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Tag: separation of powers

  • Trump administration asks the Supreme Court to allow it to fire head of US Copyright Office

    The Trump administration on Monday asked the Supreme Court to allow it to fire the director of the U.S. Copyright Office.The administration’s newest emergency appeal to the high court was filed a month and a half after a federal appeals court in Washington held that the official, Shira Perlmutter, could not be unilaterally fired.Nearly four weeks ago, the full U.S. Court of Appeals for the District of Columbia Circuit refused to reconsider that ruling.The case is the latest that relates to Trump’s authority to install his own people at the head of federal agencies. The Supreme Court has largely allowed Trump to fire officials, even as court challenges proceed.But this case concerns an office that is within the Library of Congress. Perlmutter is the register of copyrights and also advises Congress on copyright issues.Solicitor General D. John Sauer wrote in his filing Monday that despite the ties to Congress, the register “wields executive power” in regulating copyrights.Perlmutter claims Trump fired her in May because he disapproved of advice she gave to Congress in a report related to artificial intelligence. Perlmutter had received an email from the White House notifying her that “your position as the Register of Copyrights and Director at the U.S. Copyright Office is terminated effective immediately,” her office said.A divided appellate panel ruled that Perlmutter could keep her job while the case moves forward.”The Executive’s alleged blatant interference with the work of a Legislative Branch official, as she performs statutorily authorized duties to advise Congress, strikes us as a violation of the separation of powers that is significantly different in kind and in degree from the cases that have come before,” Judge Florence Pan wrote for the appeals court. Judge Michelle Childs joined the opinion. Democratic President Joe Biden appointed both judges to the appeals court.Judge Justin Walker, a Trump appointee, wrote in dissent that Perlmutter “exercises executive power in a host of ways.”Perlmutter’s attorneys have argued that she is a renowned copyright expert. She has served as register of copyrights since then-Librarian of Congress Carla Hayden appointed her to the job in October 2020.Trump appointed Deputy Attorney General Todd Blanche to replace Hayden at the Library of Congress. The White House fired Hayden amid criticism from conservatives that she was advancing a “woke” agenda.

    WASHINGTON —

    The Trump administration on Monday asked the Supreme Court to allow it to fire the director of the U.S. Copyright Office.

    The administration’s newest emergency appeal to the high court was filed a month and a half after a federal appeals court in Washington held that the official, Shira Perlmutter, could not be unilaterally fired.

    Nearly four weeks ago, the full U.S. Court of Appeals for the District of Columbia Circuit refused to reconsider that ruling.

    The case is the latest that relates to Trump’s authority to install his own people at the head of federal agencies. The Supreme Court has largely allowed Trump to fire officials, even as court challenges proceed.

    But this case concerns an office that is within the Library of Congress. Perlmutter is the register of copyrights and also advises Congress on copyright issues.

    Solicitor General D. John Sauer wrote in his filing Monday that despite the ties to Congress, the register “wields executive power” in regulating copyrights.

    Perlmutter claims Trump fired her in May because he disapproved of advice she gave to Congress in a report related to artificial intelligence. Perlmutter had received an email from the White House notifying her that “your position as the Register of Copyrights and Director at the U.S. Copyright Office is terminated effective immediately,” her office said.

    A divided appellate panel ruled that Perlmutter could keep her job while the case moves forward.

    “The Executive’s alleged blatant interference with the work of a Legislative Branch official, as she performs statutorily authorized duties to advise Congress, strikes us as a violation of the separation of powers that is significantly different in kind and in degree from the cases that have come before,” Judge Florence Pan wrote for the appeals court. Judge Michelle Childs joined the opinion. Democratic President Joe Biden appointed both judges to the appeals court.

    Judge Justin Walker, a Trump appointee, wrote in dissent that Perlmutter “exercises executive power in a host of ways.”

    Perlmutter’s attorneys have argued that she is a renowned copyright expert. She has served as register of copyrights since then-Librarian of Congress Carla Hayden appointed her to the job in October 2020.

