A very interesting article by my Hoover Institution colleague Philip Zelikow, who is an emeritus history professor (mostly specializing in the history of American foreign affairs) at the University of Virginia, but also a lawyer; here are the introductory paragraphs:
On February 20, the Supreme Court ruled that President Trump's tariffs imposed under an emergency powers law were unlawful. After raging at the court, the president imposed a new set of global tariffs using a different statutory authority. I participated in the tariff litigation from the start and argued, both to the court and in this Substack, that those tariffs were unlawful.
The new 10 or 15 percent global tariffs, claiming authority from a 1974 law, are also unlawful. When courts look into this, I think they will find that this is not a close case.
In 1976, two years after that law was passed, the US government formally decided that the relevant statutory term, "balance of payments," had become obsolete after the end of fixed exchange rates and the demise of the Bretton Woods system. The US government would therefore no longer report a "balance of payments" in its statistics. That may be one reason why the old 1974 authorities had never been used. There are better laws available to achieve more sustainable results.
Even though the 1974 law allows the tariffs to be imposed only temporarily, for a maximum of 150 days, the matter may be worth litigating for two reasons. First, the costs, almost all paid by Americans, would run at least into tens of billions of dollars. Second, a number of lawyers fear that the White House may attempt to "rinse and repeat" the temporary tariffs again and again. Sadly, given presidential behavior in some other settings, including the appointment of interim US attorneys, these are not idle fears.
Why the 1974 authorities (section 122) are obsolete
