posts are principled - often with principles Bumble himself probably professed before he became just another cult bootlicker.
Bumble knows Trump has accelerating cognitive decay, severe mental problems, and functions at the emotional level of a child. He just doesn't care. Our reality-TV president keeps Bumble entertained with mindless chaos and pointless destruction; that's the only important thing. Owning the Libs must come first, even at the cost of being the world's laughingstock.
Well done Bernie. In a climate of escalating leftist riots and violence, some being encouraged by elected democrats, together with bat shit crazy dissents from democrat DEI appointments to the S.Ct., I really appreciate you responsibly toning down the rhetoric.
> STFU already!
Why? Does it bother you to hear that your cult leader is against the rule of law and against the best interests of the country?
If so, maybe you should reconsider your allegiances. And maybe you're the one who should "STFU", as you say.
No, it doesn't bother me. Because the "rule of law" as envisaged by the left, would lead to the destruction of the West. I'd sacrifice the rule of law way before I'd sacrifice our civilization.
The rule of law is our civilization.
When properly applied!
That does not include massive faceting about as you use every manner of attack against a political opponent, with clever folk delving deeply into everything, to git 'im.
Skirting the design principles of the Constitution to weasel some path, any path, to remove your opponent from office, or, barring that, kick him from the ballot, and take a massive chunk of his estate to hamper him, this is not rule of law!
Sheer statistics of numbers of attacks belies incidental concern for rule of law!
"But he's so bad there's so much stuff!"
I'll have "How should we respond to obviously massive numbers of government attacks against our political opponent" for $800, Alex.
A Biden voter posting about "the rule of law" and "best interests of the country." Tell us all about the rule of law and best interests of the nation while admitting 20 million unvetted illegal immigrants into the nation. Then discuss the rule of law and best interests of the nation regarding the Biden organized lawfare against political opposition. Finally you can finish up with your legal defense of how Hunter selling paintings to donors while his father was sitting in the Oval office served the "interests of the country." Wipe the egg off your face.
So Professor Somin openly displays his contempt for free speech and his embrace of judicial tyranny. Trump's tariffs directly target the rampage by Justice Alexandre de Moraes who suspended Twitter, initiated a "fake news" probe that gave Supreme Court Justices the additional power of prosecutor, arrested individuals who posts offended the court, and jailed the political opposition.
It is now obvious that Ilya's rhetoric championing libertarian principles is pure, unadulterated hypocrisy. The Professor is very much in favor of consolidating power in the hands of an unelected, and unaccountable judiciary who can silence and punish its political opponents.
The Trump tariffs on Brazil are a direct action to restore freedom of speech, reign in lawfare against the political opposition, and curb judicial tyranny.
The only real question is what number of unelected judges does Mr. Somin think is sufficient to rule the world for the betterment of the uninformed and uneducated masses he despises.
The Trump tariffs on Brazil are a direct action to restore freedom of speech, reign in lawfare against the political opposition, and curb judicial tyranny.
Even were that true, Trump has no legal authority to impose tariffs on such grounds.
What the hell? You make no sense. Somin wants judges to rule? Have you been paying any attention at all? Jesus H Christ.
"The Trump tariffs on Brazil are a direct action to restore freedom of speech, reign in lawfare against the political opposition, and curb judicial tyranny."
So just to be clear, in your best-case scenario...
The President has unilateral and unchecked authority to impose whatever taxes on us he wants (tariffs) that have nothing to do with economics or any emergency.
For the stated reason that he disagrees with the judiciary and/or the level of free speech protection in another country. Heck, why bother with sanctions against bad actors!
And this is despite the Constitution granting exclusive power to impose tariffs in Article I (Congress).
I just want to make sure. Because after the rhetoric is stripped away, you are arguing that this President, and all future Presidents, can impose any tariffs, of any kind, at any amount, for any reason.
Personally, I am uncomfortable with that. It's not how our system of government works and it's not how it's supposed to work. We've never trusted that authority (nor should we) to the Executive- and I wouldn't want any President of any party (GOP, Democratic, or otherwise) to have it.
But you do you.
The President has unilateral and unchecked authority to impose whatever taxes on us he wants (tariffs) that have nothing to do with economics or any emergency.
Yes, which is why Congress should repeal this delegation. Many of the president's delegations only require him make a declaration to some effect. It's why the US embassy in Israel did not relocate to Jerusalem until Trump decided to do it. Because every 6 months, a president would declare it in the national interest and qualify for the congressional waiver. Unilateral and unchecked authority, right there in the law. Congress was free at any moment to amend the law.
Just like right now. Why I am exasperated with people bothered now by the president having unilateral and unchecked delegations of authority. You don't object to the delegations, which have existed for years across many fronts. You object to Trump using it.
I object to the delegations. Maybe someone should go through them all with a fine tooth comb, looking to remove or limit them.
