The Justices Are Skeptical of the Trump Tariffs, But Are They Skeptical Enough to Strike Them Down? Some observations from yesterday's argument in Learning Resources v. Trump.

Original post on reason.com

House Republicans Just Voted To Give Even More Tariff Power Away to Trump House Republicans passed a resolution that prevents Congress from ending the national emergency Trump is using to impose ta...

#Congress #Protectionism #Tariffs #Constitution #Donald #Trump […]

[Original post on reason.com]

Original post on reason.com

House Republicans Just Voted To Give Even More Tariff Power Away to Trump House Republicans passed a resolution that prevents Congress from ending the national emergency Trump is using to impose ta...

#Congress #Protectionism #Tariffs #Constitution #Donald #Trump […]

[Original post on reason.com]

Supreme Court Will Hear Our Case Challenging Trump's Tariffs - and Two Other Related Cases The cases will be considered on an accelerated schedule.

Supreme Court Will Hear Our Case Challenging Trump's Tariffs - and Two Other Related Cases - Reason

#nondelegation #free trade #emergency powers #major questions doctrine

FCC v Consumers Research: #SCOTUS reverses #5thCir: universal-service contribution scheme, involving congressional delegation to FCC & "subdelegation" to administrator, doesn't violate #nondelegation doctrine #communications #appellatesky #lawsky baffc.net/4evkPhS

Original post on masto.ai

#Kagan writes: "Under our #nondelegation precedents, #Congress sufficiently guided & constrained the discretion that it lodged with the #FCC to implement the universal-service contribution scheme. And the FCC, in turn, has retained all decision-making authority within that sphere, relying on the […]

Original post on masto.ai

The next opinion is #FCC v. Consumers' Research [anti-woke folk]

It is by Justice #Kagan, & the vote is 6-3 again. #Gorsuch dissents, joined by #ClarenceThomas & #Alito.

www.supremecourt.gov/opinions/24pdf/24-354_08...

It holds that neither #Congress's delegation of #power to the […]

Original post on masto.ai

There are 6 cases remaining:

#FreeSpeech Coalition v. Paxton — #Texas law that requires #porn sites to verify age.

#FCC v. Consumers’ Research — consumer *protection* group devoted to fighting “#woke” corporations contends that E-Rate phone & internet subsidies for #LowIncome communities […]

