Bonus 187: Previewing the Tariffs Cases

The Solicitor General's substantive defenses of President Trump's tariffs are remarkably weak, but there's still a reason why *these* were the first merits cases he wanted the Supreme Court to decide.

Welcome back to the weekly bonus content for “One First.” Although Monday’s regular newsletter will remain free for as long as I’m able to do this, I put much of the weekly bonus issue behind a paywall as an added incentive for those who are willing and able to support the work that goes into putting this newsletter together every week. I’m grateful to those of you who are already paid subscribers, and I hope that those of you who aren’t will consider a paid subscription if and when your circumstances permit:

I thought I’d use this week’s bonus issue for something of a bifurcated preview of tomorrow’s oral argument in the tariffs cases—the first challenges to the policies of the second Trump administration that have reached the Supreme Court on plenary review (as opposed to via an emergency application). The cases are not only a major test of the President’s statutory authority (or lack thereof) under the International Emergency Economic Powers Act of 1977 (IEEPA); they are also a referendum on the Court—including its relationship to the Trump administration and its consistency (or lack thereof) when it comes to skepticism of the executive branch’s power to undertake major economic policies without express statutory authorization under what has become known as the “major questions doctrine.”

Indeed, for as straightforward as the substantive arguments against the tariffs may appear to be, there’s a reason why the Solicitor General rushed to ensure that these cases were the Court’s first merits cases of the second Trump administration—and that reason is almost certainly reflected in Justice Kavanaugh’s oft-stated (if deeply debatable) view that the Court’s skepticism of those kinds of executive branch policies shouldn’t apply in “national security or foreign policy contexts.” Whether that’s enough to distinguish these cases from, e.g., the 2023 ruling in the Biden student loan debt forgiveness case will be one of the most important themes to look for tomorrow—and has a lot to do with why so many of the predictions for how the Court is likely to rule have been so equivocal. Mine is too; these cases ought to be easy ones. But the same could’ve been said about many of the Trump administration’s emergency applications over the past 9.5 months, and yet here we are.

In front of the paywall, I thus attempt to briefly outline what these cases are about, summarize how they got here, and flag the (sorry) major questions the justices will be answering tomorrow. Behind the paywall, I then highlight three things that I, specifically, will be listening for during tomorrow’s argument—each of which may have a lot to say about how these cases come out.

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I. How We Got Here

Earlier this year, the President declared a series of national emergencies as a basis for imposing “reciprocal” tariffs on every country in the world (and some penguins), which were justified as a response to the claimed national emergency caused by persistent trade deficits. He also imposed a series of other (“trafficking”) tariffs on Canada, China, and Mexico, ostensibly directed toward ameliorating the “emergency” caused by the flow of fentanyl into the United States. (The majority opinion in the en banc Federal Circuit decision provides a thorough and useful summary of the five executive orders specifically at issue.)

As I noted in early April, “During the first Trump administration, the President relied upon section 232 of the Trade Expansion Act of 1962 to impose steel tariffs against Canada. But these new tariffs, according to the White House, are predicated on IEEPA, enacted in 1977—not the TEA.” And one thing on which everyone agrees is that, in its 48-year history, IEEPA has never been used as a basis for any tariffs.

Its text is, to be fair, somewhat capacious. As relevant here, it provides that:

Any authority granted to the President by section 1702 of this title may be exercised to deal with 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.

And one of the authorities provided “by section 1702” is to:

investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest by any person, or with respect to any property, subject to the jurisdiction of the United States;

In other words, IEEPA doesn’t specifically mention tariffs, but you could at least construct an argument that tariffs could be shoehorned into the text of section 1702. As my friend and Cornell law professor Michael Dorf chops up the statute, you could take this latter provision and derive the following sentence: the president “may . . . regulate . . . importation . . . [of] any property in which any foreign country or a national thereof has any interest.” (There are also at least some examples of presidents using IEEPA’s precursor, the Trading With the Enemy Act of 1917, to level tariffs—although there is significant debate over both the scope of that authority and how well, or not, it translated into IEEPA.)

Of course, there are two problems with this reading. The first is the threshold question of whether the “national emergencies” President Trump declared are valid ones—i.e., whether the conditions justifying them posed “unusual and extraordinary threats” to the United States. And the second is whether, even if they are, IEEPA can be sliced and diced to provide authority it’s never previously been used for. For a host of reasons, that first issue has largely not been a focus of the litigation to date and is unlikely to figure prominently in tomorrow’s argument (more on this below the fold); instead, most of the debate has been on the second.

The cases consolidated in tomorrow’s argument took slightly different paths to the Supreme Court. Perhaps the more well-known case is actually a pair of cases that were consolidated in the Court of International Trade under the caption V.O.S. Selections, Inc. v. Trump. Those cases involve challenges by a group of small businesses to the reciprocal tariffs; and by a series of states (led by Oregon) to the trafficking tariffs—arguing that the executive orders by President Trump imposing those tariffs were invalid insofar as they were not authorized by IEEPA.

