Somin on Legal Challenges to Tariffs

At Lawfare, legal scholar Ilya Somin elaborates on "The Constitutional Case Against Trump's Trade War." The article is a good survey of the various lawsuits filed against the tariffs and is good for explaining in terms any reasonably intelligent adult can understand both the legal rationales for the challenges and what is at stake.

Much of the legal rationale may be familiar to regulars here, but I am glad to see it summed up as follows:

[I]t is difficult to deny that Trump's invocation of IEEPA to impose the Liberation Day tariffs raises a major question. And if it does, courts should use the major questions doctrine to invalidate it. To understate the point, it is far from clear that IEEPA authorizes the use of tariffs, that trade deficits are an "emergency," or that there is any "unusual and extraordinary threat." If any of these three preconditions is not clearly met, then the major questions doctrine requires the courts to strike down Trump's tariffs.

Trump's IEEPA tariffs also violate constitutional limits on delegation of congressional power to the executive. While there is much disagreement on where to draw the line, there must be at least some limit to Congress's ability to give away its lawmaking powers. Congress cannot just simply pass a law giving the president the power to establish any tariffs he wants, without limitation. Admittedly, the Supreme Court has long taken a permissive approach to delegations, upholding them so long as they are based on an "intelligible principle." But, in recent years, beginning with the 2019 case of Gundy v. United States, several conservative Supreme Court justices have expressed interest in tightening nondelegation rules.

The enormous scale of Trump's power grab runs afoul of even the most modest nondelegation constraints. If long-standing and perfectly normal bilateral trade deficits qualify as an "emergency" and an "unusual and extraordinary threat," the same can be said of virtually anything. [bold added, link omitted]

Somin's piece is also good on how fundamentally Trump's tariffs threaten the economy:

Enforcing major questions and nondelegation limits on executive power is important for practical as well as legal reasons. If one man can start a massive trade war anytime he wants for any reason, that destroys the credibility of U.S. trade agreements, undermining any incentive other nations have to trust our commitments. It also undermines the predictability businesses and investors need to make decisions on production and investments. They are unlikely to build and invest in production facilities and supply chains if these arrangements can be destroyed at any time. That is especially true in industries that require long-term contracts and other commitments. [bold added]

While I would have liked Somin to have also brought up the moral objection to Trump's tyrannical, rights-violating actions, I am not going to complain too loudly: His arguments clearly show that our livelihoods are under threat from the wild unpredictability the President has introduced into the planning of practically anyone in -- or with dealings in -- the United States.

-- CAV