Why the Major Questions Doctrine Applies to the President, Not Just Executive Agencies (NA) The Supreme Court's "major questions" doctrine (MQD) requires Congress to "speak clearly" when authorizing the executive to make "decisions of vast economic and political significance." If the statute isn't clear, courts must reject the executive's assertion of power. But the Trump Administration, like the Biden Administration before it, argues that the doctrine does not apply to assertions of power by the President, only those by lower-level executive branch officials, such as leaders of administrative agencies. This issue came up in several cases challenging executive actions by President Biden, and it has arisen again in the lawsuit challenging Trump's massive IEEPA tariffs filed by the Liberty Justice Center and myself, on behalf five small businesses. For reasons outlined in my _Lawfare_ article about the tariffs, I think it's obvious that Trump's actions run afoul of MQD: > 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,… 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…. 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. The administration, however, argues that MQD just doesn't apply to the president at all! If so, that might shield not only the tariffs but many other presidential power grabs from judicial scrutiny. Under Biden, MQD was decried by some as a tool invented by conservatives to stymie left-wing policies. But, under Trump, progressives have every reason to make use of it themselves. More generally, it's a valuable resource to protect against excessive delegation of power, and enforce the common-sense textualist rule of interpretation that a grant of major authority requires clearer authorization than one that delegates only some minor power. The claim that presidential actions are exempt from MQD has already been rejected by at least three federal courts of appeals, the Fifth, Sixth, and Eleventh Circuits. See _Louisiana v. Biden_ , 55 F.4th 1017, 1031 n.40 (5th Cir. 2022) ("delegations to the President and delegations to an agency should be treated the same under the major questions doctrine") ; _Georgia v. President of the U.S_., 46 F.4th 1283, 1295–96 (11th Cir. 2022) (holding that an assertion of power by the President under the Procurement Act is "no exception" to application of MQD); _Kentucky v. Biden_ , 23 F.4th 585, 606–08 (6th Cir. 2022) (applying MQD to a presidential directive). The Ninth Circuit went the other way in a decision that was later vacated as moot, and thus has no precedential value. _Mayes v. Biden_ , 67 F.4th 921, 932–34 (9th Cir. 2023), _vacated as moot_ , 89 F.4th 1186 (9th Cir. 2023). In a more recent ruling, _Nebraska v. Su_, the Ninth Circuit did apply MQD to a presidential action, but held that the policy did not run afoul of the doctrine because it wasn't a "transformative expansion" of executive authority. _Nebraska v. Su_ is also notable because it includes an excellent concurring opinion by Judge Ryan Nelson - a conservative Trump appointee - explaining why MQD applies to the president, not just administrative agencies: > The Supreme Court has never suggested that the President is exempt from major questions analysis. And it makes little sense to think that he is. Broad legislative delegations to the Executive Branch—whether to the President or to administrative agencies—are inherently suspect…. > > Much ink has been spilled on the "source and status" of the major questions doctrine. _Biden v. Nebraska_ , 143 S. Ct. 2355, 2376 (2023) (Barrett, J., concurring). Some view the doctrine as a substantive canon rooted in non-delegation principles. See _Nat'l Fed'n of Indep. Bus. v. Dep't of Lab._ , delegation doctrine are both "designed to protect the > separation of powers"). Others understand the doctrine as a linguistic canon—"an interpretive tool reflecting 'common sense as to the manner in which Congress is likely to delegate a policy decision of such economic and political magnitude to an administrative agency.'" _Nebraska_ , 143 S. Ct. at 2378 (Barrett, J., concurring)… Regardless of its source, the major questions doctrine does not yield because Congress delegated authority to the President and not an agency. > > Let's assume major questions is fundamentally a separation of powers doctrine. On that view, the doctrine keeps Congress in its constitutional lane, preventing it from > delegating "fundamental policy decisions" to the Executive Branch. _Indus. Union Dep't, AFL-CIO v. Am. Petrol. Inst._ , 448 U.S. 607, 687 (1980) (Rehnquist, J., concurring in the > judgment)… It makes no difference which Executive Branch officer has received an unlawful delegation: the "entire 'executive Power' belongs to the President alone." _Seila Law LLC v. Consumer Fin. Prot. Bureau_ , 591 U.S. 197, 213 (2020)…. > > Indeed, a unitary executive is entrenched in our constitutional structure. The Founders envisioned a system in which the executive power is concentrated in a single President who does not make the laws, but executes them…. The Supreme Court's major > questions cases recognize that basic premise…. > > Distinguishing between presidential and agency delegations also ignores the realities of administrative decision-making. The President is likely to be closely involved in major policies, even if they are ultimately promulgated by an agency…. > > Now assume the major questions doctrine operates as a linguistic canon that "situates text in context." _Nebraska_ , 143 S. Ct. at 2378 (Barrett, J., concurring). Here, it would > be even stranger to treat the President differently. We regularly interpret statutory grants of authority. In so doing, we recognize that Congress does not "hide elephants in > mouseholes." _Whitman v. Am. Trucking Ass'ns_ , 531 U.S. 457, 468 (2001)… Why would our normal interpretive process turn on the identity of the Executive Branch officer to whom Congress delegated power? An implausible reading of a statute is no less implausible when that statute confers authority on the President versus an agency. Notice, as Judge Nelson points out, that the distinction between presidential and agency actions is particularly indefensible under the "unitary executive" theory endorsed by many conservatives, including the Trump administration (I myself have reservations about it). Under that approach, agencies are just extensions of the president's power, and are totally subordinated to him. Any delegation of power to an agency is is really a delegation to the president, as agency officials are ultimately there to do his bidding. Judge Nelson goes on to explain why "political accountability" concerns don't justify treating supposed delegations to the president differently from those to agencies. Given extensive presidential control over agencies, the latter are subject to accountability through him. I would add that they also face accountability through congressional action. Congress can legislate to curb the power of agencies that anger public opinion. Indeed, agencies actually face greater congressional constraints than the president, because Congress can adopt legislation abolishing an agency entirely, whereas it cannot do the same to the president. Removal of the president through impeachment is much more difficult than ordinary legislation curbing agency power. Voter ignorance or partisan bias might lead the public to overlook problematic agency policies. But the same is true of those enacted by presidents. In sum, there is every reason to apply the major questions doctrine to presidential actions no less than those of agencies. The Big Boss must be kept on a tight constitutional leash no less than his subordinates.

reason.com/volokh/2025/05/02/why-th...