Back in May, the Court of International Trade (which sits in three-judge panels) sided with the plaintiffs on both challenges—holding that the tariffs weren’t authorized by IEEPA; and permanently enjoining them. The Federal Circuit issued a stay of that ruling pending the Trump administration’s appeal (a stay that remains in effect today, which is why the tariffs do, as well—and why this issue never came to the Supreme Court on an emergency application). But on August 29, the full Federal Circuit affirmed the CIT in a 7-4 ruling—agreeing that the tariffs were unlawful. The court also provided that its stay of the CIT’s injunction would remain in place indefinitely pending Supreme Court review—so long as the Trump administration petitioned for certiorari by October 14 (i.e., six weeks after its ruling; the usual deadline for certiorari is 90 days). Presumably, the goal of that order was to ensure that the Supreme Court would be able to review the tariffs during its current term. But the Solicitor General didn’t wait even close to that long; on September 3 (six days after the decision), the Trump administration filed for certiorari—and sought very expedited review on the merits, including a November argument. The plaintiffs acquiesced—which is why we can’t read much into the fact that the justices did, as well.

The other case before the Court tomorrow, Learning Resources, Inc. v. Trump, involves a narrower challenge to the reciprocal tariffs brought in the D.C. federal district court. Back in May, Judge Contreras also held that the reciprocal tariffs were not authorized by IEEPA, but blocked them only as applied to the two small businesses that had challenged them in that case. There, it was the plaintiffs (not the Trump administration) who sought certiorari “before judgment” (bypassing the D.C. Circuit). The justices initially rejected the plaintiffs’ request to expedite consideration of their petition. But when the Court granted certiorari in V.O.S. Selections, it also granted that petition and consolidated the cases—almost certainly because there is at least some dispute as to whether the Court of International Trade had jurisdiction over these cases in the first place; if it didn’t, the D.C. district court surely did (and, the way the relevant statutes work here, vice-versa—it’s either/or).¹ And for no reason other than because the Learning Resources petition was docketed first, it’s under that name that these cases are being argued.

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II. What the Court Will Decide

The questions formally presented in the two cert. petitions are simple enough. The Learning Solutions petition asks “Whether IEEPA authorizes the President to impose tariffs.” And the Justice Department’s petition in V.O.S. Selections asks that question and a second question about whether, if it does, it reflects an unconstitutional delegation of legislative authority to the President. In their merits briefs, the parties have also addressed the question about which lower court properly had subject-matter jurisdiction (since it can’t be both). Thus, there are either two or three questions specifically before the Supreme Court: the “which lower court had the power to block the tariffs” question; the “does IEEPA authorize the tariffs” question; and, if so, the “is IEEPA an unconstitutional delegation” question. (There’s also the possibility of splitting the difference between the reciprocal tariffs and the trafficking tariffs, but that doesn’t strike me as especially likely.)

I think it’s safe to say that the bulk of tomorrow’s argument will focus on the second question. The Court will have to decide the jurisdictional question, and it will have to reach the non-delegation question if it holds that IEEPA authorized the tariffs, but the IEEPA question really strikes me as the ballgame; it’s hard to imagine five votes to hold that the statute both authorizes the tariffs and that it’s unconstitutional in doing so.

To that end, it’s worth re-upping what I wrote back in April:

Although the non-delegation doctrine is an argument that Congress can’t constitutionally delegate the power at issue to the President, the major questions doctrine is better understood as a principle of statutory interpretation—that, where the President is embarking upon new programs with “vast economic or political significance,” Congress must specifically authorize the program.

Even if a statute can plausibly be read to support the program—indeed, even if the better reading of the statute supports the program—that’s not enough. Absent clear statutory support, the program is unlawful. Of course, one big difference between the major questions doctrine and the non-delegation doctrine is that Congress can always respond to an MQD holding by providing the authority the courts held to be missing. But our political reality today is that Congress doesn’t do that—which ties the doctrines together much more closely, at least with respect to their practical effects (and perhaps creates an incentive for judges to rely upon the MQD instead of non-delegation, since they produce the same short-term result while preserving a future Congress’s power).

Like a lot of others, I’ve been pretty critical of the major questions doctrine—which seems especially difficult to justify as applied to statutes that were enacted by Congress before the Supreme Court articulated such an understanding. It also seems poorly designed for cases just like the tariff cases—in which Congress has, deliberately, delegated broad and open-ended authority to the President to deal with a national security emergency, and has left the details to be filled in by the President depending upon the specific context of the emergency. (After all, Congress can’t always predict in advance which specific powers will be needed during specific emergencies, and there are examples of statutory delegations for emergencies dating all the way back to 1792.)

But the Court has run roughshod over those criticisms—applying the major questions doctrine not just to “ordinary” statutes, but to ones specifically intended to delegate power to respond to emergencies, as well. Thus, in Biden v. Nebraska (the 2023 student loan case), the Court rejected the Biden administration’s argument that the student loan debt forgiveness program was authorized by the HEROES Act of 2003—a statute that authorized the Secretary of Education to “waive or modify any statutory or regulatory provision applicable to the student financial assistance programs under title IV of the Act as the Secretary deems necessary in connection with a war or other military operation or national emergency.” The fact that the Biden administration had pegged the student loan debt forgiveness program to the COVID national emergency was … insufficient, in the majority’s view.

