The Volokh Conspiracy
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Liberty Justice Center Files First Lawsuit Challenging Trump's Massive New Section 301 Tariffs
The complaint explains why the tariffs violate the requirements of Section 301, and also run afoul of the major questions and nondelegation doctrines.
Today, the Liberty Justice Center filed Burlap & Barrel, Inc. v. Greer, the first case challenging Donald Trump's massive new Section 301 tariffs. The complaint is available here. LJC is the same group that I worked with on V.O.S. Selections v. Trump, the IEEPA tariff case decided by the Supreme Court in February. LJC also filed one of the two cases challenging Trump's Section 122 tariffs, which prevailed in the US Court of International Trade in May (it is now on appeal).
The current case is before the US Court of International Trade. LJC's clients are two small businesses who import goods from many of the countries covered by the new tariffs.
I am not directly involved in the Section 301 case. But I completely support it, and commend LJC for getting it in so quickly. I know from personal experience how hard it can be to do this on short notice.
Commentators such as Peter Harrell, Scott Lincicome, Gregory Shaffer and Jeremiah May, and myself have previously laid out a variety of reasons why the Section 301 tariffs are illegal. I summarized them in my post yesterday. The LJC complaint makes many of these same points. To briefly summarize it argues:
1. The Section 301 tariffs violate many of the procedural and substantive requirements of the statute; Trump is trying to turn a law intended to target specific trade practices into a tool for waging a massive worldwide trade war against virtually all our trading partners, using "forced labor" as a pretext.
2. This runs afoul of the major questions doctrine (MQD), which requires Congress to "speak clearly" when authorizing the executive to make "decisions of vast economic and political significance." If it is unclear whether Section 301 grants Trump the sweeping authority he claims, MQD requires resolving the ambiguity against the administration.
3. If Section 301 somehow does grant Trump the authority he claims, the law is unconstitutional under the nondelegation doctrine, which limits delegation of congressional power (here, the tariff authority) to the executive.
4. The constitutional avoidance canon requires interpreting Section 301 to reject the administration's position. This canon requires courts to interpret federal laws to avoid constitutional problems whenever it is "fairly possible" to do so. Here, doing so is needed to avoid a massive nondelegation issue.
Not surprisingly, I agree with all four of these arguments, and I will likely have more to say about them later.
Another notable aspect of the lawsuit is that the plaintiffs are seeking class action certification. If it is granted, and they prevail on the merits, the ruling will completely block the Section 301 tariffs with respect to virtually all importers, not just LJC's two clients.
I think it likely there will be additional lawsuits challenging the Section 301 tariffs. I hope to write more about these issues soon.