#Executive #Power #IEEPA #Tariffs #Donald #Trump #Free #Trade #Nondelegation

Result Details

Why the Major Questions Doctrine Applies to the President, Not Just Executive Agencies This is a ...

reason.com/volokh/2025/05/02/why-th...

#Executive #Power #Tariffs #Donald […]

[Original post on reason.com]

Why the Major Questions Doctrine Applies to the President, Not Just Executive Agencies (NA) The Supreme Court's "major questions" doctrine (MQD) requires Congress to "speak clearly" when authorizing the executive to make "decisions of vast economic and political significance." If the statute isn't clear, courts must reject the executive's assertion of power. But the Trump Administration, like the Biden Administration before it, argues that the doctrine does not apply to assertions of power by the President, only those by lower-level executive branch officials, such as leaders of administrative agencies. This issue came up in several cases challenging executive actions by President Biden, and it has arisen again in the lawsuit challenging Trump's massive IEEPA tariffs filed by the Liberty Justice Center and myself, on behalf five small businesses. For reasons outlined in my _Lawfare_ article about the tariffs, I think it's obvious that Trump's actions run afoul of MQD: > 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,… 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…. 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. The administration, however, argues that MQD just doesn't apply to the president at all! If so, that might shield not only the tariffs but many other presidential power grabs from judicial scrutiny. Under Biden, MQD was decried by some as a tool invented by conservatives to stymie left-wing policies. But, under Trump, progressives have every reason to make use of it themselves. More generally, it's a valuable resource to protect against excessive delegation of power, and enforce the common-sense textualist rule of interpretation that a grant of major authority requires clearer authorization than one that delegates only some minor power. The claim that presidential actions are exempt from MQD has already been rejected by at least three federal courts of appeals, the Fifth, Sixth, and Eleventh Circuits. See _Louisiana v. Biden_ , 55 F.4th 1017, 1031 n.40 (5th Cir. 2022) ("delegations to the President and delegations to an agency should be treated the same under the major questions doctrine") ; _Georgia v. President of the U.S_., 46 F.4th 1283, 1295–96 (11th Cir. 2022) (holding that an assertion of power by the President under the Procurement Act is "no exception" to application of MQD); _Kentucky v. Biden_ , 23 F.4th 585, 606–08 (6th Cir. 2022) (applying MQD to a presidential directive). The Ninth Circuit went the other way in a decision that was later vacated as moot, and thus has no precedential value. _Mayes v. Biden_ , 67 F.4th 921, 932–34 (9th Cir. 2023), _vacated as moot_ , 89 F.4th 1186 (9th Cir. 2023). In a more recent ruling, _Nebraska v. Su_, the Ninth Circuit did apply MQD to a presidential action, but held that the policy did not run afoul of the doctrine because it wasn't a "transformative expansion" of executive authority. _Nebraska v. Su_ is also notable because it includes an excellent concurring opinion by Judge Ryan Nelson - a conservative Trump appointee - explaining why MQD applies to the president, not just administrative agencies: > The Supreme Court has never suggested that the President is exempt from major questions analysis. And it makes little sense to think that he is. Broad legislative delegations to the Executive Branch—whether to the President or to administrative agencies—are inherently suspect…. > > Much ink has been spilled on the "source and status" of the major questions doctrine. _Biden v. Nebraska_ , 143 S. Ct. 2355, 2376 (2023) (Barrett, J., concurring). Some view the doctrine as a substantive canon rooted in non-delegation principles. See _Nat'l Fed'n of Indep. Bus. v. Dep't of Lab._ , delegation doctrine are both "designed to protect the > separation of powers"). Others understand the doctrine as a linguistic canon—"an interpretive tool reflecting 'common sense as to the manner in which Congress is likely to delegate a policy decision of such economic and political magnitude to an administrative agency.'" _Nebraska_ , 143 S. Ct. at 2378 (Barrett, J., concurring)… Regardless of its source, the major questions doctrine does not yield because Congress delegated authority to the President and not an agency. > > Let's assume major questions is fundamentally a separation of powers doctrine. On that view, the doctrine keeps Congress in its constitutional lane, preventing it from > delegating "fundamental policy decisions" to the Executive Branch. _Indus. Union Dep't, AFL-CIO v. Am. Petrol. Inst._ , 448 U.S. 607, 687 (1980) (Rehnquist, J., concurring in the > judgment)… It makes no difference which Executive Branch officer has received an unlawful delegation: the "entire 'executive Power' belongs to the President alone." _Seila Law LLC v. Consumer Fin. Prot. Bureau_ , 591 U.S. 197, 213 (2020)…. > > Indeed, a unitary executive is entrenched in our constitutional structure. The Founders envisioned a system in which the executive power is concentrated in a single President who does not make the laws, but executes them…. The Supreme Court's major > questions cases recognize that basic premise…. > > Distinguishing between presidential and agency delegations also ignores the realities of administrative decision-making. The President is likely to be closely involved in major policies, even if they are ultimately promulgated by an agency…. > > Now assume the major questions doctrine operates as a linguistic canon that "situates text in context." _Nebraska_ , 143 S. Ct. at 2378 (Barrett, J., concurring). Here, it would > be even stranger to treat the President differently. We regularly interpret statutory grants of authority. In so doing, we recognize that Congress does not "hide elephants in > mouseholes." _Whitman v. Am. Trucking Ass'ns_ , 531 U.S. 457, 468 (2001)… Why would our normal interpretive process turn on the identity of the Executive Branch officer to whom Congress delegated power? An implausible reading of a statute is no less implausible when that statute confers authority on the President versus an agency. Notice, as Judge Nelson points out, that the distinction between presidential and agency actions is particularly indefensible under the "unitary executive" theory endorsed by many conservatives, including the Trump administration (I myself have reservations about it). Under that approach, agencies are just extensions of the president's power, and are totally subordinated to him. Any delegation of power to an agency is is really a delegation to the president, as agency officials are ultimately there to do his bidding. Judge Nelson goes on to explain why "political accountability" concerns don't justify treating supposed delegations to the president differently from those to agencies. Given extensive presidential control over agencies, the latter are subject to accountability through him. I would add that they also face accountability through congressional action. Congress can legislate to curb the power of agencies that anger public opinion. Indeed, agencies actually face greater congressional constraints than the president, because Congress can adopt legislation abolishing an agency entirely, whereas it cannot do the same to the president. Removal of the president through impeachment is much more difficult than ordinary legislation curbing agency power. Voter ignorance or partisan bias might lead the public to overlook problematic agency policies. But the same is true of those enacted by presidents. In sum, there is every reason to apply the major questions doctrine to presidential actions no less than those of agencies. The Big Boss must be kept on a tight constitutional leash no less than his subordinates.