    Trump appointed Deputy Attorney General Todd Blanche to replace Hayden at the Library of Congress. The White House fired Hayden amid criticism from conservatives that she was advancing a “woke” agenda.

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  • Trump’s planned farm bailout should require congressional approval

    By hiking tariffs on nearly all imports to the United States earlier this year, President Donald Trump effectively imposed one of the largest tax hikes in American history—and did so without congressional approval.

    Now, the Trump administration is reportedly preparing to spend some of the revenue from those tax increases—also without congressional approval.

    The White House is preparing a bailout for farmers harmed by the trade war. The exact contours of the package remain unclear for now, but Politico and The Wall Street Journal both report that the administration is eying at least $10 billion in aid. We’ll know more early next week, as Treasury Secretary Scott Bessent says an announcement of “substantial support” is expected on Tuesday.

    This much seems clear: tariffs paid by American importers will be used to fund some of the bailout.

    That’s likely to happen, in part, because the slush fund that Trump tapped to bail out farmers during his first term is running dry. That fund—the Commodity Credit Corporation, a New Deal-era program within the Department of Agriculture—has just $4 billion in it, according to Politico. Meanwhile, the government has collected about $150 billion in tariff revenue during the first eight months of the year.

    It also seems likely because that’s what Trump keeps saying he wants to do. “We’re going to take some of that tariff money that we made, we’re going to give it to our farmers,” he said last month.

    Regardless of how it is funded, a farm bailout would be a wasteful and counterproductive bit of policy—and one that could inspire other tariff-hurt industries to start looking for their own handouts. If the bailout is funded with the tariff revenue (without congressional approval), then it would also be another attack on the separation of powers that are fundamental to our constitutional system of government.

    It is Congress that has the sole authority to lay and collect taxes, per Article I of the Constitution. It is also Congress that has the sole authority to determine how tax dollars are spent. If the Trump administration wants to use some of that $150 billion to bail out farmers, it must ask Congress to approve that spending—ideally as part of a budget bill, but even a one-off emergency or supplemental bill would be better than having the executive branch make this decision on its own.

    There is one other complication that should stop the administration from unilaterally spending the tariff revenue, even if the White House decides to ignore the constitutional argument.

    If the Supreme Court rules that Trump’s tariffs are unlawful—as lower courts already have—then it is possible that the federal government would have to refund all that money to the people and businesses that paid the tariffs in the first place.

    If that money has been given away to farmers, then taxpayers will be on the hook to refund the tariff payments—the same American taxpayers who are already paying higher prices because of the tariffs. That’s literally adding insult to injury.

    There is, of course, an easy way out of this mess. If the Trump administration wants to spare farmers the consequences of the trade war, it doesn’t need a messy, possibly unconstitutional bailout. It just needs to end the tariffs.

    Eric Boehm

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  • Federal Court Rules Trump Can’t Deny Federal Disaster Relief Funds to Sanctuary States

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    Earlier today, in Illinois v. FEMA a federal district court ruled the Trump administration cannot deny federal disaster relief aid to “sanctuary” states that limit assistance to federal efforts to deport undocumented immigrants. The suit was brought by twenty state governments, led by the state of Illinois, and by the District of Columbia. This is the latest in a long line of decisions striking down Trump Administration efforts to impose immigration-related conditions on federal grants to state governments, even though those conditions were never authorized by Congress.

    Federal District Judge William E. Smith (a Republican George W. Bush appointee) ruled the Trump conditions violated the Spending Clause of the Constitution in three ways: the conditions are ambiguous, they aren’t related to the purposes of the grants in question, and they are onerous enough to be coercive:

    First, the Court finds that the contested conditions are not reasonably related to the purposes of the grants to which they attach. DHS justifies the conditions by pointing to its broad homeland security mission, but the grants at issue fund programs such as disaster relief, fire safety, dam safety, and emergency preparedness. Sweeping immigration-related conditions imposed on every DHS-administered grant, regardless of statutory purpose, lack the necessary tailoring. The Spending Clause requires that conditions be “reasonably calculated” to advance the purposes for which funds are expended, [South Dakota v.] Dole, 483 U.S. at 209, and DHS has failed to demonstrate any such connection outside of a few programs like Operation Stonegarden. The Court therefore concludes that the conditions are overbroad and unrelated to the underlying programs.

