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Tag: Nondelegation

  • The Alien Enemies Act and the Major Questions Doctrine

    A prison guard transfers Alien Enemies Act deportees from the U.S., alleged to be Venezuelan gang members, to the Terrorism Confinement Center in Tecoluca, El Salvador. Mar. 16, 2025 (El Salvador Presidential Press Office)

     

    Since Donald Trump invoked the Alien Enemies Act of 1798 (AEA) as a tool for peacetime detention and deportation in March of this year, there has been extensive litigation over the legality of that action. The AEA allows detention and deportation of non-citizens from relevant countries (including legal immigrants) “[w]henever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government.” Trump has tried to use the AEA to deport Venezuelans the administration claims are members of the Tren de Aragua (TdA) drug gang.

    Multiple federal district courts and the US Court of Appeals for the Fifth Circuit, have ruled that Trump’s actions are illegal because illegal migration and drug smuggling of the kind TdA engages in do not qualify as a war, invasion, or predatory incursion. I think overwhelming evidence supports these conclusions, evidence I document in detail in my new article “Immigration is Not Invasion.” But litigation continues. The Fifth Circuit is going to rehear its decision en banc (before all 17 active judges of that court), and one district court has (incorrectly) ruled that TdA’s actions qualify as a “predatory incursion.”

    In all the litigation and commentary on this issue up to now, one important issue seems to have been overlooked (including by me!): whether Trump’s interpretation of the AEA is barred by the “major questions doctrine” (MQD). I only became aware of it when one of my fall semester Constitutional Law I students – David Koster – raised the possibility. What follows is my own take on the issue, and is solely my responsibility. But David deserves  the credit for coming up with the idea in the first place.

    The major questions doctrine requires Congress to “speak clearly” when authorizing the executive to make “decisions of vast economic and political significance.” If the statute isn’t clear, courts must reject the executive’s assertion of power.

    The sweeping authority Trump claims under the AEA seems major enough to qualify as a matter of “vast economic and political significance.” If the AEA can be used to deport migrants from any country that is a source of illegal migrants or cross-border drug smuggling, many millions of immigrants (including many legal ones) could potentially be subject to detention and deportation at any time the executive chooses. For example, the single largest immigrant population in the US is that from Mexico, a total of about 11.4 million people. Mexico is obviously a source of both drug smuggling and illegal migrants. The same is true of most other countries with large immigrant populations in the US, such as Cuba and the nations of Central America. If illegal migration and drug smuggling qualify as “invasions” or “predatory incursions,” we are under constant invasion (or predatory incursion) from dozens of countries around the world!

    To be sure, the AEA also requires that the invasion or predatory incursion be perpetrated by a “foreign nation or government.” But if the tenuous ties (assessed as very weak by the Trump Administration’s own intelligence agencies) between the Venezuelan government and TdA are enough to qualify, similar claims can be made about the government of virtually any other nation with a large immigrant population in this country. Mexican officials, for example, likely have at least some ties to drug smugglers. The same is likely true of government officials in various Central American nations, and elsewhere.

    The power to detain and deport millions of migrants (including legal ones) at any time, and with little due process is one with obviously vast economic and political effects. Not just on migrants themselves, but on American citizens who have family, business, and other connections with these immigrants. If the authority is used on any significant scale, it would also seriously damage the US economy.

    A key factor the Supreme Court uses in assessing major questions cases is whether the executive’s claim to authority under the relevant statute is “unprecedented.” Here, it very obviously is. The AEA has been around for 227 years. And in all that time, it has previously invoked on only three occasions: the War of 1812, World War I, and World War II – all major wars against foreign governments. There is zero precedent for its use to counter anything like illegal migration or drug smuggling. As discussed more fully in my article, there is also no evidence that the framers of the law ever contemplated its use for such purposes.

    If MQD does apply here, it provides a strong additional justification for rejecting the administration’s position. As explained in detail in my article, and the Fifth Circuit amicus brief I coauthored on behalf of the Brennan Center, the Cato Institute, and others, textual and historical evidence overwhelmingly demonstrates that “invasion” and “predatory incursion” refer to military attacks. At the very least, it is far from clear that they encompass illegal migration or drug smuggling. And if things are unclear, MQD requires courts to rule against the executive’s assertion that it has been delegated a vast power.

