Rights Over Rules

AS we all know, this year, Pres. Trump issued a series of executive orders that impose a variety of punitive tariffs on imports from dozens of countries around the world. He has raised tariffs, lowered them again, set activation dates, changed those dates. At various times he

President cites IEEPA and other ‘emergency power’ statutes

The President’s legal justification for these orders comes from a group of “emergency powers” laws, primarily one called the IEEPA. These laws say that if the President declares a foreign policy emergency, he can wield additional powers to meet them, including regulating trade.

Numerous lawsuits ask the same question, use the same basic arguments

Numerous groups have filed lawsuits protesting the tariffs, and they all appear to ask the same question and use the same essential arguments.

The question in each lawsuit is, does the IEEPA (emergency powers act) authorize the President to impose tariffs?

Attorney for one case, McConnell, has summarized the arguments here (link),
the 20 States case, adn the California lawsuit, use similar arguments, which in brief, are:

• the President has overstepped the authority given by the IEEPA (or other emergency act), in that the act doesn’t specifically mention tariffs.
• tariffs are a tax, and the Constitution gives the power to tax to Congress, not to the President.

Court decisions so far have been mixed, trending towards unconstitutionality

These are decent arguments, and we hope the Appeals Court rules against the tariffs, and that the Supreme Court also does, when the case inevitably gets to them, sometime in the coming year.
But at least one court ruled to allow tariffs to continue in the meantime, as they currently do.

A body of case law on congressional delegation of powers hinges on Congress’ intent

And we have a body of case law that allows Congress to delegate activities to the Executive branch; these are generally governed by concepts and doctrines such as “intelligible principle” and “major questions doctrine”. These doctrines, created by the Courts, can and sometimes are overturned by the Courts, and the current Supreme Court’s conservative majority has a track record of overturning precedent;

So who knows whether these arguments will be enough to win.