reason.com/volokh/2025/05/02/why-th...

#Executive #Power #Tariffs #Donald #Trump #Free #Trade #Nondelegation

Result Details

Washington Outsider Report Podcast Interview on the Trump Tariff Litigation (NA) Lawyer/podcaster Irina Tsukerman interviewed about the Trump tariff litigation for her Washington Outsider report podcast. The interview was conducted before the recent filing of new cases challenging Trump's IEEPA tariffs by twelve states led by Oregon and the Pacific Legal Foundation. Thus, we couldn't cover those two suits. But, otherwise, this is the most extensive interview I have done on the tariff litigation yet. Among other things, we discussed the case filed earlier by the Liberty Justice Center and myself. I cover the legal issues at stake in more detail in my _Lawfare_ article, "The Constitutional Case Against Trump's Trade War." Here is the video of the podcast:

reason.com/volokh/2025/04/30/washin...

#Executive #Power #Tariffs #Donald #Trump #Free #Trade #Nondelegation

Result Details

Washington Outsider Report Podcast Interview on the Trump Tariff Litigation I was interviewed by ...

reason.com/volokh/2025/04/30/washin...

#Executive #Power #Tariffs #Donald #Trump #Free […]

[Original post on reason.com]

Washington Outsider Report Podcast Interview on the Trump Tariff Litigation (NA) Lawyer/podcaster Irina Tsukerman interviewed about the Trump tariff litigation for her Washington Outsider report podcast. The interview was conducted before the recent filing of new cases challenging Trump's IEEPA tariffs by twelve states led by Oregon and the Pacific Legal Foundation. Thus, we couldn't cover those two suits. But, otherwise, this is the most extensive interview I have done on the tariff litigation yet. Among other things, we discussed the case filed earlier by the Liberty Justice Center and myself. I cover the legal issues at stake in more detail in my _Lawfare_ article, "The Constitutional Case Against Trump's Trade War." Here is the video of the podcast:

reason.com/volokh/2025/04/30/washin...

