Supreme Court Decides Our Tariff Case

Today, the Supreme Court decided our case challenging Donald Trump’s massive IEEPA tariffs. In a 6-3 decision, Court rightly ruled that the International Emergency Economic Powers Act does not give the President the power to “impose tariffs on imports from any country, of any product, at any rate, for any amount of time.” It’s a major victory for the constitutional separation of powers, for free trade, and for the millions of American consumers and businesses enduring the higher taxes and higher prices as a result of these tariffs.

Our case was filed by Liberty Justice Center and myself on behalf of five small US businesses. We were later joined by prominent Supreme Court litigators Michael McConnell and Neal Katyal. Michael became our chief counsel for the Supreme Court phase of the litigation, and Neal skillfully conducted the oral argument before both the Federal Circuit and the Supreme Court. A case that had its origins in a blog post laying out some legal theories and another one recruiting potential clients went all the way to the Supreme Court and culminated in an important victory.  Earlier, we prevailed in the US Court of International Trade (the trial court with jurisdiction over cases involving trade policy) and again in the US Court of Appeals for the Federal Circuit.

Chief Justice John Roberts wrote the opinion for the Court, which concludes that IEEPA’s grant of authority to “regulate” importation in response to an emergency that qualifies as an “unusual and extraordinary threat” to the US economy, national security, or foreign policy, does not include the power to impose tariffs. He, Justice Neil Gorsuch, and Justice Amy Coney Barrett also based their conclusion in part on the major questions doctrine, which  requires Congress to “speak clearly” when authorizing the executive to make “decisions of vast economic and political significance.”  The three liberal justices – (Kagan, Sotomayor, and Jackson) did not join this part the opinion, because they argued that ordinary principles of statutory interpretation were enough to resolve the case.

The Supreme Court today also decided a case against the tariffs brought by 12 states led by the state of Oregon (they prevailed, too). The court dismissed for lack of jurisdiction the Learning Resources cases, because they held it should have been filed in the US Court of International Trade (where we filed ours).

The implications of the ruling for future administration efforts to impose tariffs are not completely clear. But I believe it will not be possible for the president to replicate the massive, sweeping worldwide tariffs he tried to do under IEEPA. Today’s ruling also signals that a majority of the Supreme Court is skeptical of claims of virtually unlimited delegation of tariff power to the president.

I want to commend the Liberty Justice Center and their litigation team led by Jeffrey Schwab for bringing this case at a time few other groups were willing to do so, and Michael and Neal and their respective firms for their extraordinary work in conducting the appellate phase of the litigation. I also want to recognize our clients for their courage in joining this cause, and enduring the resulting public and media scrutiny, and the potential risk of retaliation by the administration. Many others – too many to list here – also deserve credit and thanks. It was an honor to have played a modest role in this case, myself.

I will likely have more to say later. In the meantime, for a compendium of my previous writings related to the tariff litigation, see here.