At Volokh Conspiracy, Ilya Somin: Challenge Trump's Tariffs Under the Nondelegation and Major Questions Doctrines. From the introduction:
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."
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Under Trump's logic, "extraordinary" or "unusual" circumstances justifying starting a massive trade war can be declared to exist at virtually any time. This interpretation of the IEEPA runs roughshod over constitutional limitations on delegation of legislative power to the executive. For decades, to be sure, the Supreme Court has taken a very permissive approach to nondelegation, upholding broad delegations so long as they are based on an "intelligible principle." But, in recent years, beginning with the 2019 Gundy case, several conservative Supreme Court justices have expressed interest in tightening up nondelegation. The administration's claim to virtually limitless executive discretion to impose tariffs might be a good opportunity to do just that. Such flagrant abuse by a right-wing president might even lead one or more liberal justices to loosen their traditional skepticism of nondelegation doctrine, and be willing to give it some teeth.
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More promising than the nondelegation argument is the possibility of attacking Trump's tariffs under the "major questions" doctrine, which requires Congress to "speak clearly" when authorizing the executive to make "decisions of vast 'economic and political significance.'" If the statute is ambiguous, courts must presume that Congress didn't give the agency the power the executive claims. In recent years, the Supreme Court has relied on MQD to strike down a number of sweeping assertions of authority by the Biden administration, such as its attempt to forgive over $400 billion in student loans, and the establishment of a nationwide eviction moratorium (first begun under Trump). The imposition of massive tariffs on our two largest trading partners is pretty obviously a decision with "vast economic and political significance," one likely to cost the public even more than Biden's loan forgiveness plan would have. And, as in the student loan and eviction moratorium cases, the statutes under which the administration claims authority are far from clear in indicating it has such sweeping power. Furthermore, some of the conservative justices might welcome an opportunity to show that MQD isn't just a tool for the political right.
A key issue here is whether the nondelegation doctrine and the major questions doctrine apply to foreign affairs-related matters. As indicated in this article on delegating war powers, my view is that under the Constitution's original meaning delegations that involve matters over which the President also has substantial independent power (common in foreign affairs), a delegation is much less constitutionally problematic. But as Professor Somin says, tariffs and trade regulation are not in that category — they are unambiguously included in Congress' legislative powers in Article I. So it would seem that the same delegation standard should apply to them as applies to delegations of ordinary Article I domestic legislative power.
Unfortunately the Supreme Court in the Curtiss-Wright case held that foreign affairs delegations do categorically receive less constitutional scrutiny, and even more unfortunately, it held that in the specific context of trade regulation. I've argued at length that Curtiss-Wright was wrong as a matter of the original meaning, but the case — although de-emphasized in more recent Court decisions — has never been overruled.
So I further agree with Professor Somin that the major questions doctrine (MQD) is probably a better line of attack on the tariffs. As he says, the IEEPA — the statute under which the President claims authority — is broad and vague. It's vague both as to when it can be invoked (in an emergency, which can be declared largely in the President's discretion) and as to what it allows the President to do. And the principal justification for the MQD — that it's needed to prevent the executive branch from aggressively overreading statutes to claim lawmaking authority Congress never intended to convey — applies equally to foreign affairs matters as it does in domestic matters. And finally, in my view anyway, the MQD is within the Court's constitutional power to underenforce statutes as part of the Court's judicial power. Of course, the MQD hasn't yet been applied to foreign affairs (or to delegations directly to the President), so this would be a considerable extension. But I don't see an originalism-based reason not to make that extension (if one agrees that the MQD is consistent with originalism).
Posted at 6:20 AM