    The Trump Administration could argue that the major questions doctrine doesn’t apply to delegations of power to the president, as opposed to delegations to agencies. But that’s an extremely weak argument that has been rejected by multiple courts of appeals.

    The Administration could also argue that major questions doctrine doesn’t apply to “foreign affairs” delegations. The Supreme Court has never adopted any such exception. And several previous uses of the major questions doctrine have applied to policies with significant foreign policy effects. For example, in West Virginia v. EPA, the Court used major questions doctrine to strike down a Biden policy addressing climate change; climate change is obviously an issue with vast foreign policy significance. In Biden v. Nebraska, the student loan case, the Court applied the doctrine to strike down Biden’s massive student loan forgiveness program. They did so despite the fact that  Biden claimed the authority in question comes from the HEROES Act, legislation whose original purpose was in large part to provide loan forgiveness to members of the military serving abroad during wars and other conflicts (they are the “heroes” from whom the act gets its name).

    Moreover, mass detention and deportation of migrants is far from a pure foreign affairs issue. Its most immediate effect is on migrants living in the United States, many of whom have been here for years and are integrated into our economy or society. It also has vast effects on American citizens. Invocations of the AEA obviously do have some impact on foreign affairs. But the same is true of many, perhaps most, major domestic policies. That doesn’t mean such policies are exempt from MQD scrutiny.

    Another issue that might arise here is the claim that the AEA is not a true delegation because the president has inherent authority over immigration. The Constitution doesn’t specify which branch of government has the power to restrict migration (probably because the federal government was not originally understood to have that power at all). But the Supreme Court has repeatedly held that this power is a legislative authority, going all the way back to the Chinese Exclusion Case of 1889, the first decision holding that the federal government has a general power to restrict migration, and in the process also ruled that the authority belongs to “the legislative department.” Holding that the president has his own authority to restrict migration would also upend the extensive system of immigration laws enacted by Congress over the last century and more, potentially empowering the president to just sweep it aside, at will.

    In sum, the major questions doctrine clearly applies to the Trump Administration’s assertion of power under the Alien Enemies Act. And if there is any ambiguity about whether the AEA gives the executive the sweeping power it claims, MQD requires a ruling against the government.

    As noted above, I think courts can and should rule against the administration based on the text and history of the law alone, and several already have. But if judges conclude the AEA is unclear, the major questions doctrine requires resolving that ambiguity against the administration.

    For those keeping score, I said much the same thing about the use of the MQD in various Biden-era cases, including loan forgiveness, the eviction moratorium case, and the vaccine mandate case. I have argued that MQD is an important tool for curbing excessive claims of executive power under both Democratic and Republican administrations. If necessary, it should be used here, too.

    Ilya Somin

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  • Lawsuit Challenges Trump’s $100,000 H-1B Visa Fee

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    Yesterday, a broad coalition of groups filed the first lawsuit challenging President Trump’s imposition of a $100,000 fee on applications for H-1B visas, which are used by tech firms, research institutions, and other organizations to hire immigrant workers and researchers with various specialized skills. If allowed to stand, the fee would effectively end most H-1B visas, by making them prohibitively expensive, thereby inflicting serious harm on the US economy.

    The case is called Global Nurse Force v. Trump. The plaintiffs are a broad coalition including the Global Nurse Force (which supplies nurses to health care providers), education groups (e.g. – the American Association of University Professors), religious organizations, and labor unions. I am a little surprised that multiple labor unions joined this lawsuit, as one might think they would want to keep out potential competitors to their members. However, I would guess they have H-1B visa holders among those members. In addition, studies show that H-1B workers actually increase wages for many US-citizen workers by increasing productivity and innovation.

    The complaint argues the H-1B visa is illegal for a number of different reasons. Here’s a brief excerpt that summarizes some of them:

    Defendants’ abrupt imposition of the $100,000 Requirement is unlawful. The
    President has no authority to unilaterally alter the comprehensive statutory scheme created by Congress. Most fundamentally, the President has no authority to unilaterally impose fees, taxes or other mechanisms to generate revenue for the United States, nor to dictate how those funds are spent. The Constitution assigns the “power of the purse” to Congress, as one of its most fundamental premises. Here, the President disregarded those limitations, asserted power he does not have, and displaced a complex, Congressionally specified system for evaluating petitions and granting H-1B visas. The Proclamation transforms the H-1B program into one where employers must either “pay to play” or seek a “national interest” exemption, which will be doled out at the discretion of the Secretary of Homeland Security, a system that opens the door to selective enforcement and corruption.

