Prof. Michael McConnell at the Stanford Law School, a leading constitutional law scholar (and former Tenth Circuit judge), passed this along, and I'm delighted to be able to post it:
Two courts now have ruled that President Trump did not have authority to impose new tariffs on foreign imports under the International Economic Emergency Powers Act of 1977 (IEEPA). The government has already announced an appeal. The Federal Circuit granted an administrative stay and ordered briefing by June 9. The tariff litigation is shaping up as the biggest separation of powers controversy since Steel Seizure.
A few comments (with the caveat that I was co-author and signatory on an amicus brief in support of the challengers):
[1.] The two courts both concluded that the President has no power under IEEPA to impose tariffs in response to balance of trade problems, and one court ruled, additionally, that President Trump lacked power to imposed tariffs in response to fentanyl trafficking. (For the remainder of this post I will discuss only the former holding.) It is important to stress that the decisions were not based on any criticism of the President's reasons for imposing the tariffs, but went to the existence of a power to do so.
The Court of International Trade (CIT) emphasized the relation between IEEPA and the Trade Act of 1974, holding that the specific procedures and substantive limitations contained in the latter supersede any more general emergency authority under the former. The District Court for the District of Columbia (Judge Contreras) emphasized that IEEPA's delegation of power to "regulate" imports does not include a power to tax imports. The two lines of argument are entirely compatible, but not identical.
The courts differed as to which court has jurisdiction. Both arguments are reasonable, though both cannot be correct. This does not matter for resolution of this controversy, however, because the two courts came to the same conclusion on the merits. Both cases are headed for the Supreme Court. Regardless of which trial court had jurisdiction, the Supreme Court will make the final decision.
[2.] Based on the arguments as they now stand, there is a high probability the decisions will be affirmed, in my opinion. There are no jurisdictional or procedural obstacles to a decision on the merits, as have plagued some of the Trump executive order cases. In its application to the Federal Circuit for a stay, Justice Department lawyers claimed that the CIT decision is "rife with legal errors," but has not said what they are. Perhaps the government will come up with persuasive arguments in its briefs in the Federal Circuit on June 9. As of now, however, the essential points in the courts' analysis are largely unrefuted. IEEPA grants various emergency economic powers, but makes no mention of tariffs, and has never before been used to impose tariffs. Interpreting it as a broad power to impose tariffs whenever the President declares an "emergency" would implicitly repeal the several statutes in which Congress did grant tariff authority, subject to procedural, substantive, and temporal limits not satisfied here.
