Lawyers Split on Future of IEEPA Tariff Suit
A law professor from Georgetown University and a former Biden administration official have differing outlooks on the future of the lawsuits on tariffs imposed under the International Emergency Economic Powers Act filed in courts. Professor Marty Lederman said he would be "very surprised" if the Federal Circuit or Supreme Court ruled against the government on non-delegation or major questions doctrine grounds. Lawyer and former federal official Peter Harrell, however, said that the courts may welcome an opportunity to curb executive power.
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Plaintiffs in the case before the U.S. Court of Appeals for the Federal Circuit have argued that the Supreme Court's major questions doctrine, which says the executive can only regulate on issues of major economic or political significance upon explicit delegation from Congress, requires a finding that the IEEPA doesn't confer sweeping tariff authority (see 2507310058).
Lederman, speaking Aug. 22 at an event hosted by the Washington International Trade Association, said that he would be "very, very surprised" if the argument that IEEPA categorically doesn't provide tariff authority prevails in either the Federal Circuit or the Supreme Court. He said that the judges and justices will be "reluctant to issue such a broad, categorical ruling" that the president can never use IEEPA to impose tariffs. He also expressed doubt that the courts would look favorably on the plaintiffs' arguments either on "non-delegation or major question grounds."
Harrell, a co-author of an amicus brief contesting the tariffs, said that the courts may well be wary of granting the president unlimited tariff power, when "the president is very likely to find pretextual reasons" to use it. He cited President Donald Trump's use of the IEEPA to impose tariffs for a wide spectrum of foreign policy issues that he claims are emergencies, such as "on Brazil because of Brazil's prosecution" of a former president. To prevent the future widespread use of the IEEPA, he said, the "cleanest and most straightforward way" is to agree with the plaintiffs and "simply find, consistent with the statutes, text and history, that there is no authority to impose tariffs within the power to regulate importation."
Lederman agreed that the president was declaring emergencies pretextually, but said that the Supreme Court "will be very reluctant ... to say 'I'm sorry, Donald Trump, we just don't believe you.'" Despite "deep, deep skepticism" among judges that Trump's declared emergencies are extraordinary and unusual, he said that the judiciary "is going to be very anxious about saying 'bullshit.'" The case will be resolved "one way or the other" in favor of the government on the matter of non-delegation or major questions doctrine, he said.
Where the plaintiffs may find success, however, is limiting the Trump administration to "work within the terms of the 1974 Trade Act," Lederman said. If the president is concerned about balances of payment, he said, Congress has "already specified what the metes and bounds of those tariffs could be" in that act. That is a "very possible outcome" for the reciprocal tariffs, he said, but not the "fentanyl based tariffs," which have "a greater chance of prevailing and succeeding with this court."
The government is relying on precedent from Yoshida International v. U.S., a case from the Federal Circuit's predecessor upholding President Richard Nixon's 10% duty surcharge under identical language present in the Trading With the Enemy Act, to argue that the IEEPA grants tariff power, but Lederman said that line of defense may be a double-edged sword. He said that there are judges on the Federal Circuit who hold that the Yoshida decision also limits the tariff power to the 1974 Trade Act, so "if you want to rest all of your case on this Yoshida ratification by Congress, you have to take the bitter with the sweet." He said the "most likely outcome" will be that the courts follow this line of reasoning.
Harrell agreed with Lederman's assessment of Yoshida, but said that if the courts accept it, they may also "get into non-delegation doctrine issues" because the Yoshida court was analyzing relatively modest tariff increases by President Nixon, and "Trump's tariffs are just vastly broader than the Nixon tariffs." He said that if the courts "buy Yoshida in full," it will force them to consider whether Congress can "actually fully delegate its tariff power" to the president.
On the jurisdictional question of the case before the U.S. District Court for the District of Columbia, Lederman said that "the government is likely, but not certain, to win on that ground," depending on the panel of judges. He said it is "not inconceivable" that the federal D.C. court will reach the merits of the case, but that he "will be surprised." As for injunctions, he said that he does not "have a good sense" of what the courts will allow.
Harrell agreed that it is "a little hard to know where the courts will come down on that," but that he would hope if the Federal Circuit rules against the tariffs "that the Supreme Court lets the injunction come" into force.