“Three years ago..the U.S. Supreme Court struck down Roe v. Wade and conservative states rushed to pass strict new abortion bans or revive old ones still on the books but unenforceable under Roe. And for a short while, things went according to anti-abortion campaigners’ wishes, with the U.S. abortion rate—which had been declining since the 1990s anyway—continuing to fall.
But over the past couple of years, the U.S. abortion rate has begun to creep back up, according to data from the Society of Family Planning. There were more abortions in the U.S. in 2024 than in either 2023 or 2022, according to the group’s latest #WeCount report.”
“Trump unilaterally imposed tariffs on much of the world. Yet the president has no such authority under Article II of the Constitution, which enumerates the limited powers of the executive branch. Instead, the authority “to lay and collect Taxes, Duties, Imposts and Excises,” as well as the authority “to regulate Commerce with Foreign nations,” resides exclusively in Article I, which is where the limited powers of the legislative branch are detailed.
So, Trump’s trade war violates the constitutional separation of powers because Trump has unlawfully exercised power that the Constitution placed in the hands of Congress, not in the hands of the president.”
…
“As a pretext for his trade war, Trump invoked the International Emergency Economic Powers Act (IEEPA). Yet “the statute is silent on tariffs, and for good reason. It was never meant, and has never been understood, to authorize the President to impose them.” That observation comes from a superb friend of the court brief filed by a cross-ideological group of legal scholars and former government officials in support of the legal challenge against Trump’s tariffs. Their brief thoroughly explains why Trump’s use of the IEEPA to fundamentally remake the American economy cannot be reconciled with any law passed by Congress. In short, Trump’s tariffs flunk the test imposed by the major questions doctrine.”
“Yoshida at first glance appeared to be quite helpful to the Trump administration.
The court concluded that the tariff was legally justified under the TWEA to address the trade imbalance and pointed to language in the statute that authorized the president to “regulate” the “importation” of foreign goods in the event of an emergency. That language was carried over into IEEPA as part of a much longer list of actions permitted by the president, though that list does not explicitly mention either tariffs or taxes (a point to which we will return).
In light of the parallel statutory language in TWEA and IEEPA, the Justice Department argued that Yoshida “continues to control today” and requires the Court of International Trade to rule in favor of the Trump administration.
As Wednesday’s decision makes clear, it was not so simple.
In several crucial respects, the Yoshida decision cut sharply against the administration’s position. That put the Justice Department in the awkward — and generally unenviable — position of having to pick and choose which parts of the decision that it likes, and which parts of the decision the courts should ignore.
For starters, the Yoshida decision rejected a key proposition that is at the heart of the government’s defense of Trump’s tariffs — the notion that courts have no power to review a president’s actions under IEEPA.
The court ruled in Yoshida that each presidential action under the statute “must be evaluated on its own facts and circumstances.” The court went on to emphasize that its ruling, while favorable to the Nixon administration, was not a blanket approval of “any future surcharge of a different nature, or any surcharge differently applied or any surcharge not reasonably related to the emergency declared;” that the president’s actions under the statute “must also bear a reasonable relation to the particular emergency confronted;” and that “emergencies are expected to be shortlived.”
In other words, the facts matter. But the facts then under Nixon — and the facts now under Trump — are markedly different.
Nixon’s tariff was fixed at 10 percent and in place for less than five months. Trump’s tariff framework is far more ambitious, open-ended and has been all over the place since his inauguration — with the effective dates and applicable countries, rates, exceptions and concessions under seemingly constant revision.
And if Trump and some of his advisors are to be believed, there would be no end in sight. “If President Trump succeeds like he wants to succeed,” Trump’s trade adviser Peter Navarro said earlier this year, “we are going to structurally shift the American economy from one over-reliant on income taxes and the Internal Revenue Service, to one which is also reliant on tariff revenue and the External Revenue Service.” That is a far cry from a five-month, supplemental 10 percent tariff like what Nixon imposed.
Two other, subtler points in the Yoshida decision made things worse for the administration.
First, Nixon’s tariff did not apply to all imports — only those that had been the subject of prior concessions under the government’s tariff schedule — and Nixon made clear in announcing the policy that the rates would nevertheless be capped at levels that Congress had previously set for the relevant goods. As a result, the court concluded in Yoshida that “the congressionally established rates remained untouched” and that Nixon was not claiming the power to simply impose “whatever tariff rates he deems desirable.”
Trump made no such concessions, which made it a relatively straightforward matter for the court on Wednesday to contrast Nixon’s “limited” tariffs with those imposed by Trump. Indeed, given the administration’s position that the courts cannot review Trump’s emergency declarations in support of the tariffs or circumscribe his authority to issue tariffs under IEEPA, he has effectively claimed the power not just to issue “whatever tariff rates he deems desirable” but to impose those tariffs whenever he wants, for any reason that he wants and for however long he wants.