#Executive #Power #IEEPA #Tariffs #Donald #Trump #Free #Trade #Nondelegation

Result Details

Bipartisan Group of Prominent Legal Scholars and Former Government Officials Files Amicus Brief Supporting Our Case Challenging Trump's "Liberation Day" Tariffs (NA) A bipartisan group of prominent legal scholars and former government officials have filed an amicus brief supporting the lawsuit against Donald Trump's "Liberation Day" tariffs, recently filed by the Liberty Justice Center and myself, on behalf of five US businesses severely harmed by the policy. The brief unites big-name constitutional law scholars across the political spectrum in a way I have rarely seen. Legal scholars on the brief include Steve Calabresi (Northwestern), Harold Koh (Yale), Richard Epstein (NYU), Michael McConnell (Stanford, also former federal judge), Alan Sykes (Stanford), and Gerard Magliocca (Univ. of Indiana). Steve Calabresi is a famed conservative constitutional law scholar and co-founder of the Federalist Society. Michael McConnell is also one of nation's leading conservative/originalist constitutional law scholars, and Richard Epstein is probably the world's leading libertarian legal scholar. Calabresi literally (with Christopher Yoo) wrote the book on unitary executive theory. If he says an assertion of executive power exceeds constitutional bounds, it almost certainly does! McConnell is also a leading expert on executive power. Koh, Sykes, and Magliocca are leading progressive scholars. Koh is one of the nation's leading experts on the constitutional law of foreign affairs, and Sykes on international economic and trade law. Magliocca is a prominent writer on constitutional history. Former government officials joining the brief include former Attorney General Michael Mukasey, former Virginia Governor and Senator George Allen, former Senator and Secretary of Defense Charles Hagel, and more. I never would have expected to see Richard Epstein, Steve Calabresi, and Harold Koh all on the same brief on a major issue. But here they are, together opposing "taxation by proclamation." Donald Trump brought them together. He alone could do it! Many thanks to Josh Claybourn and Gerard Magliocca for their work bringing this group together. Here is an excerpt from the brief's summary of argument: > What unites these amici is a shared conviction that process matters—that how > we govern is as vital as what we decide. The powers to tax, to regulate commerce, and > to shape the nation's economic course must remain with Congress. They cannot drift > silently into the hands of the President through inertia, inattention, or creative readings of statutes never meant to grant such authority. That conviction is not partisan. It is constitutional. And it strikes at the heart of this case. > > This dispute is not about the wisdom of tariffs or the politics of trade. It is about who holds the power to tax the American people. May a President, absent a clear delegation from Congress and without guidance that amounts to an intelligible principle, unilaterally impose sweeping tariffs under laws never designed for that purpose? This is not a debate over outcomes but a test of structure. It asks not what should happen, but who decides. > > The Constitution gives a clear answer. Article I vests Congress—not the President—with the power to "lay and collect Taxes, Duties, Imposts and Excises," and to "regulate Commerce with foreign Nations." Unless Congress has delegated that authority through a valid and clearly bounded framework, the President may not impose tariffs…. > > In April 2025, President Trump proclaimed a sweeping tariff regime that touches nearly every imported good sold in the United States…. These levies did not arise from legislation. They were not the product of congressional debate or any statutory process. Nor were they supported by specific findings under existing trade laws. Instead, they were imposed unilaterally, by presidential proclamation…. > > But no statute authorizes what the President has done. The laws cited permit limited and targeted actions under narrow conditions. They do not authorize sweeping economic realignment. They do not permit unilateral taxation of vast sectors of the U.S. economy. These duties came not from Congress, but from a claim of executive power detached from constitutional limits…. > > IEEPA, the central statute invoked, cannot bear this weight. Enacted in 1977 to rein in presidential overreach, IEEPA allows the President to impose sanctions in response to genuine emergencies—not to reorder the economy in response to long-term trends. Its legislative history is clear: Congress never intended it as a backdoor for permanent tax policy, nor as a means of sidestepping Article I. > > The core principle urged by amici is this: IEEPA and related statutes do not grant the President the power to impose tariffs of this kind or scope. That power remains squarely within the legislative domain. The Constitution places decisions about taxation and commerce in Congress's hands—not as a formality, but as a structural safeguard of democratic accountability….. > > This case requests this Court apply the principles which have been reaffirmed time and again: that Congress makes the law, and the Executive enforces it; that major policies require explicit legislation; and that the Constitution does not permit taxation by proclamation. These principles are neither new nor partisan. They are the foundation of the American republic. > > The stakes here are immediate and profound—not because of any particular trade policy, but because of the process by which that policy was imposed. For decades, the United States has anchored a global trading system built on transparency, deliberation, and the rule of law. That stability is jeopardized when core powers—like the power to tax—are exercised unilaterally, without congressional input, statutory grounding, or public explanation. The President's tariff proclamations bypass the constitutional framework that lends legitimacy and predictability to American lawmaking. Already, foreign governments are reexamining their trade commitments in response. If courts permit this path to stand unreviewed, it will invite escalating disruption—not just to international commerce, but to the very norms that sustain constitutional governance. The Court's intervention is not merely appropriate; it is essential to reaffirm that in a republic, process cannot be subordinated to expediency.