    The plaintiffs also argue that the government’s assertion of virtually unlimited power to impose visa fees goes against the major questions doctrine (which requires Congress to speak clearly when it delegates broad powers to the executive over issues of vast economic and political significance), and the constitutional nondelegation doctrine, which limits delegation of legislative power to the executive branch.

    I made similar points in an earlier post about the H-1B visa fee policy, where I explained why it goes against the statutory scheme enacted by Congress, and why it would violate the nondelegation doctrine if Congress had delegated this power.

    As the Global Nurse Force complaint notes, enforcing nondelegation is particularly crucial when it comes to the power to raise revenue, which is a specifically enumerated congressional power. The $100,000 fee goes far beyond anything that could plausibly be described as defraying administrative expenses, and is essentially a form of taxation.  The Framers of the Constitution were careful to ensure that only the legislative branch could impose taxes, in order to avoid the abusive executive taxation pursued by 17th century British monarchs. This is one of several areas where Trump is attempting to usurp this legislative power. Others include his unilateral imposition of massive tariffs, and his unconstitutional export taxes (which even Congress lacks the power to impose under the Constitution).

    I hope the plaintiffs prevail here. I expect there may also be other lawsuits challenging the H-1B fee.

    Ilya Somin

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  • Trump’s Harmful and Illegal Plan to Gut H-1B Visas by Imposing $100,000 Fees

    The president recently issued an executive “proclamation” imposing a $100,000 fee on applications for H-1B visas. This would effectively end most such visas, which are used by tech firms and research institutions to hire immigrant workers and researchers with a variety of specialized skills. My Cato Institute colleague David Bier, a leading immigration policy expert, has a helpful summary of the policy and the harm it is likely to cause, if not struck down by courts:

    President Trump is imposing a $100,000 fee to obtain an H-1B visa—the primary visa for skilled foreign workers. To be clear, this $100,000 fee is in addition to the salary, lawyer fees, and other costs of hiring an H-1B worker. This fee would effectively end the H-1B visa category by making it prohibitive for most businesses to hire H-1B workers. This would force leading technology companies out of the United States, reduce demand for US workers, reduce innovation, have severe second-order economic effects, and lower the supply of goods and services in everything from IT and education to manufacturing and medicine.

    H-1B visa holders are extremely valuable contributors to research and innovation, and some have gone on to be world-leading scientists and industry leaders, making truly massive advances.

    Defenders of the visa fee argue that, if these workers are so great, then it will be worth it for employers to pay the $100,000 price to get them. But a fee that high likely exceeds the average expected profit from one worker during the time he or she is going to work for the sponsoring employer.  There are individuals who produce much more than that, but such extraordinary success is hard to predict in advance. As I have argued previously, this is one of many reasons to avoid immigration restrictions and other government restrictions on labor mobility. In any large group of new workers, there are likely to be a few extraordinary innovators and entrepreneurs, but government planners cannot identify them in advance, and should not try. “Ordinary” workers are still useful, and the extraordinary minority who go far beyond the ordinary will become evident once given a chance. Keeping them out harms migrants and natives, alike, depriving both groups of the benefits of  scientific and entrepreneurial breakthroughs.

    H-1B workers, it is argued, drive down wages for natives who compete with them. But, by that reasoning, any new entrants into the work force are bad for existing workers. The truth is that benefits to the overall economy and society far outweigh any detriment to direct competitors. We readily see this when it comes to new native workers entering the work force, and the same logic applies here. We should reject the zero-sum game “lump of labor” fallacy that assumes there is a fixed pot of labor opportunities. A dynamic economy helps new and old workers prosper together, bolstered by growth and innovation.  This is why deportations destroy more jobs for US citizens than they create, and the same is likely to be true for keeping out H-1B visa holders.

    As David Bier notes, the new $100,000 fee is likely illegal, because the statutes authorizing H-1B fees only allow for fees to recoup administrative costs and some other types expenses. They certainly don’t authorize anything remotely resembling a $100,000 fee.

    Trump is trying to get around these constraints by relying on  8 U.S.C. Section 1182(f), gives the president the authority to “bar the entry of any aliens or of any class of aliens into the United States” whose admission he finds “would be detrimental to the interests of the United States.” This is the same provision used to impose the anti-Muslim “travel ban” upheld by the Supreme Court in its badly flawed ruling in Trump v. Hawaii (2018).