> I object to the delegations. Maybe someone should go through them all with a fine tooth comb, looking to remove or limit them.
then from a results perspective, you should support Somin's case here as an opportunity to strengthen the non-delegation doctrine.
from a textualist or originalist perspective though, you might disagree that non-delegation is required Constitutionally, while still opposing delegation as a valid but poor tendency for Congress to abdicate its responsibility.
Your utter ignorance of the actions of the Brazilian Supreme Court and Justice Alexandre de Moraes are apparent. Once you educate yourself on the Brazilian Supreme Court's actions against X and against individual America citizens get back to me with another harangue about how the actions by Alexandre De Moraes are not an emergency or don't affect American tech companies and commercial individuals. I could use a good laugh.
I am quite familiar with the underlying facts. But you seem incapable of understanding the actual issues.
Let me try again, in very very very simple terms. If you are a company operating in foreign country, you have to follow the rules of that country. American tech companies follow the rules of foreign countries all the time- when they chose to operate there. You may or may not like that, but it is the case. They certainly don't have "First Amendment Rights" in those countries.
But thank you for playing. So once again, there is no emergency. And the reason you keep talking about is because the Executive unilaterally is disagreeing with the internal judicial processes of a foreign country.
It is hard to take you at your word about the underlying facts when you dismiss the claim of "emergency" off hand. Unilaterally blocking an American tech companies access to an entire nation has happened where else? There was and is no law in Brazil granting that authority to anyone. It was in fact a decision by the de Moraes faction to seize judicial control of the nation as part of the lawfare against Bolsonaro. This action was akin to what Democrats attempt in America to ban their political opposition from the ballot in 25 states for a fabricated charge of insurrection.
The only first amendment rights in Brazil exist to parrot the Supreme Court's approved position.
This is the issue that you cannot comprehend.
The issue with you is don't know the difference between the courts and politics. You have the mindset that unelected and unaccountable judges determine what an emergency is instead of the democratically elected representatives of the people. Determining an emergency is a political and not a legal issue.
It is an emergency and the tariffs will be upheld by SCOTUS if a longer court does not do so because tyrannical judges do not rule America the way they do Brazil.
I don't know what the word "unilaterally" means here, but lots of places. China's obviously the biggest and most important one.
I do like how you pretend to be an expert on Brazilian law now, though.
I made this point commenting on a different Somin blog post, but will make it again. He continues to conflate his policy preferences with (il)legality.
Whether it is a 5% or a 50% tariff being imposed makes no legal difference. Either the president has been legally delegated the power, or he hasn't. A greater harm resulting does not make it potentially more illegal.
Of course, that doesn't stop Somin from rehashing is parade of horribles, with which I mostly agree. It's also beside the point.
Being a lawyer, I would also expect him to understand his colloquial understanding of "Brazil's prosecution of Bolsonaro is pretty obviously not an 'emergency' or an 'unusual and extraordinary threat' to the US economy or national security". Currently we have 48 current declared emergencies in effect, which would probably surprise the man on the street. The president can often declare one whether it is justified or not, being a legal fiction he's entitled to enact. In this case, it seems yet another foreign policy determination that Congress, having authorized it as a trigger, cannot be second guessed by other branches. We'll see what the Federal Circuit and SCOTUS decides.
Somin writes: "The president's attempt to use tariff policy to punish Brazil for prosecuting one of his political allies" is one way to describe it. But that political allies part seems gratuitous and besides the point. Another way to say it would be "for prosecuting the Brazilian president's political opponent." The United States often imposes sanctions because of who we decide is a friend or foe. The "we who decides" being the president, not a National Security Council staffer. A critic such as Somin casting it as a conflict of interest is irrelevant, and indeed a rerun of the faux Ukraine impeachment narrative.
What do you think the word "Major" in "Major Questions Doctrine" refers to?
I told you in the last comment section, that's not how any of that works. A delegation's legal legitimacy does not depend on some outside, subjective scope of possible harm. That's the opposite of the rule of law, totally subjective according to the next judge's decision.
If this were true, we could probably find a single district judge in Texas who would strike down most of the regulatory administrative state.
I don't know how you're using the word "subjective" here. But that is how it works; the MQD is based on the premise that Congress should be deemed not to have authorized the president to issue regulations/policies that have a (wait for it) major impact, without the statute in question making it very clear that Congress so intended.
And I told you, it's bogus to insist that the MQD is only triggered if the president imposes high/many tariffs on multiple countries, like Somin is implicitly arguing with his conflation of policy preferences with legality. It's a subjective standard to try and describe that as major. It's not the amount, it's the blank check grant of authority, even if rarely used.
