We will classify Eric Boehm's headline as "better than none": Federal Appeals Court Says Trump's Tariffs Are Unlawful, Allows Them To Remain in Place.
President Donald Trump overstepped the limits of executive authority when he used emergency powers to levy tariffs, a federal appeals court ruled on Friday.
That decision, from the U.S. Court of Appeals for the Federal Circuit, is the latest in a string of legal losses for Trump's tariffs, which were previously ruled unlawful by the Court of International Trade (CIT) and a federal district court. In the 7-4 ruling handed down Friday, the majority upheld the CIT's decision that the International Emergency Economic Powers Act (IEEPA) did not authorize a president to impose tariffs.
"We agree that IEEPA's grant of presidential authority to 'regulate' imports does not authorize the tariffs imposed by the Executive Orders," wrote court ruled. The majority opinion says that Trump's tariffs would "assert an expansive authority" that is "beyond the authority delegated to the President by IEEPA."
Friday's ruling will almost certainly be appealed to the Supreme Court.
At the Volokh Conspiracy one of the winning litigants, Ilya Somin, writes about the legalisms: Federal Circuit Rules Against Trump's Massive IEEPA Tariffs in Our Case Challenging Them. The majority opinion is extensively quoted, and this is also interesting:
The concurring opinion, written by Judge Cunningham, on behalf of four judges goes further than the majority. It concludes that IEEPA does not authorize any tariffs at all. It also indicates that the sort of sweeping delegation of tariff authority claimed by the president here is precluded by the nondelegation doctrine, which limits the extent to which Congress can delegate legislative power to the president, relying in part on the Supreme Court's recent ruling in FCC v. Consumers' Research (which was helpful to our case in a number of ways):
[I]n each statute delegating tariff power to the President, Congress has provided specific substantive limitations and procedural guidelines to be followed in imposing any such tariffs. It seems unlikely that Congress intended, in enacting IEEPA, to depart from its past practice and grant the President unlimited authority to impose tariffs. The statute neither mentions tariffs (or any of its synonyms) nor has procedural safeguards that contain clear limits on the President's power to impose tariffs….
[W]henever Congress intends to delegate to the President the authority to impose tariffs, it does so explicitly, either by using unequivocal terms like tariff and duty, or via an overall structure which makes clear that Congress is referring to tariffs. This is no surprise, as the core Congressional power to impose taxes such as tariffs is vested exclusively in the legislative branch by the Constitution; when Congress delegates this power in the first instance, it does so clearly and unambiguously…
Contrary to the Government's assertion, the mere authorization to "regulate" does not in and of itself imply the authority to impose tariffs. The power to "regulate" has long been understood to be distinct from the power to "tax." In fact, the Constitution vests these authorities in Congress separately. U.S. Const. art. I, § 8 cl. 1, 3; see also Gibbons v. Ogden, 22 U.S. 1, 201 (1824) ("It is, that all duties, imposts, and excises, shall be uniform. In a separate clause of the enumeration, the power to regulate commerce is
given, as being entirely distinct from the right to levy taxes and imposts, and as being a new power, not before conferred. The constitution, then, considers these powers as
substantive, and distinct from each other."); Nat'l Fed'n. of Indep. Bus. v. Sebelius, 567 U.S. 519, 552, 567 (2012) (holding that the individual mandate provision of the Patient
Protection and Affordable Care Act was a permissible exercise of Congress's taxing power but exceeded Congress's power to regulate commerce). While Congress may use its taxing power in a manner that has a regulatory effect,… the power to tax is not always incident to the power to regulate…Upon declaring an emergency under IEEPA, a President may, in relevant part, "investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit" the "importation or exportation of . . . any property in which any foreign country or a national thereof has any interest." 50 U.S.C. § 1702(a)(1)(B). "Regulate" must be read in the context of these other verbs, none of which involve monetary actions or suggest the power to tax or impose tariffs…
The Government's interpretation of IEEPA would be a functionally limitless delegation of Congressional taxation authority.
So, I am not a lawyer, but I will summarize anyway: (1) IEEPA's text does not authorize the President to impose tariffs; (2) there's no evidence that Congress even intended to do that; and (3) even if they intended to do that, it would be an unconstitutional delegation of legislative power to the executive.
Does Trump think that he could (for example) decree different income tax rates?
Also of note:
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Nothing new to say about this. But John R. Lott Jr. and Thomas Massie say something anyway: the Minneapolis atrocity was Another Mass Shooting in a ‘Gun-Free Zone’. (WSJ gifted link)
Another mass shooter has struck and the media is again refusing to say why he chose his target. Like other killers, he openly admitted that he sought out “gun-free zones.” Yet mainstream outlets refuse to acknowledge it—and thereby ignore a policy solution that could save children’s lives.
That would interfere with their virtue-signalling narrative.
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Big, if true. Neal B. Freeman asserts Social Security Is No Longer the Third Rail of American Politics.
We need a new metaphor. We have moved beyond “the third rail.” Given the history of democratic governance, we can predict with confidence that we will not soon see a deliberative process in which the facts are assembled carefully and then assessed soberly by men and women of sagacity and goodwill, after which we will unite behind a disciplined and durable solution to the nation’s retirement crisis. It seems much more likely that a raucous and tendentious scramble will now ensue, producing a last-minute, jerry-built compromise between two of the most powerful of America’s many warring tribes — the political tribe and the financial tribe. It seems more likely, that is to say, that our societal elders will stage a shotgun wedding, hustling an annoyed and anxious bride into holy matrimony (!) with a deeply disappointed bridegroom.
It would have been a long and expensive transition to personal accounts even back in 1996. Today, it will be hellaciously expensive. But it will not be impossible of achievement if we can get ourselves to the right side of those “glacial forces” of demography.
I like the "shotgun wedding" metaphor, although I'd guess they'd have to abide by those worse-than-worthless "gun-free zone" laws that Lott and Massie mention.
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Everyone she knew, running scared. Megan McArdle holds two thoughts in her mind: Some mortgage fraud is inevitable. But Lisa Cook needs to come clean. She is a fan of Fed "independence", and worries that the case will erode that.
But now that [Federal Housing Finance Agency director Bill Pulte has decided to pursue this], can we afford to say, “Well, occupancy fraud is really not a big deal, it happens all the time, and, realistically, almost no one is ever punished”? Because that’s a good way to ensure that occupancy fraud really does happen all the time, or at least more of the time, forcing banks to do whatever the banking equivalent is of putting the Target deodorant aisle on lockdown. And I don’t love that solution, either.
So unless Cook explains why this really wasn’t occupancy fraud, we’re left with two unpalatable choices: letting a public official get away with something the system can’t afford to publicly condone, or letting Trump get away with something that no one can afford to publicly condone.
The only way out of that conundrum is for Cook to tell us why what looks like occupancy fraud was actually no such thing. So I sure hope she does, and soon.
Cool. Not that it matters, but I also kind of hope this issue knocks Ken Paxton out of public life.
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