    But it is far from clear that Section 1182(f) and Trump v. Hawaii give the president a blank check to exclude any potential immigrants for any reasons he wants, or to impose any fees he wants. In 2020, as David Bier also notes, Trump tried to impose a similar ban on new H-1B visas, but a federal district court ruled against the ban. As the court pointed out, ” there must be some measure of constraint on Presidential authority in the domestic
    sphere in order not to render the executive an entirely monarchical power in the immigration context, an area within clear legislative prerogative.”

    The Supreme Court has repeatedly indicated that immigration is an area of legislative power. If so, there must be at least some constraint on how far it can be delegated to the executive.

    In an article published in June, I advocated a nondelegation challenge to Trump’s sweeping new travel ban barring all or most immigration from numerous nations. If Section 1182(f) really does give the president unlimited authority to impose massive fees on visa applications, overriding all other statutes, the same reasoning applies here.

    in the same article, I also responded to arguments that the executive branch has inherent authority to impose immigration restrictions:

    Prominent Founding Fathers such as James Madison and Thomas Jefferson rejected the notion that the federal government possessed any general power to restrict immigration. The Supreme Court only held otherwise in the Chinese Exclusion Case in 1889…. But if this governmental power does indeed exist – as longstanding Supreme Court precedent holds – the most plausible place for it is Congress. In the 1889Chinese Exclusion Case – that upheld the deeply racist Chinese Exclusion Act of 1882 – the Supreme Court stated that the authority belongs to “the legislative department…”

    [A] few academics have argued that immigration power is actually an inherent executive power. Supreme Court Justice Clarence Thomas has suggested the same in a solo opinion joined by any other justice…. But this executive power theory makes little sense. If the president possesses inherent, virtually unlimited power to exclude non-citizens, there would be no need for the many congressional statutes that grant him some degree of authority to do so, going all the way back to the Alien Enemies Act of 1798, a wartime authority that Trump has been (illegally) trying to use to facilitate peacetime deportations without due process.

    Under the inherent executive power theory, all such laws would become superfluous. The president could just exclude any immigrants he wants without any need for legislative authority. Indeed, there would be no need for Section 1182(f), either….

    Since 1889, the Supreme Court has indicated that immigration restriction is a legislative power on several other occasions. For example, in Fiallo v. Bell (1977), the Court noted it “has repeatedly emphasized that over no conceivable subject is the legislative power of Congress more complete than it is over the admission of aliens.”  Such “complete” legislative power is incompatible with giving the executive a blank check to impose fees and restrictions.

    I don’t claim the current H-1B system is ideal. But improving it would make the visas easier to get and more flexible (e.g. – by making it easier for visa holders to switch employers). Trump’s new policy would effectively gut them entirely.

    Ilya Somin

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  • House Republicans just voted to give even more tariff power away to Trump

    Since President Donald Trump took office, Congress has abdicated its constitutional authority—and responsibility—to “lay and collect Taxes, Duties, Imposts and Excises” to the executive branch. On Tuesday, the House of Representatives voted yet again to prevent itself from reclaiming these powers from the president.

    The vote was on a procedural measure that passed out of the Rules Committee on Monday, which included a provision to “extend until March 31 a block on efforts…to end the national emergencies underlying Trump’s sweeping tariffs,” reports Politico. The measure passed in a partisan 213–211 vote, with only Reps. Thomas Massie (R–Ky.), Kevin Kiley (R–Calif.), and Victoria Spartz (R–Ind.) breaking party ranks.

    The measure mirrors House Resolution 211, which cleared the House in March and “blocked the most direct pathway for lawmakers to revoke the emergency executive powers” Trump used to levy tariffs “on goods from Canada, Mexico, and China,” Reason‘s Eric Boehm wrote at the time. The March resolution deemed each remaining day of the first session of the 119th Congress as not a day “for purposes of section 202 of the National Emergencies Act [NEA] with respect to a joint resolution terminating a national emergency declared by the President on February 1.”

    The NEA grants Congress the authority to cancel all national emergencies declared by the president through a law or joint resolution. This includes emergencies invoked by the International Emergency Economic Powers Act (IEEPA)—the law that Trump has used to levy tariffs on many of America’s trade partners—which authorizes the president to impose asset freezes, trade embargoes, and sanctions, but not tariffs. By refusing to recognize days during which Section 202 of the NEA is considered, Congress ceded its ability to nullify Trump’s February IEEPA tariffs until January 3, 2026.