If this tariff authority were an unconstitutional delegation under the MQD, all it would take to justify ruling this unconstitutional under the MQD would be one product tariffed from one country at 1%. Either it's constitutional to delegate unlimited tariff authority, or it's not. No such thing as being a little bit unconstitutional, depending on how it's used. It's unconstitutional because the tariff could just as easily by 150% as 1%, as Trump as just demonstrated.
Now if Congress put a cap limiting the tariff amount, or their duration without follow-on congressional approval, that would probably not run afoul of MQD, because Congress has delegated with guidelines and limits. Since Somin doesn't believe in any border or trade restrictions, he obviously wouldn't agree with that. But then, that's the fundamental problem with his advocacy: he won't acknowledge that some border restrictions are ever legally legitimate.
You fundamentally misunderstand the MQD. The MQD is not a claim that anything is "unconstitutional." You are mixing it up with the nondelegation doctrine. (People have argued both with respect to Trump's tariffs, but we're discussing the MQD here.) The MQD is a canon of statutory interpretation.
And it does not turn on whether Trump actually raises tariffs by 1% or 50%; it turns on whether the relevant statute supposedly allows Trump to raise it by 50%.
"What do you think the word "Major" in "Major Questions Doctrine" refers to?"
He probably thinks it comes from a Modern Major-General.
Based on vibes, that guy has to be a Gilbert & Sullivan fan, right?
"He probably thinks it comes from a Modern Major-General."
A parody of the Modern Major General song which may or may not be appropriate:
https://www.youtube.com/watch?v=k-LTRwZb35A&ab_channel=RandyRainbow
Sanctions are imposed on a foreign country; tariffs are imposed on Americans.
I agree. That's why oppose Congress delegating to any president the authority to set tariffs. These laws should be repealed.
What you said doesn't make them unconstitutional. Especially since SCOTUS just decided FCC v Consumers Research. When did my congressman vote on that government mandated surcharge amount?
If, as you say, it is true that the President can declare an emergency for any reason at all, unlike with other declared emergencies, this particular declared emergency gives the president the power to do something (i.e. impose tariffs) that is expressly Congress' power in the constitution, for any reason at all. So if that is "allowed" under IEEPA, it renders this component of the IEEPA an unconstitutional delegation of power. I actually like that argument and think that it's more likely to prevail with this supreme court than any other.
Consider if congress were to pass another piece of legislation that the president could simply pass any tax in the event of a declared emergency; after all, the government needs to raise money to, say, fight a war, which is a more squarely an emergency than the present situation. Well, that would be exactly the same scenario from a constitutional standpoint. Would that legislation be constitutional?
> The president can often declare one whether it is justified or not, being a legal fiction he's entitled to enact.
shouldn't legal fictions be presumed dubious and subject to heightened scrutiny? legal fictions are by definition ways to bend existing law to cover a use case the law wasn't originally intended for - which should give any Originalist pause. they commonly result in abuse - e.g. asset forfeiture claims.
if the enabling clause simply requires the President to say the magic word "emergency," without any opportunity for judicial review, the clause is basically meaningless. and it's Textually dishonest to interpret load-bearing clauses as having no (or merely symbolic) meaning.
Trump got 77 Million votes (and more importantly, 312 Electrical ones)
How many did you get?
Frank
Number of votes is not relevant to determining if these tariffs are legal or not.
What a wonderful observation.
Given his momentous landslide victory over an octogenarian eggplant, perhaps he could leverage his majorities in both legislative chambers to accomplish his agenda - you know, like how the Constitution kind of directs?
Dictators look out for each other.
But exports to the US are only about 11% of Brazil's total exports, or just less than 2 percent of Brazil’s GDP.
So, Brazil's current government would have an easier time of just telling Trump to go scratch. US consumers and businesses that like/sell stuff from Brazil will bear the brunt of any suffering.
>It's an obvious abuse of emergency powers
People keep making these claims yet the courts keep upholding his actions.
Maybe it's *not so obvious* then?
Somin is blinded by his TDS.
Congress has the power to raise taxes, and explicitely, tariffs. Did any control they gave the president include things not related to revenue, trade imbalance, or war and security?
Don't know. Asking for a friend.
The courts to have considered these issues did not uphold his actions, so far.
You'll note Trump did not apply this to Turkey. Maybe because Turkey is NATO and treating them with kid gloves has a larger interest.
Or maybe because the Turkey guy is a strong man, and the opponent arrested and kicked from the ballot is not, while the disfavored Brasil guy is the strong man out of power.
Puzzling love of strong men has been a feature. I guess we'll learn more when he makes his big announcement about Russia on Monday.
To give more credit than is probably due, there's a technique of buttering up dictators publicly in hopes they do the right thing. Back in the day Bush, Sr. praised Marcos' "committment to freedom and democracy" and just got savaged for it.
If one didn't know better.
Trump is interested in Bolsonaro because he ran out of American insurrectionists to pardon.