reason.com/volokh/2025/04/23/bipart...

#Executive #Power #Tariffs #Donald #Trump #Free #Trade #Nondelegation

Result Details

Bipartisan Group of Prominent Legal Scholars and Former Government Officials Files Amicus Brief Supporting Our Case Challenging Trump's "Liberation Day" Tariffs (NA) A bipartisan group of prominent legal scholars and former government officials have filed an amicus brief supporting the lawsuit against Donald Trump's "Liberation Day" tariffs, recently filed by the Liberty Justice Center and myself, on behalf of five US businesses severely harmed by the policy. The brief unites big-name constitutional law scholars across the political spectrum in a way I have rarely seen. Legal scholars on the brief include Steve Calabresi (Northwestern), Harold Koh (Yale), Richard Epstein (NYU), Michael McConnell (Stanford, also former federal judge), Alan Sykes (Stanford), and Gerard Magliocca (Univ. of Indiana). Steve Calabresi is a famed conservative constitutional law scholar and co-founder of the Federalist Society. Michael McConnell is also one of nation's leading conservative/originalist constitutional law scholars, and Richard Epstein is probably the world's leading libertarian legal scholar. Calabresi literally (with Christopher Yoo) wrote the book on unitary executive theory. If he says an assertion of executive power exceeds constitutional bounds, it almost certainly does! McConnell is also a leading expert on executive power. Koh, Sykes, and Magliocca are leading progressive scholars. Koh is one of the nation's leading experts on the constitutional law of foreign affairs, and Sykes on international economic and trade law. Magliocca is a prominent writer on constitutional history. Former government officials joining the brief include former Attorney General Michael Mukasey, former Virginia Governor and Senator George Allen, former Senator and Secretary of Defense Charles Hagel, and more. I never would have expected to see Richard Epstein, Steve Calabresi, and Harold Koh all on the same brief on a major issue. But here they are, together opposing "taxation by proclamation." Donald Trump brought them together. He alone could do it! Many thanks to Josh Claybourn and Gerard Magliocca for their work bringing this group together. Here is an excerpt from the brief's summary of argument: > What unites these amici is a shared conviction that process matters—that how > we govern is as vital as what we decide. The powers to tax, to regulate commerce, and > to shape the nation's economic course must remain with Congress. They cannot drift > silently into the hands of the President through inertia, inattention, or creative readings of statutes never meant to grant such authority. That conviction is not partisan. It is constitutional. And it strikes at the heart of this case. > > This dispute is not about the wisdom of tariffs or the politics of trade. It is about who holds the power to tax the American people. May a President, absent a clear delegation from Congress and without guidance that amounts to an intelligible principle, unilaterally impose sweeping tariffs under laws never designed for that purpose? This is not a debate over outcomes but a test of structure. It asks not what should happen, but who decides. > > The Constitution gives a clear answer. Article I vests Congress—not the President—with the power to "lay and collect Taxes, Duties, Imposts and Excises," and to "regulate Commerce with foreign Nations." Unless Congress has delegated that authority through a valid and clearly bounded framework, the President may not impose tariffs…. > > In April 2025, President Trump proclaimed a sweeping tariff regime that touches nearly every imported good sold in the United States…. These levies did not arise from legislation. They were not the product of congressional debate or any statutory process. Nor were they supported by specific findings under existing trade laws. Instead, they were imposed unilaterally, by presidential proclamation…. > > But no statute authorizes what the President has done. The laws cited permit limited and targeted actions under narrow conditions. They do not authorize sweeping economic realignment. They do not permit unilateral taxation of vast sectors of the U.S. economy. These duties came not from Congress, but from a claim of executive power detached from constitutional limits…. > > IEEPA, the central statute invoked, cannot bear this weight. Enacted in 1977 to rein in presidential overreach, IEEPA allows the President to impose sanctions in response to genuine emergencies—not to reorder the economy in response to long-term trends. Its legislative history is clear: Congress never intended it as a backdoor for permanent tax policy, nor as a means of sidestepping Article I. > > The core principle urged by amici is this: IEEPA and related statutes do not grant the President the power to impose tariffs of this kind or scope. That power remains squarely within the legislative domain. The Constitution places decisions about taxation and commerce in Congress's hands—not as a formality, but as a structural safeguard of democratic accountability….. > > This case requests this Court apply the principles which have been reaffirmed time and again: that Congress makes the law, and the Executive enforces it; that major policies require explicit legislation; and that the Constitution does not permit taxation by proclamation. These principles are neither new nor partisan. They are the foundation of the American republic. > > The stakes here are immediate and profound—not because of any particular trade policy, but because of the process by which that policy was imposed. For decades, the United States has anchored a global trading system built on transparency, deliberation, and the rule of law. That stability is jeopardized when core powers—like the power to tax—are exercised unilaterally, without congressional input, statutory grounding, or public explanation. The President's tariff proclamations bypass the constitutional framework that lends legitimacy and predictability to American lawmaking. Already, foreign governments are reexamining their trade commitments in response. If courts permit this path to stand unreviewed, it will invite escalating disruption—not just to international commerce, but to the very norms that sustain constitutional governance. The Court's intervention is not merely appropriate; it is essential to reaffirm that in a republic, process cannot be subordinated to expediency.