    Second, the Court finds that the conditions are coercive. The record shows that states rely on these grants for billions of dollars annually in disaster relief and public safety funds that cannot be replaced by state revenues. Denying such funding if states refuse to comply with vague immigration requirements leaves them with no meaningful choice, particularly where state budgets are already committed. The financial pressure here goes well beyond the “relatively mild encouragement” approved in  Dole, 483 U.S. at 211, and amounts instead to “economic dragooning” of the sort condemned in NFIB [v. Sebelius], 567 U.S. at 582. The coercion is even more pronounced because the threatened funds involve essential public safety responsibilities rather than optional or peripheral programs.

    Third, the Court holds that the conditions are unlawfully ambiguous. The Spending Clause requires clarity so that states may exercise their choice knowingly. Here, DHS required states to provide “cooperation” and participate in “joint operations” and
    “information sharing,” but without defining what compliance entails. Likewise, the prohibition on operating programs that “benefit illegal immigrants” or “incentivize illegal immigration” provides no meaningful standards and is hopelessly vague. States cannot predict how DHS will interpret these vague terms, yet they risk losing billions in federal funding for any perceived violation. Such ambiguity deprives the states of the ability to  make informed decisions, rendering the conditions constitutionally
    invalid.

    During Trump’s first term, his administration lost numerous lawsuits over issues like this one. Last November, I predicted we would see a repetition of this pattern in his second term. It wasn’t a hard prediction, and I don’t claim any great credit for it. Sure enough, Trump 2.0 has indeed lost multiple cases over its attempts to impose grant conditions on sanctuary jurisdictions. Today’s ruling follows a similar April decision addressing a variety of federal grants, and one in June dealing with transportation grants.

    In the November 2024 post, I noted that longstanding Supreme Court precedent holds that conditions on federal grants must 1) be enacted and clearly indicated by Congress (the executive cannot make up its own grant conditions), 2) be related to the purposes of the grant in question (here, transportation grants cannot be conditioned on immigration enforcement), and 3) not be “coercive.”

    In the disaster aid case, the court seems obviously right to conclude the Trump conditions violated the first and second of these requirements. I would add that, in addition to being ambiguous, the conditions also were never authorized by Congress. And, Congress, not the executive, controls the spending power.

    Whether the disaster aid conditions are also “coercive” is more debatable. The Supreme Court’s jurisprudence on coercive grants is far from a model of clarity. NFIB v. Sebelius (2012), cited in today’s ruling famously held that a condition onerous enough to be a “gun to the head” is coercive, but doesn’t clearly explain exactly where the line between coercion and mere inducement is. I suspect that states actually vary as to the extent of their dependence on federal disaster aid, and therefore the conditions here may be coercive as to some states, but perhaps not others. Regardless, they were rightly invalidated on the other two grounds.

    Today’s ruling also holds that the disaster aid conditions violated the Administrative Procedure Act by being “arbitrary and capricious.” I will leave that issue to others with greater relevant expertise. I will also pass by the procedural mootness issue addressed by the court.

    There is, I think, a good policy argument for reducing federal disaster aid to state governments, and leaving most disaster relief to state, local, and private initiative. But that doesn’t mean the executive should be able to use disaster relief as leverage to control state policy on unrelated issues. More generally, as I have long argued, executive-imposed spending conditions are a major threat to both federalism and separation of powers.  Today’s  ruling, and others like it, help stave off that danger.

