Three lawsuits have been filed against President Trump’s recent tariffs, which were imposed on almost all of the countries of the world, under a statute that doesn’t even mention tariffs, and historically wasn’t used to impose tariffs. So courts could potentially find that Trump’s “Liberation Day” tariffs were illegal.
Below, Professor Ilya Somin describes the lawsuit he and the Liberty Justice Center just filed on behalf of several small businesses harmed by the tariffs. Somin is a law professor who teaches constitutional law; the Liberty Justice Center consists of conservative and libertarian lawyers. Two other lawsuits were filed earlier against Trump’s recent tariffs, one by progressive lawyers in Montana on behalf of members of the Blackfeet Tribe, and the other by conservative lawyers in a Florida court, on behalf of a small business in Pensacola. (There are other statutes that the president could probably have used to increase tariffs on many countries, but those statutes take months to use, because they require the Trump administration to go through various procedures first, and make specified findings.).
Professor Somin explained yesterday that
The Liberty Justice Center and I filed a lawsuit in the US Court of International Trade challenging the legality of Donald Trump’s gargantuan “Liberation Day” tariffs, on behalf of five US businesses that import goods from many of the countries targeted by the tariffs. The case is entitled VOS Selections, Inc. v. Trump.
In previous posts, I previewed our key arguments and explained why Trump’s partial pause of the tariffs does not end the madness or obviate the need to challenge this usurpation of legislative power in court.
To briefly summarize, we argue that the International Emergency Economic Powers Act of 1977 (IEEPA) doesn’t authorize tariffs at all, that even if it does the bilateral trade deficits targeted by the “Liberation Day” tariffs do not qualify as an “emergency” or as an “unusual and extraordinary threat” (both prerequsites to invoking IEEPA), that Trump’s use of IEEPA for this purpose runs afoul of the “major questions” doctrine, and that – if these actions are authorized by IEEPA – it would violate constitutional limits on delegation of legislative power to the executive. If we prevail on any one of these points, we win the case.
The complaint is available here.
Here is an excerpt from the Liberty Justice Center press release announcing the case:
On April 14, the Liberty Justice Center filed a lawsuit challenging the Trump Administration’s authority to unilaterally issue the “Liberation Day” tariffs, which are devastating small businesses across the country. The lawsuit argues that the Administration has no authority to issue across-the-board worldwide tariffs without congressional approval.
The lawsuit, filed in the U.S. Court of International Trade, highlights the unprecedented nature of the tariffs, including a global 10% tariff on nearly all imports, with additional higher tariffs targeting dozens of countries based on dubious calculations of foreign trade barriers.
The President invoked the International Emergency Economic Powers Act (IEEPA) to justify the “Liberation Day” tariffs, as well as the tariffs on Mexico, Canada, and China. But under that law, the President may invoke emergency economic powers only after declaring a national emergency in response to an “unusual and extraordinary threat” to national security, foreign policy, or the U.S. economy originating outside of the United States. The lawsuit argues that the Administration’s justification— a trade deficit in goods—is neither an emergency nor an unusual or extraordinary threat. Trade deficits have existed for decades, and do not constitute a national emergency or threat to security. Moreover, the Administration imposed tariffs even on countries with which the U.S. does not have a trade deficit, further undermining the administration’s justification.
And as the Complaint explains, IEEPA does not authorize the President to impose across-the-board tariffs—it does not even authorize tariffs at all; and even if the IEEPA did extend such power to the President, that would be an unconstitutional delegation of Congress’s power to impose tariffs.
“No one person should have the power to impose taxes that have such vast global economic consequences,” said Jeffrey Schwab, Senior Counsel at the Liberty Justice Center. “The Constitution gives the power to set tax rates—including tariffs—to Congress, not the President.”
“If starting the biggest trade war since the Great Depression based on a law that doesn’t even mention tariffs is not an unconstitutional usurpation of legislative power, I don’t know what is,” said Ilya Somin, co-counsel, law professor, Scalia Law School, George Mason University.
The case is filed on behalf of five owner-operated businesses who have been severely harmed by the tariffs and highlights the human and economic toll of unchecked executive power….
Another lawsuit was filed against the tariffs on April 4 by members of Montana’s Blackfeet tribe, represented by progressive lawyers. The Montana Free Press explains:
When a wheel broke on Jonathan St. Goddard’s tractor in late March, the nearest replacement he could find was in Saskatchewan for $1,253. When he brought back it back to Montana, he was slapped with a $308 tariff for the equipment, part of an expansive array of tariffs ordered by the Trump administration.
On Friday in federal court, St. Goddard, along with state Sen. Susan Webber, D-Browning, filed a lawsuit in federal court asking a judge for an injunction against Trump’s tariffs on Canada, arguing that it violates the treaty rights of Indigenous people across the nation…The lawsuit centers on the Jay Treaty signed in 1794, ratified by Congress and signed into law by then-President George Washington, which exempted tribes along the United States-Canadian border from being taxed or levied on goods between the nations….the 49th parallel, the longest continuous running border in the world between two nations, bisects more than 30 tribes whose ancestral lands span both countries. In addition to the Blackfeet tribe, other tribes split by the border include the Lakota, Salish, and Iroquois….The lawsuit asks the court to halt the tariffs that affect Canada, or if not, declare that the emergency orders that implemented the tariffs be declared void for tribal members because they violate the 1794 treaty rights….But the lawsuit doesn’t just focus on the treaty rights, it also challenges the Trump administration’s ability to use emergency powers to impose tariffs….“The plain language of the (International Emergency Economic Powers Act of 1977) does not include the power to ‘tariff’ or to ‘tax.’ The powers enumerated in the statute are extensive and specific. Omission of tariffs is significant given how clearly Congress referenced tariff authorities in other trade statutes. The IEEPA has been the basis for over 60 executive orders. It has never been used to impose tariffs,” the court filing said….
The tariffs are also causing economic harm in American towns like Bellingham that are near the border. Canadian tourist visits to the U.S. are down massively due to anger over the tariffs imposed on Canada, and President Trump’s talk of Canada becoming the “51st state.”
When President Trump imposed his Liberation Day tariffs, the stock market fell by more than 12%. When he suspended part of that tariff increase for 90 days, the stock market jumped by several percent.
President Trump called his tariffs “reciprocal,” but those tariffs were not actually “reciprocal,” notes CNBC, because the tariffs Trump imposed on foreign countries were much bigger than the tariffs they impose on us. For example, Trump imposed a 90% tariff on Vietnam, which had a 5.1% tariff on American products. And he imposed a 72% tariff on Thailand, which applied a 6.3% tariff to our products. On April 9, those tariffs imposed by Trump were temporarily reduced to 10% for 90 days.
Another lawsuit challenging President Trump’s ability to impose these tariffs has been filed by a conservative nonprofit law firm that brought many successful lawsuits against the Biden administration.
