Docket Report: Learning Resources v. Trump (tariffs case)

In the third blockbuster case of the term, the Court considers whether Trump had authority under to issue his trade and fentanyl-trafficking tariffs. This is a complex and very substantial case, both for our country’s politics/economics, and for our understanding of important legal doctrines. This post will be a thumbnail of the case—I plan a longer post on it later. Trump claimed authority under the International Emergency Economic Powers Act (IEEPA), part of a package of trade reforms that Congress passed in the 1970s. In relevant part, IEEPA gives the president authority to “regulate … importation [of] … any property in which any foreign country or a national thereof has any interest,” at times and to the extent that an emergency provision is met. That emergency provision says that the authority “may be exercised to deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States, if the President declares a national emergency with respect to such threat.” The trade authority, the provision continues, “may only be exercised to deal with an unusual and extraordinary threat with respect to which a national emergency has been declared for purposes of this chapter and may not be exercised for any other purpose.” The language of the statute is contested by the parties in several places, but the two key disputes concern whether tariffs/taxes fit within the meaning of “regulate … importation” and whether fentanyl and trade-deficits count as an “unusual and extraordinary threat” (that is, whether they constitute an emergency). The challengers observe that, where Congress wishes to give the power to tax or levy tariffs, it uses more explicit language, and that the 1970s package of trade reforms were generally meant to reign in the president’s trade authority. Regulate, in their view, includes the authority to quarantine, for instance, but not to impose taxes or tariffs. They also argue the claimed emergencies do not constitute an “unusual” or “extraordinary” threat to the country (though also nod to issues of limited reviewability). Beyond issues of “ordinary" statutory interpretation, the case implicates the new major questions doctrine, in addition to the non-delegation doctrine. The major questions doctrine, in sketch, says that Congress must clearly authorize delegated powers over important questions. So far, this doctrine has mostly operated against left-leaning agency actions and interpretations. Will it apply here? Even if that all goes through, so the Court determines the IEEPA authorizes the tariffs, they will need to consider the non-delegation doctrine, which maintains that Congress cannot delegate “legislative” authority to the executive. Without sufficient statutory guardrails on executive action—and emergency declarations likely unreviewable—there is an outside chance that the Court will find a violation of the non-delegation doctrine. The lower court held that IEEPA did not give Trump the authority to impose the tariffs. The case is of such a moment that, unlike most of the cases this term, there is a betting market for its outcome. As of this writing, the market thinks there is a 29 percent chance that the Court upholds the tariffs (so reverses the lower court). The model, which does not draw on prediction markets or case commentary, largely aligns with that prediction. It says there is a 33 percent chance of reversal. The most likely justices to vote to reverse are Kavanaugh, Thomas, and Alito, with all other justices predicted to vote to affirm with varying levels of certainty.