Second, as a footnote in the Yoshida decision notes, Congress later enacted a specific statutory provision to address the problem that attracted the Nixon administration’s attention. That provision authorizes the president to impose tariffs in response to “large and serious … balance-of-payments deficits,” but it caps those tariffs at 15 percent and limits them to a duration of just 150 days unless Congress authorizes an extension.
Needless to say, the Trump administration did not invoke that statute, and Justice Department lawyers sought to downplay its significance given the fact that Congress kept the statutory language at issue in Yoshida on the books in IEEPA.
This argument also did not move the three judges on the Court of International Trade. They concluded that the existence of the statute demonstrated that “even ‘large and serious United States balance-of-payments deficits’ do not necessitate the use of emergency powers” and that they “justify only the President’s imposition of limited remedies subject to enumerated procedural constraints.”
The argument was rooted in the conclusion in Yoshida that if a president wanted to impose a similar tariff in the future, he must “comply with the statute now governing such action.”
Trump, of course, had no interest in doing that.
There is no way to definitively predict how the appellate court — and eventually the Supreme Court”
“The court emphasized that the men — whom the Trump administration has labeled “alien enemies” — are entitled to more due process than the administration has so far provided. That means advance notice of their deportations and a meaningful opportunity to challenge the deportations in court, the justices wrote in an unsigned opinion.”
“First, the Constitution gives Congress the authority to tax and impose tariffs. Congress has delegated that authority to the executive branch in a handful of trade laws passed over the course of the last century, but the president’s power in this area is a function of the particular language contained in those statutes. (The likely reason that Trump invoked IEEPA is that, unlike the more commonly invoked trade laws, IEEPA does not require administrative investigations or consultations with Congress.)
Second, the relevant provision of the IEEPA contains a bunch of words, but none of those words is “tariffs” or “taxes.”
Indeed, no president before Trump has ever used the IEEPA to impose tariffs. The law has typically been deployed to impose economic sanctions, such as prohibitions on transactions with designated foreign governments or businesses.
In theory, these facts should resonate with the Republican appointees on the court, who typically hold themselves out as committed textualists, eager to adhere only to the words on the page.
Third, even if the IEEPA granted the president the authority to impose tariffs, there are no actual “emergencies” here that would support them (though we will return to this notion).
The law authorizes the president to act when there is “an unusual and extraordinary threat … to the national security, foreign policy, or economy of the United States,” and the Trump administration has claimed that there are several different emergencies. They include the opioid crisis and illegal immigration, which Trump has invoked to support tariffs against Canada, Mexico and China. To support other global tariffs, Trump has claimed that the country’s “trade deficits” constitute the emergency.
At least as a factual matter, credible independent analysts have generally rejected these claims. Take the country’s trade deficits. “They’re not actually harmful any more than it’s somehow harmful if I have a trade deficit with my local supermarket,” Somin said. “I buy a lot of things from them, but they virtually never buy anything from me.”
Fourth, as the California complaint correctly notes, IEEPA was passed as part of an effort in the 1970s to limit the president’s emergency economic powers. Congress did not intend to expand the president’s powers or to give him carte blanche to overhaul the global trading system.
That fact may not move the Republican appointees on the Supreme Court if the issue gets to them — they generally oppose the use of legislative history in statutory interpretation — but it is likely to prove relevant to the three Democratic appointees.”
…
” The Supreme Court might also side with the Trump administration given that the court is generally deferential to the president’s handling of foreign policy and his assessment of what constitutes a national emergency. We may not have had any national emergencies before Trump returned to office, but ironically, his tariffs may themselves have caused a global emergency — one that could give the justices reason to pause before coming in against the president in a way that could now severely constrain his powers on the global stage and diminish his international diplomatic standing.”
Trump defying a Supreme Court order is a constitutional crisis. The crisis comes to a head with Congress derelict in its duty. The only one with the power to enforce limits on the president’s power is Congress through its power of impeachment and a little bit through passing legislation that restrains the president.
“At the heart of the Trump administration’s position is a naked assertion of unchecked power. Once the federal government has deported someone to the hellish prison in El Salvador, the Trump administration asserts, there is nothing that anyone—especially not a federal judge—can do about it. What is worse, by the administration’s own admission, it does not matter whether the deportee was lawfully removed in the first place or not. As Justice Sonia Sotomayor has accurately observed, “the Government’s argument…implies that it could deport and incarcerate any person, including U.S. citizens, without legal consequence, so long as it does so before a court can intervene.” The word for what Sotomayor is describing is despotism.”
“President Donald Trump has cracked down on immigration in his second term, deporting undocumented migrants and perhaps citizens next.