    Tuesday’s resolution follows the same logic. House Resolution 707 nullified the provisions of “section 202 of the National Emergencies Act…from September 16, 2025, through March 31, 2026 [with respect to] a joint resolution terminating the national emergency declared by the President on July 30.” That national emergency was declared the day before Trump’s July 31 executive order further modifying the reciprocal tariff rates, which were first imposed on “Liberation Day” in April. This order not only levied across-the-board duties on Mexico, Canada, and China, as Trump did in February, but imposed not-so-reciprocal tariffs on every country with which the U.S. has normal trade relations. By passing this resolution, the only way Congress can interfere with Trump’s reciprocal tariffs would be to pass a law amending the IEEPA statute itself, which almost certainly will not happen.

    Rep. Suzan DelBene (D–Wash.), who voted against the resolution, tells Reason that “House Republicans have yet again abdicated their constitutional role over trade policy to President Trump, effectively capitulating to the largest tax increase on Americans in history.”

    As Congress has sat idly by, courts have been deliberating the constitutionality of Trump using IEEPA to set tariffs.

    In May, the Court of International Trade (CIT) unanimously ruled that Trump’s IEEPA tariffs were “beyond the scope of executive power, and…blocked [them] by a permanent injunction,” Ilya Somin, one of the plaintiffs’ attorneys, explained at the time. The U.S. Court of Appeals for the Federal Circuit upheld the CIT’s ruling on August 29, but vacated the lower court’s universal injunction. Pending an oral argument before the Supreme Court in the first week of its November session, Trump’s tariffs remain in effect.

    The Supreme Court wouldn’t be involved if Congress hadn’t delegated its tariff power to the president through laws like the Trade Expansion Act of 1962 (responsible for Section 232 tariffs) and the Trade Act of 1974. Unfortunately, Congress has long been eager to offload its constitutional duties to the executive branch. Tuesday’s resolution is merely a continuation of this trend.

    Jack Nicastro

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  • Supreme Court Will Hear Our Case Challenging Trump’s Tariffs – and Two Other Related Cases

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    Today, the Supreme Court decided to review V.O.S. Selections, Inc. v. Trump, our case challenging President Trump’s “Liberation Day” tariffs. The case was filed by the Liberty Justice Center and myself on behalf of five small businesses harmed by the tariffs. It is consolidated with a similar suit filed by twelve state governments, led by the state of Oregon. Both challenge massive tariffs Trump has imposed using his supposed authority under the International Emergency Economic Powers Act of 1977 (IEEPA), and both will now be heard on the same accelerated schedule. The Supreme Court also decided to hear Learning Resources v. Trump, a case challenging many of the same tariffs, filed by two importers in a different federal court.

    We, the twelve states, and the Learning Resources plaintiffs all prevailed in the lower courts, and I hope the Supreme Court will also recognize the IEEPA tariffs are illegal for a variety of reasons. Fundamentally, these cases come down to whether the president has virtually unlimited power to impose taxes in the form of tariffs on the American people, much like an absolute monarch. The Framers of the Constitution deliberately denied the executive the kind of unbridled tax authority claimed by power-grabbing English kings, like Charles I.

    The Court’s order is short. For convenience, I reprint it here in full:

    LEARNING RESOURCES, INC., ET AL. V. TRUMP, PRESIDENT OF U.S., ET AL. [24-1287]
    TRUMP, PRESIDENT OF U.S., ET AL. V. V.O.S. SELECTIONS, INC., ET AL. [25-250]

    The petition for a writ of certiorari before judgment in No. 24-1287 is granted. The motion to expedite and the petition for a writ of certiorari in No. 25-250 are granted. The cases are consolidated, and a total of one hour is allotted for oral argument. Respondents in No. 24-1287 and petitioners in No. 25-250 shall file an opening brief on the merits on or before Friday, September 19, 2025. Any amicus curiae briefs in support or in support of neither party shall be filed on or before Tuesday, September 23, 2025. Petitioners in No. 24-1287 and respondents in No. 25-250 shall file response briefs on the merits on or before Monday, October 20, 2025. Any amicus curiae briefs in support shall be filed on or before Friday, October 24, 2025. A reply brief shall be filed by Thursday, October 30, 2025. The cases will be set for argument in the first week of the November 2025 argument session.

