California Files Lawsuit Against Trump's Tariffs

Today, the state of California filed a lawsuit challenging Donald Trump’s massive new tariffs. The complaint is available here. The arguments California makes are in many ways similar to those advanced in the case the Liberty Justice Center and I filed on Monday on behalf of five US businesses harmed by the tariffs.

Like us California argues that the International Emergency Economic Powers Act of 1977 (IEEPA) doesn’t authorize tariffs at all, and that Trump administration’s position runs afoul of the “major questions doctrine” and constitutional nondelegation rules. Interestingly, California’s complaint doesn’t use the terms “major questions” and “nondelegation,” both of which have negative connotations for some on the left. But they cite the relevant precedents and make the relevant points. Personally, I think the substance of the arguments matters more than terminology.

Our complaint, however, makes some additional points that the California one doesn’t cover, such as that the bilateral trade deficits that supposedly justify the “Liberation Day” tariffs are not an  “unusual and extraordinary threat” (which IEEPA says must be present to allow invocation of the law).

On the other hand, California’s suit goes beyond ours in challenging not only the “Liberation Day” tariffs (imposed on almost every country in the world), but also the earlier IEEPA tariffs imposed on Canada, Mexico, and China, justified by the supposed threat of fentanyl. I argued that these tariffs are also illegal in a February post where I first developed the idea of challenging IEEPA tariffs under the nondelegation and major questions doctrine.

California’s case is therefore broader than our case, or the other two lawsuits challenging Trump’s IEEPA tariffs: that brought by the New Civil Liberties Alliance (challenging tariffs against China), and one brought by members of the Blackfeet Nation Native American tribe (challenging tariffs against Canada).

One issue likely to come up in the California lawsuit is standing, which require plaintiffs who bring a case to have suffered a “particularized harm” caused by the action they are challenging.  Our clients have an obvious case for standing because they directly import goods subject to the tariffs, and therefore must pay those tariffs themselves. The California complaint indicates that the state government imports many goods from abroad. If they also directly have to pay tariffs, they can qualify for standing on the same basis as our clients. If not, they might still be able to get standing based on more indirect harms (e.g. – the state having to pay higher prices for goods purchased from contractors), or based on the “special solicitude” on standing extended to state governments in the Supreme Court’s ruling in Massachusetts v. EPA (2007).

But indirect harms are a more debatable basis for standing than direct ones (though I personally believe they should qualify). And in recent years, the Supreme Court has often essentially ignored “special solicitude” arguments.  Nonetheless, I hope and expect that California will get standing one way or another.

I have my differences with the California state government on various issues. But I supported their strong stance on immigration “sanctuary” issues during the first Trump Administration, and I am pleased to welcome them to this fight. People across the political spectrum – including the conservatives at the NCLA, liberals like the California state government, and libertarians like myself -  should be able to agree that the Trump IEEPA tariffs are both illegal and extremely harmful.

The post California Files Lawsuit Against Trump’s Tariffs appeared first on Reason.com.