“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.”
“Under the Fifth Amendment, Boasberg notes, the government’s assertion that it infallibly identifies the guilty “does not suffice.” As the Supreme Court confirmed in Trump v. J.G.G., which addressed a temporary restraining order (TRO) that Boasberg issued during an earlier round of the ACLU’s litigation, “‘it is well established that the Fifth Amendment entitles aliens to due process of law’ in the context of removal proceedings,” meaning “the detainees are entitled to notice and opportunity to be heard ‘appropriate to the nature of the case.'” Specifically, the justices said, “AEA detainees must receive notice after the date of this order that they are subject to removal under the Act. The notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.””
“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”
“President Donald Trump claims that the Alien Enemies Act of 1798 grants him the power to deport certain Venezuelan-born aliens without due process, based on the mere allegation of membership in a criminal street gang.
But the text of the Alien Enemies Act does not allow the president to do anything of the sort. “Whenever there shall be a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion shall be perpetrated, attempted, or threatened against the territory of the United States, by any foreign nation or government,” the act states, the president may direct the “removal” of “all natives, citizens, denizens, or subjects of the hostile nation or government, being males of the age of fourteen years and upwards, who shall be within the United States, and not actually naturalized.”
The crimes of the alleged members of the street gang Tren de Aragua do not meet this legal standard. There is no “declared war” between the United States and Venezuela, and there is no “invasion or predatory incursion” of the U.S. by “any foreign nation or government.” The gang is not a foreign state, and the gang’s alleged crimes, heinous as they may be, do not qualify as acts of war by a foreign state. Trump’s frequent talk about a rhetorical “invasion” of the U.S. by undocumented immigrants utterly fails to satisfy the law’s requirements.”
“Trump had used the International Emergency Economic Powers Act (IEEPA) to impose tariffs on nearly all imports to the U.S., even though that law narrowly authorizes presidential actions only in response to “an unusual and extraordinary threat.”
International commerce is plainly neither of those things, as the court concluded in its ruling. “We do not read IEEPA to delegate an unbounded tariff authority to the President,” the judges wrote. “We instead read IEEPA’s provisions to impose meaningful limits on any such authority it confers.”
By reviewing the actions of the executive branch to ensure they comport with the underlying law, the Court of International Trade merely fulfilled the constitutional role of the judiciary. ”
A story of police incompetence resulting in an innocent man killed.
“At that point, according to the complaint, the officers “finally announced themselves, and Kimberly Dotson told them that someone had shot her husband and requested their help.” She “did not realize even at that moment that the three police officers had killed her husband,” which she did not learn “until she was finally told eight hours later at the police station where she was detained.”
After the shooting, the lawsuit says, “the officers involved did not disclose to investigators that they were at the wrong address, which was the error leading to the tragic result and without which it would not have occurred.” The mistake “was discovered by other officers who arrived at the scene.””
…
“In Garcia’s view, the late-night visit at the wrong house that resulted in Dotson’s death did not amount to such recklessness. He is not alone in concluding that police cannot reasonably be expected to make sure they are in the right place when they approach or even break into someone’s home.”
“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.”
“When a Guatemalan man sued the Trump administration in March for deporting him to Mexico despite a fear of persecution, immigration officials had a response: The man told them himself he was not afraid to be sent there.
But in a late Friday court filing, the administration acknowledged that this claim — a key plank of the government’s response to a high-stakes class action lawsuit — was based on erroneous information.”