    They also reinforce Steve Vladeck’s point that the judiciary is resisting Trump’s power grabs more effectively than many think. The second Trump Administration, like the first, keeps losing sanctuary city cases, and so far they have not tried to get them to the Supreme Court (probably because they know they are like to lose there, too). Because the issue has not reached the Supreme Court, and because there is so much else going in the news cycle, these cases have not attracted much public and media attention. But they nonetheless have substantial real-world effects. Had they gone the other way, Trump would have many more levers to compel state and local governments to do his bidding. That doesn’t mean courts are doing everything right (they aren’t), or that they can curb Trump’s illegal policies entirely on their own (the latter requires a strategy combining litigation and political action). But they are making a real difference.

    For more on the issues at stake in these sorts of conditional spending cases, see my Texas Law Review article assessing litigation arising from Trump’s first-term attacks on sanctuary jurisdictions. In that article and other writings, I also explain why immigration sanctuaries (and conservative gun sanctuaries) are beneficial, and help protect our constitutional system.

    Ilya Somin

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  • Trump has a habit of asserting broad, unreviewable authority

    In separate attacks this month, the U.S. military blew up two speedboats in the Caribbean Sea, killing 14 alleged drug smugglers. Although those men could have been intercepted and arrested, President Donald Trump said he decided summary execution was appropriate as a deterrent to drug trafficking.

    To justify this unprecedented use of the U.S. military to kill criminal suspects, Trump invoked his “constitutional authority as Commander in Chief and Chief Executive” to protect “national security and foreign policy interests.” That assertion of sweeping presidential power fits an alarming pattern that is also apparent in Trump’s tariffs, his attempt to summarily deport suspected gang members as “alien enemies,” and his planned use of National Guard troops to fight crime in cities across the country.

    Although Trump described the boat attacks as acts of “self-defense,” he did not claim the people whose deaths he ordered were engaged in literal attacks on the United States. His framing instead relied on the dubious proposition that drug smuggling is tantamount to violent aggression.

    While that assumption is consistent with Trump’s often expressed desire to kill drug dealers, it is not consistent with the way drug laws are ordinarily enforced. In the absence of violent resistance, a police officer who decided to shoot a drug suspect dead rather than take him into custody would be guilty of murder.

    That seems like an accurate description of the attacks that Trump ordered. Yet he maintains that his constitutional license to kill, which apparently extends to civilians he views as threats to U.S. “national security and foreign policy interests,” transforms murder into self-defense.

    Trump has asserted similarly broad authority to impose stiff, ever-changing tariffs on goods imported from scores of countries. Last month, the U.S. Court of Appeals for the Federal Circuit rejected that audacious power grab, saying it was inconsistent with the 1977 statute on which Trump relied.

    The Federal Circuit said the International Emergency Economic Powers Act (IEEPA), which does not mention import taxes at all and had never before been used to impose them, does not give the president “unlimited authority” to “revise the tariff schedule” approved by Congress. The appeals court added that “the Government’s understanding of the scope of authority granted by IEEPA would render it an unconstitutional delegation.”

    Trump’s invocation of the Alien Enemies Act (AEA) against alleged members of the Venezuelan gang Tren de Aragua has also run into legal trouble. This month, the U.S. Court of Appeals for the 5th Circuit concluded that Trump had erroneously relied on a nonexistent “invasion or predatory incursion” to justify his use of that 1798 statute.

    Trump argued that the courts had no business deciding whether he had complied with the law. “The president’s determination that the factual prerequisites of the AEA have been met is not subject to judicial review,” Deputy Assistant Attorney General Drew Ensign told the 5th Circuit.

    Trump took a similar position in the tariff case. As an opposing lawyer noted, it amounted to the claim that “the president can do whatever he wants, whenever he wants, for as long as he wants, so long as he declares an emergency.”

    Trump also thinks his presidential powers include a mandate to protect public safety by deploying the National Guard, with or without the approval of state or local officials. In pursuing that plan, he claimed at a Cabinet meeting last month, he has “the right to do anything I want to do,” because “I’m the president of the United States.”

