WITH AMERICA still reeling from the tariffs imposed by Donald Trump on around 180 countries, a conservative organisation has filed a lawsuit challenging an initial round of tariffs the president announced in February—and doubled in March—on Chinese imports. The New Civil Liberties Alliance (NCLA), which counts Charles Koch, a right-wing billionaire, among its supporters, argues that Mr Trump lacked the authority to impose these levies. Similar lawsuits against the broader tariff blitz of April 2nd could yet scuttle the boldest—and most destructive—move of Mr Trump’s second term.
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The power “to lay and collect taxes, duties, imposts and excises”, per Article 1, section 8 of the constitution, lies with Congress. The constitution assigns no direct role to presidents in this domain. In 1977, however, Congress passed the International Emergency Economic Powers Act (IEEPA) in an attempt to curb powers granted to the president during the first world war. This law empowered presidents to restrict imports, freeze assets and impose sanctions in the event of an “unusual and extraordinary threat” to the “national security, foreign policy or economy of the United States”. Mr Trump invoked the IEEPA in February, pointing to the influx of fentanyl, to justify tariff hikes on Canada, Mexico and China. He did so again on April 2nd to support his radical tariff overhaul, declaring that America’s “large and persistent” trade deficits threaten the nation’s security and economic stability.
The NCLA’s lawsuit, filed in Florida on April 3rd, does not quarrel with Mr Trump’s declaration of a national emergency concerning fentanyl. But it argues that the IEEPA “does not even mention tariffs” and notes that “no previous president” has turned to the statute to introduce tariffs in its nearly five-decade history. Even if tariffs were authorised, the law requires measures to be “necessary” to resolve the emergency, yet there is “no connection between the opioid problem and the tariff he ordered”. The lawsuit also claims that “Congress passed the IEEPA to counter external emergencies, not to grant presidents a blank cheque to write domestic economic policy”.
In 2023 the Supreme Court baulked when Joe Biden stretched statutory language to relieve $430bn in student loans. The loan forgiveness triggered the “major questions doctrine”—the idea that when an executive action involves a question of vast “economic and political significance”, it requires clear and specific authorisation from Congress. The NCLA draws on the same doctrine to condemn Mr Trump’s first round of tariffs, calling them “the largest tax increase in a generation”. It also notes that the Supreme Court’s decision last June in Loper Bright—the ruling that ended so-called Chevron deference—means that the courts’ interpretation of the IEEPA now trumps Mr Trump’s.
If the fentanyl tariffs on China raised a major question, reckons Alan Morrison, a law professor at George Washington University, the implications of “Liberation Day” pose a “cataclysmic” one. Unilaterally upending the global trading system, he argues, “blows the sky off the statute”. And the haphazard details—seemingly picking numbers out of a hat, penalising an island inhabited only by penguins, exempting Russia—suggest the tariffs “could hardly be more of an ‘I can do what I want to do’”.
Mr Morrison highlights yet another conservative legal tool that could be turned against Mr Trump: the “non-delegation doctrine”, which holds that Congress cannot constitutionally hand over its legislative powers by granting excessive authority to the executive. If the Supreme Court were to accept Mr Trump’s expansive reading of the IEEPA, it might be forced to strike down the statute as an unconstitutional delegation of Congress’s power over tariffs. “If this does not violate the non-delegation doctrine”, Mr Morrison says, “it’s hard to imagine anything that does.”
If that argument were to prevail, then Mr Trump’s executive order lays out something of a plan B. In addition to the IEEPA, it briefly cites three laws as alternative sources of tariff authority. The National Emergency Act allows presidents to activate emergency powers embedded in other laws. Section 604 of the Trade Act of 1974 permits them to adjust tariff schedules within limits set by Congress. And section 301 of Title 3 of the US Code allows presidents to delegate powers to cabinet members. Yet none of these appears to grant the sweeping tariff powers Mr Trump asserts.
The pool of potential plaintiffs to take this fight to the courts is vast. Nearly all companies in America stand to suffer from the tariffs. But Nicholas Bagley, a law professor at the University of Michigan, wonders if giant corporations like Walmart and Nike will “pick a high-profile fight with the president on one of his signature policy objectives”. Trade associations like the American Petroleum Institute or pharmaceutical groups, he reckons, may be more willing to stick their necks out, as may “scrappy, right-wing property-rights-oriented NGOs”.
What happens when this fight reaches the Supreme Court, as experts expect it will within weeks? That, says Mr Bagley, is tricky to predict. On one hand, the justices tend to defer to presidents on policies “with a foreign affairs connection”. On the other, the Roberts court tends to be pro-business and has “commitments beyond partisan loyalty”. The conservative majority favours a “limited, constrained administrative state that will clash with Mr Trump’s muscular use” of the law to advance his priorities, Mr Bagley notes.
But there are other wrinkles. Tariffs “blinking off and on” as cases wend through the courts, Mr Bagley says, could temporarily exacerbate the uncertainty already plaguing markets. And progress may be partial: if a banana importer successfully challenges a tariff on bananas from Costa Rica, courts will not issue a blanket order cancelling Mr Trump’s entire tariff regime. Ordinarily, the government would withdraw tariff hikes across the board if the Supreme Court rules that it lacks the authority to undertake them. But inter-branch comity might be scarce at the moment. “That voluntary respect” for the rule of law, Mr Bagley says, “seems very much open to question.”
