The Volokh Conspiracy
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Liberty Justice Center Files Lawsuit Challenging Trump's Section 122 Tariffs
LJC is the group with which I worked on the IEEPA tariff case decided by the Supreme Court.
Today, the Liberty Justice Center filed, Burlap and Barrel, Inc. v. Trump, a lawsuit challenging Donald Trump's massive new Section 122 tariffs. LJC is the same group that I worked with on V.O.S. Selections v. Trump, the IEEPA tariff case decided by the Supreme Court last month. I am not one of the attorneys on this new case. But I completely support it and its objectives. This case is the second challenging the Section 122 tariffs, following one filed by 24 state governments, last week.
The LJC complaint is available here. Here is an excerpt from LJC's description of the new case:
On March 9, 2026, the Liberty Justice Center filed a lawsuit in the U.S. Court of International Trade challenging President Trump's attempt to reimpose broad global tariffs under Section 122 of the Trade Act of 1974, following the Supreme Court's landmark decision striking down the prior tariff regime imposed under the International Emergency Economic Powers Act (IEEPA).
After the Supreme Court held that the IEEPA does not authorize the President to impose tariffs, the administration announced a new plan: a global tariff beginning at 10 percent imposed under Section 122, and justified as a response to alleged "fundamental international payments problems" and "large and serious United States balance‑of‑payments deficits."
But the United States is not facing such a crisis. Section 122 was designed to address short‑term, balance‑of‑payments emergencies in a fixed‑exchange‑rate world—not to impose sweeping tariffs on nearly all imports based on long-standing trade deficits.
More fundamentally, the Constitution gives Congress—not the President—the power to impose tariffs and taxes. The Supreme Court reemphasized this principle in the case that included V.O.S. Selections, Inc. v. Trump, holding that the President cannot rely on broad statutory language to claim sweeping tariff authority that Congress never clearly granted.
By attempting to stretch Section 122 into a catch‑all tariff power, the administration is once again bypassing Congress and placing the burden of unlawful tariffs on American small businesses and consumers.
LJC's clients here are businesses that import goods subject to the new tariffs, and therefore undeniably have standing to challenge them.
In a recent Boston Globe article, I explained why the enormous Section 122 tariffs are illegal. In addition to going beyond the statutory text, they also run afoul of the "major questions" doctrine, and nondelegation limits on Congress' power to delegate its authority to the executive:
The three conservative justices in the majority in [the IEEPA] decision cited…. the "major questions doctrine," which requires Congress to "speak clearly" when authorizing the executive branch to make "decisions of vast economic and political significance."
They concluded that IEEPA did not clearly grant the president sweeping tariff authority. But the same is true of Section 122. At the very least, it is far from clear that it authorizes the president to impose 15 percent tariffs on goods from virtually every nation in the world, in a situation vastly different from that which inspired the law. And the effects of Trump's Section 122 tariffs would be large enough to qualify as a "major question." Within 150 days, the tariffs would impose some $30 billion in taxes on American businesses and inflict serious damage on the economy by raising prices and disrupting production in industries that depend on imports…..
Justice Neil Gorsuch's concurring opinion in the IEEPA case also relied on the nondelegation doctrine, which limits the extent to which Congress can delegate its authority to executive discretion. The limits of delegation are far from clear. But the Supreme Court held last year that a delegation of authority to impose taxes or fees must have a "floor" and a "ceiling" and that the degree of "guidance" required from Congress is greater "when an agency action will 'affect the entire national economy' than when it addresses a narrow, technical issue." The power to impose 15 percent tariffs — the highest tariffs since the disastrous Smoot-Hawley tariffs that exacerbated the Great Depression — is unquestionably one that affects the "entire national economy." And Trump's permissive interpretation of the law would let him impose those rates at almost any time.
Section 122 does limit tariff rates to 15 percent, creating a ceiling. But in that same ruling last year, the court emphasized that even a fixed numerical ceiling is not constraining enough if it leaves the executive with what amounts to "boundless power." The power to start a Great Depression-like trade war at will surely qualifies as such.
The LJC complaint raises the major questions and nondelegation issues more clearly and fully than that filed by the states. I am glad to see these issues will be considered.