reason.com/volokh/2025/04/23/bipart...

#Executive #Power #Tariffs #Donald #Trump #Free #Trade #Nondelegation

Result Details

Bipartisan Group of Prominent Legal Scholars and Former Government Officials Files Amicus Brief Supporting Our Case Challenging Trump's "Liberation Day" Tariffs (NA) A bipartisan group of prominent legal scholars and former government officials have filed an amicus brief supporting the lawsuit against Donald Trump's "Liberation Day" tariffs, recently filed by the Liberty Justice Center and myself, on behalf of five US businesses severely harmed by the policy. The brief unites big-name constitutional law scholars across the political spectrum in a way I have rarely seen. Legal scholars on the brief include Steve Calabresi (Northwestern), Harold Koh (Yale), Richard Epstein (NYU), Michael McConnell (Stanford, also former federal judge), Alan Sykes (Stanford), and Gerard Magliocca (Univ. of Indiana). Steve Calabresi is a famed conservative constitutional law scholar and co-founder of the Federalist Society. Michael McConnell is also one of nation's leading conservative/originalist constitutional law scholars, and Richard Epstein is probably the world's leading libertarian legal scholar. Calabresi literally (with Christopher Yoo) wrote the book on unitary executive theory. If he says an assertion of executive power exceeds constitutional bounds, it almost certainly does! McConnell is also a leading expert on executive power. Koh, Sykes, and Magliocca are leading progressive scholars. Koh is one of the nation's leading experts on the constitutional law of foreign affairs, and Sykes on international economic and trade law. Magliocca is a prominent writer on constitutional history. Former government officials joining the brief include former Attorney General Michael Mukasey, former Virginia Governor and Senator George Allen, former Senator and Secretary of Defense Charles Hagel, and more. I never would have expected to see Richard Epstein, Steve Calabresi, and Harold Koh all on the same brief on a major issue. But here they are, together opposing "taxation by proclamation." Donald Trump brought them together. He alone could do it! Many thanks to Josh Claybourn and Gerard Magliocca for their work bringing this group together. Here is an excerpt from the brief's summary of argument: > What unites these amici is a shared conviction that process matters—that how > we govern is as vital as what we decide. The powers to tax, to regulate commerce, and > to shape the nation's economic course must remain with Congress. They cannot drift > silently into the hands of the President through inertia, inattention, or creative readings of statutes never meant to grant such authority. That conviction is not partisan. It is constitutional. And it strikes at the heart of this case. > > This dispute is not about the wisdom of tariffs or the politics of trade. It is about who holds the power to tax the American people. May a President, absent a clear delegation from Congress and without guidance that amounts to an intelligible principle, unilaterally impose sweeping tariffs under laws never designed for that purpose? This is not a debate over outcomes but a test of structure. It asks not what should happen, but who decides. > > The Constitution gives a clear answer. Article I vests Congress—not the President—with the power to "lay and collect Taxes, Duties, Imposts and Excises," and to "regulate Commerce with foreign Nations." Unless Congress has delegated that authority through a valid and clearly bounded framework, the President may not impose tariffs…. > > In April 2025, President Trump proclaimed a sweeping tariff regime that touches nearly every imported good sold in the United States…. These levies did not arise from legislation. They were not the product of congressional debate or any statutory process. Nor were they supported by specific findings under existing trade laws. Instead, they were imposed unilaterally, by presidential proclamation…. > > But no statute authorizes what the President has done. The laws cited permit limited and targeted actions under narrow conditions. They do not authorize sweeping economic realignment. They do not permit unilateral taxation of vast sectors of the U.S. economy. These duties came not from Congress, but from a claim of executive power detached from constitutional limits…. > > IEEPA, the central statute invoked, cannot bear this weight. Enacted in 1977 to rein in presidential overreach, IEEPA allows the President to impose sanctions in response to genuine emergencies—not to reorder the economy in response to long-term trends. Its legislative history is clear: Congress never intended it as a backdoor for permanent tax policy, nor as a means of sidestepping Article I. > > The core principle urged by amici is this: IEEPA and related statutes do not grant the President the power to impose tariffs of this kind or scope. That power remains squarely within the legislative domain. The Constitution places decisions about taxation and commerce in Congress's hands—not as a formality, but as a structural safeguard of democratic accountability….. > > This case requests this Court apply the principles which have been reaffirmed time and again: that Congress makes the law, and the Executive enforces it; that major policies require explicit legislation; and that the Constitution does not permit taxation by proclamation. These principles are neither new nor partisan. They are the foundation of the American republic. > > The stakes here are immediate and profound—not because of any particular trade policy, but because of the process by which that policy was imposed. For decades, the United States has anchored a global trading system built on transparency, deliberation, and the rule of law. That stability is jeopardized when core powers—like the power to tax—are exercised unilaterally, without congressional input, statutory grounding, or public explanation. The President's tariff proclamations bypass the constitutional framework that lends legitimacy and predictability to American lawmaking. Already, foreign governments are reexamining their trade commitments in response. If courts permit this path to stand unreviewed, it will invite escalating disruption—not just to international commerce, but to the very norms that sustain constitutional governance. The Court's intervention is not merely appropriate; it is essential to reaffirm that in a republic, process cannot be subordinated to expediency.

