For the most part, the argument goes that the basis for imposing tariffs, the declaration of a national emergency under the International Emergency Economic Powers Act of 1977 (IEEPA), is a pointless circle, since it’s the president who gets to decide and declare the existence of an emergency. But the New Civil Liberties Alliance has brought suit against Trump under a different theory, challenging his initial tariffs against China.

The complaint alleges that Trump’s executive orders raising tariffs on Chinese imports exceed the statutory authority of the IEEPA, and that a ruling upholding this assumed authority would violate the nondelegation doctrine, which prohibits Congress from transferring to other branches of government “powers which are strictly and exclusively legislative.” When Congress does delegate its power, it must provide an intelligible principle, i.e., “a legal framework to constrain the authority of the delegee.” The suit argues that the IEEPA contains no such principle vis-à-vis tariffs, which are nowhere mentioned in the statute.

The non-delegation doctrine kicker is the final sentence. Tariffs? Where does the statute authorize the president to impose tariffs?

However, this statute authorizes specific emergency actions like imposing sanctions or freezing assets to protect the United States from foreign threats. It does not authorize the President to impose tariffs. In its nearly 50-year history, no other president—including President Trump in his first term—has ever tried to use the IEEPA to impose tariffs. This lawsuit does not quibble with President Trump’s declaration of an opioid-related emergency, but it does take issue with his decision to impose tariffs in response, without legal authority to do so.

Yet again, reading the authorizing statute makes a big difference in how one views presidential actions, whether at the outer reach of delegated authority or beyond it.

Under art. 1, § 8 of the Constitution, Congress has sole authority to control tariffs, which it has done by passing detailed tariff statutes. The President cannot bypass those statutes by invoking “emergency” authority in another statute that does not mention tariffs. His attempt to use the IEEPA this way not only violates the law as written, but it also invites application of the Supreme Court’s Major Questions Doctrine, which tells courts not to discern policies of “vast economic and political significance” in a law without explicit congressional authorization. If the IEEPA were held to permit this executive order, then the statute would run afoul of the nondelegation doctrine because it lacks an “intelligible principle” to limit or guide the president’s discretion in imposing tariffs.

Whether or not there is an emergency is a separate question. Even assuming that Congress has, yet again, abdicated its responsibility by empowering Trump to declare an emergency at his whim, or whenever Laura Loomer tells him to, the authorizing statute makes no provision for the imposition of tariffs as the remedy to address the emergency. It does mention imposing sanctions and freezing assets. Expressio unius est exclusio alterius, dudes.

On top of that, there’s the Major Questions Doctrine, since the imposition of global tariffs without express authorization has about as vast an economic significance as there gets. By doing this, Trump has essentially wreaked global havoc, and clearly given rise to a fundamental alteration of the American economy. It would be one thing if Congress, yet again, actually abdicated its responsibility to be a coequal branch of government to the president, but it’s entirely another when Congress did not.

I believe the Liberation Day tariffs are even more vulnerable on major questions and nondelegation grounds than the February China tariff, because of their vastly greater scope. They are a much bigger (or more “major”) question, and also a more egregious example of “delegation run riot,” as University of Texas law Prof. Sanford Levinson calls it.

While it may not matter to Trump or the MAGA faithful that the president lacks the authority to impose tariffs, it should matter to the courts that the enabling statute nowhere provides for the president to engage in such relief, even if there is an emergency sufficient to invoke the IEEPA. Of course, that raises the next question, which is should the courts hold that Trump exceeded his authority under the statute, who is going to stop him from imposing tariffs anyway?