    The Liberty Justice Center has issued a statement about the order, which I reprint below. No one will be surprised that I agree with it! Here it is:

    Today, the Supreme Court granted the government’s expedited request for Supreme Court review (writ of certiorari) in V.O.S. Selections, Inc. v. Trump, agreeing to review whether the Trump Administration’s “Liberation Day” tariffs exceed the President’s legal and constitutional authority. Given the importance of the issues and the need for a prompt resolution, the Liberty Justice Center agreed to the government’s request.

    The Liberty Justice Center, along with legal scholar Ilya Somin, filed this case on April 14 in the U.S. Court of International Trade (CIT) on behalf of five American small businesses harmed by the tariffs. The CIT held that the International Emergency Economic Powers Act, or IEEPA, does not give the President unlimited unilateral authority to impose tariffs on the American people whenever he wants, at whatever level he wants, for whatever countries and products he wants, and for as long as he wants.

    The government appealed to the U.S. Court of Appeals for the Federal Circuit, where the Liberty Justice Center was joined by leading appellate lawyers and constitutional scholars, Judge Michael W. McConnell and Neal Katyal. And on August 29, in a 7–4 decision, the Federal Circuit affirmed the CIT’s decision, holding that IEEPA does not authorize the President’s so-called “Liberation Day” tariffs. The Supreme Court will now decide whether to affirm those rulings.

    Recognizing the urgency of the matter, the Supreme Court has now set this case on an expedited schedule, with oral argument to take place the first week of November.

    “We are confident that the Supreme Court, like the CIT and the Federal Circuit, will recognize that the President does not have unilateral tariff power under IEEPA,” said Jeffrey Schwab, Senior Counsel and Director of Litigation at the Liberty Justice Center. “Congress, not the President alone, has the constitutional power to impose tariffs.”

    The issues in the case are covered in much greater detail in our various legal filings (see the Liberty Justice Center site for a compilation), and in my earlier writings about this litigation.

    Ilya Somin

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  • Federal Circuit Rules Against Trump’s Massive IEEPA Tariffs in Our Case Challenging Them

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    Today the US Court of Appeals for the Federal Circuit ruled against President Trump’s massive “Liberation Day” tariffs in VOS Selections v. Trump, a case filed by Liberty Justice Center and myself on behalf of five small US businesses (we have since been joined by prominent Supreme Court litigators Michael McConnell and Neal Katyal; Neal skillfully conducted the oral argument before the Federal Circuit). The ruling also covers the case filed by twelve states led by Oregon; they prevailed, as well. On these points, a 7-4 majority of the en banc Federal Circuit affirmed the earlier trial court decision issued by the Court of International Trade. The court also remanded the issue of how broad the injunction against the tariffs should be to the Court of International Trade. That litigation is, however, postponed until October 14, to give the government a chance to ask the Supreme Court to review the case.

    The majority concluded that the tariffs in question are not authorized by the International Emergency Economic Powers Act of 1977  (IEEPA), and that the major questions doctrine precludes interpreting IEEPA to give the president the virtually unlimited tariff authority he claims.

    The majority, concurring and dissenting opinions, are 127 pages long, and I will not attempt to cover everything in them here. I will merely highlight some key points.

    Here is an excerpt from the per curiam majority decision (issued in the name of all seven majority judges), explaining why IEEPA doesn’t authorize the tariffs imposed by the president:

    [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 majority also emphasized that the government’s claim to unlimited tariff authority goes against the major questions doctrine:

    The Government’s interpretation of IEEPA as providing the President power to impose unlimited tariffs also runs afoul of the major questions doctrine. See, e.g., Oral Arg.16at 19:28–19:39 (the Government stating “there is no limit on the cap of the tariff in IEEPA itself”). The Supreme Court has explained that the doctrine applies in “cases in
    which the ‘history and the breadth of the authority . . . asserted’” by the Government entails vast “economic and political significance.”West Virginia v. EPA, 597 U.S. 697,
    721 (2022)…. In such cases, there may be a “‘reason to hesitate before concluding that Congress’ meant to confer such authority.” Id…. When the major questions doctrine is
    implicated, the Government must point to “clear congressional authorization” for that asserted power. Id. at 732….