In the process, members of Trump’s administration have demonstrated an overt hostility to basic rights of due process.
On March 12, agents with Immigration and Customs Enforcement (ICE) arrested Kilmar Abrego Garcia, an undocumented immigrant from El Salvador. Three days later, the government deported him back to El Salvador to be held in the Terrorism Confinement Center (CECOT), an overcrowded and dangerous mega-prison where the country’s president offered to warehouse deportees from the U.S.
There is much to oppose in that action, perhaps most of all that Abrego Garcia—who had previously been granted a reprieve from deportation—was denied any semblance of due process when government agents grabbed him up, told him his protected status had been revoked, and shuffled him out of the country, all within the span of a long weekend.
The Trump administration contends Abrego Garcia is not entitled to due process, in part because he is a member of the violent street gang MS-13. “That may be true,” wrote Cato Institute scholar David Post. “The government, however, has provided no evidence, to a grand jury or to a magistrate or to any third party, that it is true.”
Nevertheless, the government is sticking by the claim.”
…
“According to an April order by Judge Paula Xinis of the U.S. District Court of Maryland, Abrego Garcia immigrated from El Salvador to flee gang violence, settling in Maryland with his brother, a U.S. citizen. After he was arrested in 2019 and turned over to Immigration and Customs Enforcement (ICE) for deportation, he told an immigration judge he would be subject to gang retaliation if he was sent back. The judge denied his request for bond and ordered him detained “pending the outcome of his requested relief from deportation,” as Xinis wrote. (By itself, a denial of bond is not indicative that he presents any danger: “The immigration judge is only taking at face value any evidence that the government provides,” said David Bier of the Cato Institute. “It is not assessing its underlying validity at that stage.”)
Later that year, “following a full evidentiary hearing, the [immigration judge] granted Abrego Garcia withholding of removal to El Salvador,” which “prohibits [the Department of Homeland Security] from returning an alien to the specific country in which he faces clear probability of persecution,” Xinis added.”
…
“Vance’s post is galling for how little he seems to care about due process, the constitutional provision nominally preventing the government from throwing any of us in prison for any reason it wishes. That this seems to reflect the general attitude of the administration in which he serves would be frightening even if not for the fact that its only justification is that it simply doesn’t make mistakes when identifying terrorists and gang members.
“Ask the people weeping over the lack of due process what precisely they propose for dealing with [former President Joe] Biden’s millions and millions of illegals,” Vance wrote. “And with reasonable resource and administrative judge constraints, does their solution allow us to deport at least a few million people per year?”
This has nothing to do with deporting the undocumented: A judge already adjudicated Abrego Garcia’s case and granted him a reprieve from deportation. If the Trump administration had contrary evidence indicating he should instead be deported, then it should present that evidence in a court of law.
Instead, what evidence has been presented is flimsy, to say the least. “The ‘evidence’ against Abrego Garcia consisted of nothing more than his Chicago Bulls hat and hoodie, and a vague, uncorroborated allegation from a confidential informant claiming he belonged to MS-13’s ‘Western’ clique in New York—a place he has never lived,” Xinis wrote. “No evidence before the Court connects Abrego García to MS-13 or any other criminal organization.”
Even what flimsy evidence there is has fallen apart in recent days: That single “vague, uncorroborated allegation” was lodged by Ivan Mendez, a Maryland police officer who arrested Abrego Garcia in 2019. Within days, Mendez was suspended, and would later be indicted, for giving “confidential information” about “an on-going police investigation” to “a commercial sex worker who he was paying in exchange for sexual acts,” according to the Prince George’s County Police Department.”
…
“”When Garcia was arrested he was found with rolls of cash and drugs,” wrote Tricia McLaughlin, assistant secretary for public affairs at the Department of Homeland Security (DHS). “He was arrested with two other members of MS-13” while “wearing what is effectively MS-13’s uniform.””
…
“wearing NBA merch is not a crime. And if Abrego Garcia were actually associating with MS-13 members, or if he were abusive to his wife, then these are details that would be extremely pertinent to bring up in a court of law.
Instead, the administration has obfuscated even in the face of judicial action. Earlier this month, the U.S. Supreme Court unanimously upheld a lower court order finding deportees were entitled to due process and instructing the government to “facilitate” Abrego Garcia’s return to the U.S. The administration even admitted in court filings that Abrego Garcia was deported “because of an administrative error.” (The attorney who filed the brief containing that language was apparently later suspended.)
Nevertheless, the administration insists it has no ability to retrieve Abrego Garcia from the Salvadoran prison where the U.S. government is currently paying $25,000 to house him—what Reason’s Damon Root called “a naked assertion of unchecked power.” In the Oval Office, Trump and Salvadoran President Nayib Bukele each claimed they were unable to return the man mistakenly deported and housed in a facility intended for terrorists.”