Challenge Trump’s Tariffs Under the Nondelegation and Major Questions Doctrines
Yesterday, Donald Trump imposed 25% tariffs on Canadian and Mexican imports, and 10% on those from China. These actions will inflict immense costs on the US economy, raise prices for many goods, and poison relations with two of our closest allies and trading partners, thereby weakening the US and strengthening our enemies. They are also unlikely to do much to stem the flow of fentanyl across US borders or address illegal migration – the ostensible excuses for these actions. Fortunately, there may be a way to successfully challenge these immensely harmful actions in court. Plaintiffs should file cases based on the nondelegation and major questions doctrines. The latter, especially, has been bolstered by recent Supreme Court decisions.
The Constitution gives Congress, not the executive, the power to regulate “commerce” with foreign nations. Trump claims the authority to impose these massive tariffs under the International Emergency Economic Powers Act of 1977 (IEEPA), a vague statute that gives the president the power to set trade restrictions in situations where 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.”
Trump has indeed declared a national emergency at the border. But there is nothing “extraordinary” or “unusual” about either illegal migration or cross-border fentanyl smuggling. To the contrary, these phenomena are natural and longstanding consequences of severe immigration restrictions and the War on Drugs, which predictably create large black markets, and have done so for decades. Most fentanyl smuggling is actually done by US citizens crossing through legal ports of entry, which Canada and Mexico can’t do much about. Moreover, illegal border crossings were actually at a low level when Trump came into office.
The unbounded nature of the administ
Article from Reason.com
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