    The tariffs at issue in this case implicate the concerns animating the major questions doctrine as they are both “unheralded” and “transformative.” Id. at 722, 724; see also
    id. at 725 (“[J]ust as established practice may shed light on the extent of power conveyed by general statutory language, so the want of assertion of power by those who presumably would be alert to exercise it, is equally significant in determining whether such power was actually conferred.)” ….

    Since IEEPA was promulgated almost fifty years ago, past presidents have invoked IEEPA frequently. But not once before has a President asserted his authority under IEEPA to impose tariffs on imports or adjust the rates thereof. Rather, presidents have typically invoked IEEPA to restrict financial transactions with specific countries or entities that the President has determined pose an acute threat to the country’s interests….

    Additionally,…  tariffs are a core Congressional power. The “basic and consequential
    tradeoffs” that are inherent in the President’s decision to mpose the Trafficking and Reciprocal Tariffs “are ones that Congress would likely have intended for itself.” Ne-
    braska, 600 U.S. at 506 (quoting West Virginia, 597 U.S. at 730). Moreover, the United States imports more than $4 trillion of goods annually; these imports account for
    14 percent of the nation’s economy. J.A. 215. The Government itself has claimed that the Reciprocal Tariffs will “generate between $2.3 trillion and $3.3 trillion over the
    budget window….” The Executive’s use of tariffs qualifies as a decision of vast economic and political significance, so the Government must “point to clear
    congressional authorization” for its interpretation of IEEPA. West Virginia, 597 U.S. at 723…

    For the reasons discussed above, we discern no clear congressional authorization by IEEPA for tariffs of the magnitude of the Reciprocal Tariffs and Trafficking Tariffs.
    Reading the phrase “regulate . . . importation” to include imposing these tariffs is “a wafer-thin reed on which to rest such sweeping power.” Ala. Ass’n of Realtors v. Dep’t of Health & Hum. Servs., 594 U.S. 758, 765 (2021)

    The majority goes on to reject claims that the major questions doctrine does not apply to delegations to the president (their reasoning is similar to that which I outlined here). It also rejects the argument that the doctrine does not apply because tariffs are a “foreign affairs” power.

    The majority did not address whether the government’s claim of unlimited tariff authority would also run afoul of the nondelegation doctrine, which limits the extent to which Congress can delegate legislative authority to the executive. But it does note the significance of the fact that tariffs are a “core congressional power.”

    The majority explicitly chose not resolve the issue of whether IEEPA can be used to impose any tariffs at all. But their reasoning suggests either that such imposition is indeed categorically barred, or that any tariff authority that exists under IEEPA is strictly limited.

    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 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):

    The Government’s interpretation of IEEPA would render it an unconstitutional delegation. Because taxation authority constitutionally rests with Congress, any delegation of that authority to the President must at least set out an intelligible principle that includes “both ‘the general policy’” that the President “must pursue and ‘the boundaries of [its] delegated authority.’” FCC v. Consumers’ Rsch., 145 S. Ct. 2482, 2497 (2025)… Similarly, Congress must “provide[ ] sufficient standards to enable both ‘the courts and the public [to] ascertain’” whether the President “has followed the law.” Id…. Because this is undoubtedly a case that “affect[s] the entire national economy,” the “‘guidance’ needed is greater . . . than when [Congress] addresses a narrow, technical issue.” Id…. For taxes, both “quantitative” and “qualitative limits on how much money” the President can raise are permissible, but it would “pose a constitutional problem” if the “statute gives the [executive branch] power, all on its own, to raise [a] hypothetical $5 trillion” with no “ceiling.” Id. at 2501–02.

    The Government’s interpretation of IEEPA would be a functionally limitless delegation of Congressional taxation authority.

    The majority did however vacate the trial court’s universal injunction against the tariffs, and remand the issue of the scope of the injunction to the trial court to determine how broad it should be, in light of the Supreme Court’s recent ruling restricting universal injunctions, in Trump v. CASA. We have a variety of arguments as to why a broad injunction is appropriate in this case, even after CASA (see relevant section of our brief).

    The dissent by Judge Taranto, on behalf of himself and three other judges, largely accepts many of the government’s arguments. I won’t go over them in detail here, as this post is already too long. Obviously, I have responded to these arguments in some detail in previous writings, and our legal team also did so in our briefs.

    The court has, for the moment, stayed its ruling until October 14, to give the government a chance to ask the Supreme Court to review the decision. We shall see what the justices choose to do.

    Ilya Somin

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