Today, twelve blue and purple states, led by the state of Oregon, filed a lawsuit in the US Court of International Trade challenging Donald Trump’s massive IEEPA tariffs. Their complaint is available here. The arguments advanced by the multistate plaintiffs are similar to those presented in the lawsuit the Liberty Justice Center and I presented in a similar lawsuit filed on behalf of five US businesses severely harmed by the tariffs (also filed in the CIT). They also resembled those made by the state of California in a case filed in federal district court.
Like California and us, the twelve states argue that the International Emergency Economic Powers Act of 1977 (IEEPA) doesn’t authorize tariffs at all, and that Trump administration’s position runs afoul of constitutional nondelegation rules (though they shy away from the term “nondelegation.” I think it might help if they were more explicit in indicating the tariffs also go against the”major questions” doctrine, and that the trade deficits that supposedly justify the “Liberation Day” tariffs are not an “unusual and extraordinary threat” (which IEEPA says must be present to allow use of the law). But perhaps they may go into these issues more fully as the case progresses.
I cover these and other reasons why the Trump IEEPA tariffs are illegal in more detail in my recent Lawfare article, “The Constitutional Case Against Trump’s Trade War.”
While our lawsuit is limited to the massive “Liberation Day” tariffs, the multistate plaintiffs – like California – also challenge earlier IEEPA tariffs imposed on Canada, Mexico, and China, supposedly justified by the threat of fentanyl smuggling. I argued that these tariffs are also illegal in a February post where I first outlined the idea of challenging IEEPA tariffs under the nondelegation and major questions doctrines.
There are also two narrower lawsuits challenging the Trump IEEPA tariffs: one brought by the New Civil Liberties Alliance (challenging tariffs against China on behalf of an importer), and one brought by members of the Blackfeet Nation Native American tribe (challenging tariffs against Canada). I expect there will be more lawsuits filed by other groups.
We welcome the twelve states to this fight!
It’s impressive this issue has united such a diverse array of people and institutions, including the conservatives at the NCLA, libertarians like myself and many of the LJC lawyers I am working with, blue and purple state governments, Native Americans, and a bipartisan group of prominent legal scholars and former government officials.
Trump’s tariff power grab has brought us all together. Perhaps he alone could do it!
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