reason.com/volokh/2025/04/23/bipart...

#Executive #Power #Tariffs #Donald #Trump #Free #Trade #Nondelegation

Result Details

Bipartisan Group of Prominent Legal Scholars and Former Government Officials Files Amicus Brief S […]

[Original post on reason.com]

Why Trump's "Liberation Day" Tariffs are Illegal They weren't authorized by Congr...

reason.com/volokh/2025/04/03/why-tr...

#Executive #Power #Tariffs #Donald #Trump #Free #Trade #Nondelegation

Event Attributes

Challenging Trump's Tariffs Under the Major Question Doctrine Georgetown law Prof. Jennifer H...

reason.com/volokh/2025/03/29/challe...

#Tariffs #Canada #Donald #Trump #Free #Trade #Mexico #Nondelegation

Event Attributes

US supreme court may revive doctrine that would curb federal agencies’ power Nondelegation doctrine is viewed by some as a potentially extreme power grab by unelected rightwing judges

Things could quickly get worse if #SCOTUS gets involved, goes nuclear w/ #nondelegation.

"Nondelegation?"

Remember that old RW idea to remove the power to write rules & regs from Federal agencies, put it in Congress' dysfunctional hands?

Chaos multiplier.

www.theguardian.com/us-news/2025...

US supreme court may revive doctrine that would curb federal agencies’ power
www.theguardian.com/us-news/2025...

Emergency! Call your reps now! If you need a script I can help you!

#politics #nondelegation #usa #scotus

Court grants challenge to FCC subsidies over nondelegation doctrine - SCOTUSblog The justices on Friday created the prospect of another major ruling on the role of administrative agencies and Congress’s ability to delegate power to those agencies. At the Biden administration’s req...

#adminlaw people, what are your thoughts on the possibility that the Court will affirm the 5th Circuit and breathe life into the #nondelegation doctrine? I am writing that section of my course materials right now and I wish I were more of an expert! www.scotusblog.com/2024/11/cour...