Many prominent legal scholars and former government officials across the political spectrum have supported the lawsuit challenging Trump’s “Liberation Day” tariffs brought by the Liberty Justice Center and myself, and backed the recent US Court of International Trade decision in our favor. But the ruling does have its critics, and one of the most prominent is Harvard law Prof. Jack Goldsmith. He doesn’t quite conclude the ruling is wrong. But he clearly has serious reservations about it, outlined in a notable article on the Executive Functions substack, where he also criticizes the recent US District Court of DC (DDC) ruling against the tariffs. In this post, I explain why those reservations are generally misplaced.
As the CIT opinion emphasized, the key factor behind the decision was the “unbounded” nature of the tariff authority claimed by Trump: “The question in the two cases before the court is whether the International Emergency Economic Powers Act of 1977 (“IEEPA”) delegates…. to the President…. authority to impose unlimited tariffs on goods from nearly every country in the world.” The CIT ruled IEEPA did not grant such limitless power, and that it would be an unconstitutional delegation of legislative power if it did.
Goldsmith contends “the administration did not claim an unbounded or limitless power” because “Trump’s tariffs complied with IEEPA’s substantive and procedural requirements.” He notes that Trump declared a “national emergency” with respect to trade deficits and further claimed the deficits are an “unusual and extraordinary threat” to the US economy and national security, thus supposedly meeting IEEPA’s requirements.
But Goldsmith overlooks the fact that the administration consistently maintained that the president has absolute, unreviewable discretion to determine qualifies as a “national emergency” and an “unusual and extraordinary threat.” And if trade deficits—which are completely normal and not a threat at all—qualify as an “unusual and extraordinary threat,” so can virtually anything. This is undeniably a claim to unlimited tariff authority. And the CIT rightly concluded as much.
As CIT Judge Jane Restani put it in oral argument, the administration’s position would allow the president to impose tariffs for any “crazy” reason, such as a “peanut butter shortage.” Indeed, the hypothetical peanut shortage tariff would be less abusive and ridiculous than Trump’s trade-deficit rationale. Peanut butter shortages are at least somewhat unusual, and would be a genuine problem, whereas trade deficits are neither.
The CIT also rightly concluded that IEEPA doesn’t leave determination of what tariffs to impose entirely up to the president: “IEEPA’s provisions… impose meaningful limits on any such authority it confers.” Such boundless discretion would render the words “unusual and extraordinary threat” superfluous (thereby violating a basic rule of statutory interpretation), and also create an unconstitutional delegation of “unbounded tariff authority to the President.”
Goldsmith also criticizes the CIT and DDC’s reliance on the “major questions” doctrine, which requires Congress to “speak clearly” when authorizing the executive to make “decisions of vast economic and political significance.” Trump’s gargantuan IEEPA tariffs—starting the biggest trade war since the Great Depression and imposing some 1.4 to 2.2 trillion dollars in new taxes on Americans—raise a major question, if anything does. And the fact that no previous president has used IEEPA to impose any tariffs at all satisfy the additional criterion that MQD scrutiny is stronger when an assertion of power is unprecedented.
Goldsmith notes that a 1975 United States Court of Customs and Patent Appeals (CCPA) ruling in the Yoshida case upheld the Richard Nixon’s imposition of tariffs under the Trading with the Enemy Act (TWEA), the predecessor statute to Yoshida. But, as the CIT ruling explains at length, Yoshida did not rule that TWEA authorizes unlimited tariff authority, and indeed emphasized that such unlimited delegation would be unconstitutional. Moreover, in enacting IEEPA, Congress sought to limit previous presidential emergency powers, not perpetuate them. 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.” Using IEEPA emergency powers to address “normal ongoing problems” is precisely what Trump is trying to do here.
Goldsmith also raises (without endorsing) the possibility that MQD does not apply to policies adopted by the president, as opposed to subordinate executive branch officials. I responded to that argument in detail here.
While not addessed in our case, a similar lawsuit filed by 12 states led by Oregon and decided in the same CIT ruling, also challenged Trump’s fentanyl-related IEEPA tariffs against Canada, Mexico, and China. The CIT ruled that those tariffs were not meaningfully “deal with” any “unusual and extraordinary threat” created by fentanyl smuggling. Trump argued the tariffs address the threat by creating “leverage” against the three countries, which was not a direct enough link, according to the court. Goldsmith contends that an indirect link is enough. But if creating potential leverage against some government —including one that isn’t even causing the threat—is enough of a connection than we have a backdoor to unlimited power. Virtually any tariff can potentially be used as leverage against some government to try to get them to do something that might potentially help curb a threat.
The amount of fentanyl entering the US from Canada is negligible, and most of that from Mexico is brought in by US citizens (whom the Mexican government cannot and should not prevent from returning home). If that is enough of a linkage to an “unusual and extraordinary threat” to justify the imposition of massive tariffs under IEEPA, then anything is. Thus, CIT was right to reject Trump’s fentanyl tariffs, as well as the Liberation Day ones.
Goldsmith also criticizes the DDC decision, which unlike the CIT (which did not address this issue), ruled that IEEPA doesn’t authorize the imposition of tariffs at all. IEEPA nowhere even uses the word “tariff” or any synonym. Instead, it authorizes the president to “regulate . . . importation . . . of . . . any property in which any foreign country or a national thereof has any interest.” DDC Judge Rudolph Contreras rightly concluded that regulation and taxation are distinct powers, and thus the former does not include the latter. If the power to “regulate” includes an unlimited power to impose tariffs, then the Constitution’s grant to Congress of the power to “lay and collect Taxes, Duties, Imposts and Excises” would be superfluous, since Congress also has the authority to “regulate Commerce with foreign Nations.” At the very least, the power to “regulate” cannot create an unlimited power to impose tariffs. Judge Contreras’ opinion includes a detailed discussion of the distinction between the two powers that Goldsmith largely fails to address.
I do agree with Goldsmith that the major questions doctrine likely to be an important issue as these cases proceed on appeal. But appellate courts also have plenty of other reasons to affirm the CIT and DDC rulings against Trump’s tariffs.
reason.com (Article Sourced Website)
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