There were many reasons raised as to why Trump’s unliteral imposition of tariffs violated the law and the Constitution. A three-judge panel of the Court of International Trade, including judges appointed by Reagan and Trump, held that every single argument raised precluded Trump from imposing tariffs, as I argued here last April.

The US Court of International Trade just issued a unanimous ruling in the case against Trump’s “liberation day” tariffs filed by Liberty Justice Center and myself on behalf of five US businesses harmed by the tariffs. The ruling also covers the case filed by twelve states led by Oregon; they, too, have prevailed on all counts. All of Trump’s tariffs adopted under the International Emergency Economic Powers Act of 1977  (IEEPA) are invalidated as beyond the scope of executive power, and their implementation blocked by a permanent injunction. In addition to striking down the “Liberation Day” tariffs challenged in our case (what the opinion refers to as the “Worldwide and Retaliatory Tariffs”), the  court also ruled against the fentanyl-related tariffs imposed on Canada, Mexico, and China (which were challenged in the Oregon case; the court calls them the “Trafficking Tariffs”).

The problem isn’t the tariffs cannot be imposed, but that the president cannot declare a fake emergency and usurp the authority the Constitution gives to Congress to do so. The IEEPA does not give Trump the authority. The Constitution does not give Trump the authority. Trump does not, and never did, have the authority. He just did it, and the court held he could not.

The Constitution assigns Congress the exclusive powers to “lay and collect Taxes, Duties, Imposts and Excises,” and to “regulate Commerce with foreign Nations.” U.S. Const. art. I, § 8, cls. 1, 3. The question in the two cases before the court is whether the International Emergency Economic Powers Act of 1977 (“IEEPA”) delegates these powers to the President in the form of authority to impose unlimited tariffs on goods from nearly every country in the world. The court does not read IEEPA to confer such unbounded authority and sets aside the challenged tariffs imposed thereunder.

And then there are the constitutional failings.

The parties cite two doctrines—the nondelegation doctrine and the major questions
doctrine—that the judiciary has developed to ensure that the branches do not impermissibly abdicate their respective constitutionally vested powers. Under the nondelegation doctrine, Congress must “lay down by legislative act an intelligible principle to which the person or body authorized to fix such [tariff] rates is directed to conform.” J.W. Hampton, Jr., 276 U.S. at 409 (1928); see also Pan. Refining, 293 U.S. at 429–30. A statute lays down an intelligible principle when it “meaningfully constrains” the President’s authority. Touby v. United States, 500 U.S. 160, 166 (1991)… Under the major questions doctrine, when Congress delegates powers of “‘vast economic and political significance,'” it must “speak clearly.”

The separation of powers is always relevant to delegations of power between the branches. Both the nondelegation and the major questions doctrines, even if not directly applied to strike down a statute as unconstitutional, provide useful tools for the court to interpret statutes so as to avoid constitutional problems. These tools indicate that an unlimited delegation of tariff authority would constitute an improper abdication of legislative power to another branch of government. Regardless of whether the court views the President’s actions through the nondelegation doctrine, through the major questions doctrine, or simply with separation of powers in mind, any interpretation of IEEPA that delegates unlimited tariff authority is unconstitutional.

But what of the chaos wreaked upon the United States and the rest of the world? What of the monies paid, the goods unordered, the business undone, the changes made to accommodate the havoc, the losses incurred when the stock market crashed? Well, tough nuggies. Trump’s actions here, as with his unilateral command to rendition aliens without due process or in defiance of court orders, cannot be undone, even if they will no longer fly going forward.

In the meantime, the court’s decision gives the administration 10 days before the order takes effect to allow for an application for a stay pending appeal. Notice of appeal has already been filed, with Trump likely anticipating that when the gets ultimately goes before “his” Supreme Court, it will allow him to do as he pleases, law be damned.

But the argument made by the government in support of Trump’s seizure of power for himself is unlikely to persuade any judge not named Alito or Thomas.

Lawyers for the Justice Department had staunchly defended the legality of Mr. Trump’s strategy, telling the Court of International Trade repeatedly that it had no right to review the president’s actions.

If this sounds like the contention made by the MAGA faithful on twitter, it is. Trump is the president and he can do anything he wants because he was elected president.

“The president identified the emergency, and he decided the means to address that emergency,” Brett Shumate, a Justice Department lawyer, told the court. He added that the goal had been to “bring our trading partners to the table” and create political leverage for possible deal-making.

Reagan-appointed Judge Jane Restani was unimpressed.

“It may be a very dandy plan, but it has to meet the statute,” replied Senior Judge Jane A. Restani, who was nominated to the trade court by President Ronald Reagan.

As for Trump, he doesn’t seem to care much either way.

Donald J. Trump Truth Social 05.28.25 10:32 PM EST pic.twitter.com/7kDXpx7hsI

— Commentary Donald J. Trump Posts From Truth Social (@TrumpDailyPosts) May 29, 2025