update - USSC alerted as WH spox posts personal insult to chief justice Roberts
- Thread starter mandrill
- Start date
It is.
Too much even for J. Harvie Wilkinson III of the Fourth Circuit
Serious old-school right wing judge.
How many like him on the Supreme Court?
And now he's breaking the law to target minorities.
US-born citizen being held for ICE under Florida’s new anti-immigration law
Juan Carlos Lopez-Gomez, a 20-year-old U.S. citizen, was being held in the Leon County Jail Thursday, charged with illegally entering Florida as an “unauthorized alien” — even as a supporter waved his U.S. birth certificate in court. The man, who was arrested Wednesday after a traffic stop in...
www.rawstory.com
The Constitutional Case Against Trump’s Trade War
A new lawsuit challenges Trump’s tariffs as a blatantly illegal usurpation of legislative power.
www.lawfaremedia.org
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.
Trump has partially paused the tariffs and—most recently—exempted smartphones and other electronics. But a whopping 10 percent tariff on nearly every nation in the world is still in effect, along with an enormous increase in tariffs for many Chinese goods (up to 145 percent). That is still the highest average tariff rate since 1909. And the additional massive “reciprocity” tariffs are only paused for 90 days, not canceled.
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. Claims that this is about “reciprocity” are belied by the fact that massive tariffs have been imposed even on nations, such as Switzerland (slapped with a 31 percent tariff rate) and Israel (17 percent), that impose no tariffs on U.S. goods.
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. Examples include cases invalidating President Biden’s massive student loan forgiveness program, a coronavirus vaccination mandate imposed on workers employed by firms with 100 or more employers, and a pandemic-era nationwide eviction moratorium imposed by the first Trump administration and later extended by Biden,
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. For example, the Centers for Disease Control and Prevention eviction moratorium imposed an estimated $26 billion in costs on affected landlords. The nonpartisan Tax Foundation estimates that Trump’s IEEPA tariffs will impose some $1.4 to 2.2 trillion in tax increases on Americans, over the next decade. That makes even President Biden’s dubious $400 billion student loan forgiveness plan (which the Supreme Court rightly invalidated under the major questions doctrine) seem modest by comparison.
In sum, it 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. 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. In her opinion for the Court in Gundy, liberal Justice Elena Kagan accepted that “[t]he nondelegation doctrine bars Congress from transferring its legislative power to another branch of Government.”
On Wednesday, the state of California filed a lawsuit similar to ours, but broader in focus. It challenges both the Liberation Day tariffs and earlier Trump uses of IEEPA to impose tariffs against Canada, Mexico, and China under the pretext of combating fentanyl trafficking. There are also more narrowly focused suits challenging the fentanyl-related use of IEEPA to impose tariffs on China and Canada. The fentanyl IEEPA tariffs also exceed the authority granted to the president, and violate the major questions and nondelegation doctrines, for reasons outlined by Jennifer Hillman. But they are not as egregiously illegal as the Liberation Day tariffs, because the scope of these earlier actions is narrower. I am hopeful that some or all of these plaintiffs will prevail.
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.
Our economy works best when trade is subject to the rule of law, not the whims of one man. Courts can bolster that vital principle by striking down Trump’s egregious tariff power grab.
Felons do what felons do.
And Nazi felons do what Nazi felons do.
So Thomas and Alito have announced themselves as lost causes.
This decision is interesting though in that it looks like it might be the first sign the rest of the Supremes are getting fed up with Trump Admin playing Calvinball with the procedural rulings.
We shall see what the follow up is.