    As Trump sees it, that means “if I think our country is in danger—and it is in danger in these cities—I can do it.” In effect, Trump is asserting the sort of broad police power that the Constitution reserves to the states.

    If Trump’s crime-fighting plan provokes legal challenges, he is apt to argue that his authority is not only vast but unreviewable. That dangerous combination is emerging as a hallmark of his administration.

    © Copyright 2025 by Creators Syndicate Inc.

    Jacob Sullum

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  • The rationale for the federal circuit’s ‘radical left’ tariff decision is fundamentally conservative

    After the U.S. Court of Appeals for the Federal Circuit ruled against his tariffs last week, President Donald Trump repeatedly condemned the decision, which he preposterously warned will ruin the country unless it is overturned by the Supreme Court. “It would be a total disaster for the Country,” Trump wrote in a Truth Social post on Friday. “If allowed to stand, this Decision would literally destroy the United States of America.” He reiterated that claim on Sunday: “Our Country would be completely destroyed, and our military power would be instantly obliterated,” he said, adding that “we would become a Third World Nation, with no hope of GREATNESS again.”

    Trump’s prophecies of doom were not the only implausible aspect of his comments. He described the appeals court as “Highly Partisan,” implying that its reasoning was driven by political affiliation, and said the majority was “a Radical Left group of judges,” implying that the result was dictated by ideology rather than a careful consideration of the facts and the law. Trump reflexively criticizes judges who rule against him in language like this, to the point that he has stripped ideological labels of all meaning. In this case, his complaints are especially hard to take seriously.

    The Federal Circuit’s tariff decision addressed two lawsuits, one brought by several businesses and one filed by a dozen states. Both sets of plaintiffs argued that Trump exceeded his statutory authority when he relied on the International Emergency Economic Powers Act (IEEPA) to impose stiff taxes on imports from scores of countries.

    Seven members of the 11-judge panel agreed. And while it is true that six of those judges were appointed by Democratic presidents (Bill Clinton, Barack Obama, and Joe Biden), the majority also included Alan D. Lourie, who was nominated by George H.W. Bush in 1990. Notably, Lourie was also one of four judges who went further than the majority, arguing that IEEPA “does not authorize the President to impose any tariffs” (emphasis added).

    Four judges dissented, saying the plaintiffs “have not justified summary judgment in their favor on either statutory or constitutional grounds.” Two of the dissenters were appointed by George W. Bush, and two were appointed by Obama.

    These breakdowns do not support Trump’s contention that the judges chose sides based on partisan considerations, as opposed to an honest assessment of the statutory and constitutional issues. That explanation looks even less plausible as applied to the May 28 Court of International Trade (CIT) decision that the Federal Circuit reviewed. Three CIT judges, including one nominated by Ronald Reagan and one nominated by Trump himself, unanimously concluded that the president’s tariffs were not authorized by IEEPA.

    When you consider the reasoning underlying these decisions, the claim that they can be explained only by anti-Trump animus or allegiance to a “Radical Left” ideology looks even sillier. Both courts noted that Trump’s use of IEEPA, which does not mention tariffs at all, was unprecedented and involved an assertion of authority that implicated the “major questions” doctrine, which aims to uphold the separation of powers.

    According to the Supreme Court, that doctrine applies when the executive branch asserts powers of vast “economic and political significance.” In such cases, “the Government must point to ‘clear congressional authorization’ for that asserted power,” the Federal Circuit noted. “The tariffs at issue in this case implicate the concerns animating the major questions doctrine as they are both ‘unheralded’ and ‘transformative.’” The Supreme Court “has explained that where the Government has ‘never previously claimed powers of this magnitude,’ the major questions doctrine may be implicated.”

    Trump claimed to have discovered a heretofore unnoticed delegation of unlimited tariff authority in a statute that is nearly half a century old. That claim, the Federal Circuit concluded, “runs afoul of the major questions doctrine.”

