My New Lawfare Article on "The Constitutional Case Against Trump's Trade War"

Today, Lawfare published my article “The Constitutional Case Against Trump’s Trade War.” Here is an excerpt:

President Trump’s massive “Liberation Day” tariffs, imposed April 2, on goods imported from almost every country in the world are likely to do grave damage to the U.S. and world economies, impose an enormous tax increase on Americans (an average of some $1,300 per household per year), and poison relations with America’s allies. They are based in part on a completely nonsensical “reciprocity” formula, compounded by mathematical errors.

The tariffs are also a blatantly illegal usurpation of legislative power. That is why, on Monday, the Liberty Justice Center and I filed a lawsuit challenging the tariffs in court on behalf of five American import businesses severely harmed by them. We have a strong case.

Article I of the Constitution clearly gives Congress, not the president, the power to regulate “commerce with foreign nations” and to “lay and collect Taxes, Duties, Imposts and Excises.” The administration claims the tariffs are authorized by the International Emergency Economic Powers Act of 1977 (IEEPA). IEEPA gives the president authority to impose various types of sanctions in situations when there is “any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States, if the President declares a national emergency with respect to such threat.” But, as Peter Harrell points out, it doesn’t mention tariffs, and no previous president has used IEEPA to impose them.

Even if tariffs are permitted, they can be used only to address an “emergency” that amounts to an “unusual and extraordinary threat.” The supposed “emergency” here is the existence of trade deficits with various countries. An “emergency” is a sudden crisis. As a House of Representatives report leading to the enactment of IEEPA put it, the legislation is based on “a recognition that emergencies are by their nature rare and brief, and are not to be equated with normal ongoing problems.” The report adds that “[a] national emergency should be declared and emergency authorities employed only with respect to a specific set of circumstances which constitute a real emergency, and for no other purpose…. A national emergency should not be a normal state of affairs.”

There is nothing new about bilateral trade deficits. They have existed for decades and are in fact a “normal state of affairs.” Economists across the political spectrum recognize they are not actually a danger at all. America’s bilateral trade deficit with Canada or the European Union is no more a threat than is my trade deficit with my local supermarket: I buy a lot from them; they virtually never buy anything from me….

Even if courts defer to the president’s claim that trade deficits are an “emergency,” they still aren’t an “unusual and extraordinary threat.” There is nothing unusual and extraordinary about them (again, they have existed for many years), nor do they pose any genuine danger….

If there is any ambiguity over the meaning of IEEPA, courts should resolve it against the government by applying the major questions doctrine. Since 2021, the Supreme Court has invalidated several presidential initiatives under that rule, which requires Congress to “speak clearly” when authorizing the executive to make “decisions of vast economic and political significance.” If the law isn’t clear, courts must reject the executive’s assertion of power…

If Trump’s sweeping use of IEEPA to start the biggest trade war in a century is not a major question, it is hard to say what is. The magnitude of the Liberation Day tariffs exceeds that of most of the other measures declared major questions by the Supreme Court….

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…

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. The president would have the power to impose tariffs of any magnitude on any country for any reason, any time he wants. If that does not violate constitutional constraints on delegation, nothing does. That might be acceptable to those who believe there are no limits on delegation whatsoever. But both liberal and conservative Supreme Court justices have rejected that extreme view.

The article also explains how our case relates to the other three lawsuits challenging Trump’s IEEPA tariffs, filed by the state of California, the New Civil Liberties Alliance, and members of the Blackfeet Nation Native American tribe.

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