One of the most common criticisms of the major questions doctrine has been its subjectivity. Whether a specific program involves a matter of “vast economic or political significance” will often be in the eye of the beholder. And even when it’s clear that it is, the threshold the doctrine requires for statutory clarity is, at best, a matter of debate. That said, if the broad but open-ended delegation of power in the HEROES Act was insufficient, it sure seems like IEEPA isn’t any clearer. And it also seems like President Trump’s tariffs ought to meet any judge’s test for a matter of “vast economic or political significance”; one need look no further than the stock markets for proof of that. Thus, if judges (and justices) are going to be consistent about the major questions doctrine, there seems to be plenty of support for the conclusion that IEEPA is insufficiently clear to support Trump’s tariffs.

That’s part of why I’ve never been especially sympathetic to the Kavanaugh view. As Kavanaugh put it in a concurrence earlier this year, “the usual understanding is that Congress intends to give the President substantial authority and flexibility to protect America and the American people—and that Congress specifies limits on the President when it wants to restrict Presidential power in those national security and foreign policy domains.”

But even if there was some reason to treat comparable delegations differently depending upon the broader field in which they were made (a debate that I think is an interesting one), the Court itself has already relied on the MQD to strike down a program that the President claimed was authorized by a statute that was predicated on his declaration of a “national emergency” (in that case, the one caused by the COVID pandemic). Is the Court really going to conclude that tariffs are “more” closely connected to national security than the response to an unprecedented global public health crisis?

And even if the answer to that question is “yes,” and so the Court ducks the major questions doctrine’s obvious cash-out here (i.e., no tariffs), there are still two problems with the statutory interpretation being pressed by the Trump administration: First, plenty of other statutes expressly provide the President with the power to impose tariffs. Major questions doctrine or not, it seems more than a little odd to conclude that Congress would ambiguously confer a deeply contested power in IEEPA that it had expressly conferred elsewhere. Second, and reinforcing that problem, the more explicit tariff statutes all include an array of substantive and procedural constraints (constraints that may well have pushed the Trump administration away from relying upon them here). It would be odder still to conclude that Congress gave the President substantively and procedurally un-bound power in IEEPA in ways that would render the constraints in those other statutes all-but irrelevant.

The Trump administration’s response is IEEPA is different because it has a trigger those other statutes don’t (the declaration of a national emergency). But given that the President’s declaration of a national emergency is effectively unreviewable by the courts, and can be overridden only by veto-proof supermajorities of both chambers of Congress), that seems like a remarkably weak distinction; as a practical matter, if the Trump administration is right about IEEPA here, then presidents could rely upon it as a basis for imposing tariffs almost whenever they want to. The upshot of all of this is that, major questions doctrine or not, the Court could easily rule against the Trump administration without resorting to that approach at all.

All of this may be way the Solicitor General has devoted so much of his briefing to policy arguments about the potentially dire economic consequences of striking down the tariffs. It seems to me that there are two reasons for this (unusual) rhetorical push, both of which help to explain why the federal government was in such a hurry to get these cases to the Supreme Court.

First, this certainly appears to be a case in which the President is especially invested—all the way down to the highly inappropriate “28(j) letter” that the Solicitor General filed in the Federal Circuit while that court was deliberating that reads more like a Truth Social post than a formal communication by the federal government’s official representative before the Supreme Court. Indeed, the White House has made a wide array of (to my mind, clumsy) efforts to suggest that an adverse ruling would produce dire consequences—arguments that one might’ve thought should have been directed at Congress, which could have provided, and could still provide, unambiguous statutory authorization for these very initiatives (assuming the House ever re-convenes).

Second, hard though it may be to believe, the other “merits” cases making their way to the Supreme Court challenging Trump administration policies, with the important but limited exception of the removal cases (i.e., about whether President Trump can fire without cause the heads of various multi-member executive branch agencies), are all even weaker for the federal government. It is almost certainly going to lose the birthright citizenship cases (which appear headed for a December grant of certiorari and a March or April argument). It is almost certainly going to lose the Alien Enemy Act cases (which the Justice Department has slowed down by successfully obtaining en banc review in the Fifth Circuit). And so it is entirely possible that cooler heads within the Office of the Solicitor General came to the conclusion that this was the best foot to put forward first—not because the arguments are inherently compelling, but because they’re sufficiently plausible to have generated meaningful disagreement in the Federal Circuit (where the four dissenters included two Democratic appointees). In other words, the rush to the Court wasn’t necessarily a sign of confidence in the abstract so much as it was a reflection of confidence relative to the federal government’s position in other (non-removal) cases.

Against this backdrop, there are three things, in particular, that I’ll be listening for in tomorrow’s argument. And for those who are interested, I unpack them below the fold.