    Far from the invention of “Radical Left” judges, the major questions doctrine stems from a series of Supreme Court decisions spearheaded by conservative justices. The late Antonin Scalia, whom Trump has described as the very model of a “great” jurist, explained the rationale for the doctrine this way in the 2001 case Whitman v. American Trucking Associations: “Congress, we have held, does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes.”

    The Supreme Court has applied that logic in several decisions rejecting assertions of agency authority, including the Food and Drug Administration’s attempt to regulate tobacco products without explicit congressional authorization, the national eviction moratorium imposed by the Centers for Disease Control and Prevention in response to the COVID-19 pandemic, the COVID-19 vaccine mandate that the Occupational Safety and Health Administration tried to impose on employers in 2021, and the Biden administration’s student debt relief plan. Whatever you might think of those decisions, they are hardly evidence of a “Radical Left” mindset.

    As in those cases, the central question in the tariff case was whether Congress had actually delegated the broad powers claimed by the executive branch. Another issue was whether Congress could, consistent with the Constitution’s separation of powers, delegate such authority. In addition to concluding that IEEPA did not authorize Trump’s tariffs, the Federal Circuit noted that “the Government’s understanding of the scope of authority granted by IEEPA would render it an unconstitutional delegation.”

    The rationale for that ruling is not, by any stretch of the imagination, the product of “Radical Left” thinking. It is conservative in the best sense, aiming to preserve the structure of government established by the Constitution.

    Jacob Sullum

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  • The federal circuit’s tariff ruling highlights the audacity of Trump’s power grab

    In ruling against the sweeping tariffs that President Donald Trump purported to impose under the International Emergency Economic Powers Act (IEEPA), the U.S. Court of Appeals for the Federal Circuit did not settle the question of whether that law authorizes import taxes. Nor did it uphold the injunction that the Court of International Trade (CIT) issued against the tariffs on May 28. But the Federal Circuit agreed with the CIT that the tariffs are unlawful, and its reasoning highlights the audacity of Trump’s claim that IEEPA empowers him to completely rewrite tariff schedules approved by Congress.

    The decision addresses two challenges to Trump’s tariffs, one brought by several businesses and one filed by a dozen states. Both sets of plaintiffs argued that Trump had illegally seized powers that belong to Congress.

    The Constitution gives Congress, not the president, the power to “lay and collect taxes, duties, imposts and excises.” And although Congress has delegated that authority to the president in “numerous statutes,” the Federal Circuit notes in an unsigned opinion joined by seven members of an 11-judge panel, it has always “used clear and precise terms” to do so, “reciting the term ‘duties’ or one of its synonyms.” Furthermore, Congress always has imposed “well-defined procedural and substantive limitations” on the president’s tariff powers.

    IEEPA, by contrast, “neither mentions tariffs (or any of its synonyms) nor has procedural safeguards that contain clear limits on the President’s power to impose tariffs.” Yet under Trump’s reading of the statute, it empowers him to impose any tariffs he wants against any country he chooses for as long as he deems appropriate, provided he perceives an “unusual and extraordinary threat” that constitutes a “national emergency” and avers that the import taxes will “deal with” that threat.

    To justify his tariffs, Trump declared two supposed emergencies, one involving international drug smuggling and the other involving the U.S. trade deficit. The former “emergency,” he said, justified punitive tariffs on goods from Mexico, Canada, and China, with the aim of encouraging greater cooperation in the war on drugs. The latter “emergency,” he claimed, justified hefty, ever-shifting taxes on imports from dozens of countries, which he implausibly described as “reciprocal.”

    Leaving aside the question of whether it makes sense to characterize drug trafficking and trade imbalances, both of which are longstanding phenomena, as “unusual and extraordinary” threats, Trump’s attempted power grab is striking even for him. “Since IEEPA was promulgated almost fifty years ago, past presidents have invoked IEEPA frequently,” the Federal Circuit notes. “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.”

