My New Atlantic Article About Our Win in the Tariff Case

The Atlantic just published my article  (gift link) about the tariff ruling decided by the Supreme Court yesterday, in which I was co-counsel for the plaintiffs in one of the three cases before the justices. The article covers many issues raised by the case, including major questions, nondelegation, implications for the rule of law, and Trump’s plan to use Section 122 to impose massive new tariffs. Here is an excerpt:

In a 6–3 decision yesterday, the Supreme Court rightly ruled that, under the International Emergency Economic Powers Act of 1977, the president does not have the power to “impose tariffs on imports from any country, of any product, at any rate, for any amount of time.” The ruling is a major victory for the constitutional separation of powers, rule of law, and millions of American consumers and businesses harmed by these tariffs.

This decision spared America from a dangerous, unconstitutional path. Under President Trump’s interpretation of the law, the president would have had nearly unlimited tariff authority, similar to that of an absolute monarch. That undermines basic constitutional principles. The Framers of the Constitution had sought to ensure that the president would not be able to repeat the abuses of English kings, who imposed taxes without legislative authorization….

Trump’s position had multiple flaws. IEEPA does not even mention tariffs, nor any synonyms such as duties and imposts. The law does authorize the president to “regulate” certain types of international transactions in the event of an “emergency” that amounts to an “unusual and extraordinary threat” to the United States. But the tariff authority and the power to “regulate” foreign commerce are listed in separate clauses of the Constitution. And, as Chief Justice John Roberts noted in his opinion for the Court, the tariff authority is part of the power to tax, an authority the Framers of the Constitution carefully reserved to Congress because they had “just fought a revolution motivated in large part by ‘taxation without representation.'” Furthermore, during the previous nearly 50-year history of IEEPA, Roberts continued, “no President has invoked the statute to impose any tariffs—let alone tariffs of this magnitude and scope….”

Three of the justices in the majority—Roberts, Neil Gorsuch, and Amy Coney Barrett—also concluded that the Trump administration’s interpretation of IEEPA goes against what has become known as the “major questions” doctrine, which requires Congress to “speak clearly” when authorizing the executive to make “decisions of vast economic and political significance….”

In addition to upholding the separation of powers, the decision is a victory for the rule of law, which requires that major legal rules be clearly established by legislation, not subject to the whims of one person. Since first imposing the Liberation Day tariffs, Trump has repeatedly suspended and reimposed various elements of them. He has also imposed or threatened to impose IEEPA tariffs for a variety of other purposes, such as countering the supposed threat of foreign-made movies, punishing Brazil for prosecuting its former president for attempting to launch a coup to stay in power after losing an election, and most recently castigating eight European nations opposed to his plan to seize Greenland. Such gyrations undermine the stable legal environment essential for businesses, consumers, and investors, and create endless opportunities to reward cronies and punish political adversaries. Studies show that firms contributing to the Republican Party were disproportionately likely to receive exemptions from tariffs imposed during Trump’s first term, while firms contributing to Democrats were more likely to have to pay. If allowed to stand, the IEEPA tariffs would have created much greater opportunities for such corruption….

The administration may try to reimpose many of the tariffs using other statutes… But those laws have various constraints that would make it hard for the president to simply impose unlimited tariffs, as he could have done under his interpretation of IEEPA. As Chief Justice Roberts noted in his opinion yesterday, “When Congress has delegated its tariff powers, it has done so in explicit terms, and subject to strict limits…” If Trump or a future president does claim that those other statutes give him unlimited power, tariffs imposed based on any such theory would themselves be subject to legal challenges. Yesterday’s decision signals that a majority of the Court is seriously skeptical of claims of sweeping executive tariff authority.

For a compendium of  all my writings about the tariff litigation, see here.