    Trump claims to have discovered a heretofore unnoticed tariff power in an IEEPA provision that authorizes the president to “regulate…importation.” And that power, he avers, is not subject to any “procedural and substantive limitations” except for the pro forma requirement that he declare a national emergency based on a foreign threat. As the Federal Circuit dryly observes, “it seems unlikely that Congress intended, in enacting IEEPA, to depart from its past practice and grant the President unlimited authority to impose tariffs.”

    Trump’s assertion of that authority “runs afoul of the major questions doctrine,” the Federal Circuit says. According to the Supreme Court, that doctrine applies when the executive branch asserts powers of vast “economic and political significance.” In such cases, “the Government must point to ‘clear congressional authorization’ for that asserted power,” the appeals court notes. “The tariffs at issue in this case implicate the concerns animating the major questions doctrine as they are both ‘unheralded’ and ‘transformative.’” The Supreme Court “has explained that where the Government has ‘never previously claimed powers of this magnitude,’ the major questions doctrine may be implicated.”

    The Federal Circuit was unimpressed by the government’s citation of United States v. Yoshida International, a 1975 case in which the now-defunct Court of Customs and Patent Appeals approved a 10 percent import surcharge that President Richard Nixon had briefly imposed in 1971 under the Trading With the Enemy Act (TWEA). Although Nixon relied on a different statute, the government’s lawyers noted, the court concluded that the phrase “regulate importation” in TWEA encompassed tariffs.

    Even assuming that conclusion was correct, the Federal Circuit says, Yoshida “does not hold that TWEA created unlimited authority in the President to revise the tariff schedule, but only the limited temporary authority to impose tariffs that would not exceed the Congressionally approved tariff rates.” Trump, by contrast, claims IEEPA gives him carte blanche to set tariffs, regardless of what Congress has said.

    “The Government’s expansive interpretation of ‘regulate’ is not supported by the plain text of IEEPA,” the Federal Circuit says. “The Government’s reliance on the ratification of our predecessor court’s opinion in [Yoshida] does not overcome this plain meaning.” The appeals court adds that “the Government’s understanding of the scope of authority granted by IEEPA would render it an unconstitutional delegation.”

    Four judges agreed with the majority that IEEPA “does not grant the President authority to impose the type of tariffs imposed by the Executive Orders.” But they went further in a separate opinion, arguing that the statute does not authorize the president to impose any tariffs at all.

    As Reason‘s Eric Boehm notes, the appeals court nevertheless vacated the CIT’s injunction and remanded the case for further consideration in light of the Supreme Court’s June 27 decision in Trump v. CASA. In that June 27 ruling, the Court questioned universal injunctions that judges had issued in two birthright citizenship cases “to the extent that the injunctions are broader than necessary to provide complete relief to each plaintiff with standing to sue.”

    Although the Supreme Court “held that the universal injunctions at issue ‘likely exceed the equitable authority Congress has granted to federal courts,’” the Federal Circuit notes, “it ‘decline[d] to take up…in the first instance’ arguments as to the permissible scope of injunctive relief. Instead, it instructed ‘[t]he lower courts [to] move expeditiously to ensure that, with respect to each plaintiff, the injunctions comport with this rule and otherwise comply with principles of equity’ as outlined in the opinion. We will follow this same practice.”

    On remand, the Federal Circuit says, “the CIT should consider in the first instance whether its grant of a universal injunction comports with the standards outlined by the Supreme Court in CASA.” The CIT, in other words, is tasked with deciding what sort of order is appropriate to grant the plaintiffs “complete relief.” Alternatively, as Boehm suggests, Congress could intervene by asserting the tariff authority that Trump is trying to usurp.

    Jacob Sullum

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  • DiZoglio blasts legislative leaders in audit

    DiZoglio blasts legislative leaders in audit

    BOSTON — The state Legislature lacks transparency and accountability in its dealings, according to a new state audit, which blasts legislative leaders for refusing to open up their books for the performance review.

    The audit, released Monday by Auditor Diana DiZoglio, faults the state House of Representatives and Senate for failing to conduct timely financial reviews of its spending, a lack of transparency in its procurement policies and a website that makes it difficult for the public to navigate, among other criticisms.

    But DiZoglio also leaned into House and Senate leaders for refusing to provide information her office requested for the audit, including tracking year-end budget spending, how they decide which major bills are brought up for a vote and whether the two chambers are following their own rules regarding non-disclosure agreements.

    “It is deeply concerning that legislative leaders have refused to cooperate with our office to help promote transparency and identify ways to improve service to the people of Massachusetts,” the Democrat said in a statement. “Transparency and accountability are cornerstones of our democracy and enable the people to participate in government as intended in our Constitution, in a system of checks and balances.”

    The audit comes as DiZoglio urges voters to approve Question 1, which if approved would force legislative leaders to open up their books for an independent review.

    Under current laws, the auditor has the power to examine “all departments, offices, commissions, institutions and activities of the commonwealth” but the ballot question would expand those powers to specifically include the Legislature.

    The referendum was proposed by DiZoglio, a Methuen Democrat and former state lawmaker, whose high-profile efforts to audit the House and Senate have been blocked by legislative leaders who argue the move is unconstitutional.

    The partial audit released on Monday found that the Senate and House didn’t ensure annual financial audits were completed, filed with required recipients, or made available to the public in a timely way, in an apparent violation of their own rules.

    The review also found that the Legislature’s procurement policies lack transparency, which auditors said limit the public’s ability to hold the Legislature accountable.

    The Massachusetts Legislature’s website also lacks content and is hard to navigate, compared to other state’s legislative bodies, which auditors said “hinders the public’s ability to understand and engage in the legislative process and hold the Legislature accountable for ensuring an equitable mode of making laws.”

    Other concerns flagged by auditors included a lack of details about how legislative leaders appoint committee chairpersons and other posts that bump up lawmaker’s prestige and compensation.

    Legislative leaders were asked to respond to the findings of the audit, but DiZoglio’s office said they declined.

    “The purported audit of the Legislature released by the Auditor today confirms only one thing: the Auditor has abandoned all pretext of faithfully performing her statutory responsibilities in favor of using her office for pure political self-promotion and electioneering,” House Speaker Ron Mariano said in a statement on Monday in response to the report.

    “The Auditor should instead be focusing on her statutorily mandated reviews, as she continues to underperform her predecessors in the completion of that important work,” he added.

    DiZoglio launched her review of the Legislature more than a year ago but said she hasn’t been able to get access to individuals and records her office needs for a forensic investigation.

    Mariano, a Quincy Democrat, and Senate President Karen Spilka, D-Ashland, have so far blocked her efforts to conduct the investigation into the House and Senate’s inner workings, calling the proposed audit “unconstitutional” and claiming it would violate the separation of powers.

    DiZoglio has framed the plan as part of a broader effort to improve transparency and accountability in Legislature, which is continuously ranked as one of the least effective and least transparent legislative bodies in the country. It is also one of only four state Legislatures that exempts itself from public records laws, DiZoglio points out.

    The effort was dealt a blow last year when Attorney General Andrea Campbell’s office rejected DiZoglio’s request to file a lawsuit to force the audit, saying a review of state laws, judicial rulings and the historical record, suggests she doesn’t have standing to file the legal challenge.

    A panel of six lawmakers who reviewed the proposal issued a report concluding that passage of Question 1 would “undermine the separation of powers between the branches of government.” The report included testimony from constitutional scholars and civics educators who oppose the move.

    Despite that, recent polls have shown voters strongly support Question 1 — one of five referendums on the Nov. 5 ballot — which hasn’t drawn any organized opposition.

    Christian M. Wade covers the Massachusetts Statehouse for North of Boston Media Group’s newspapers and websites. Email him at cwade@cnhinews.com.

    By Christian M. Wade | Statehouse Reporter

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