Discussing some overlooked aspects of Trump’s tariff defeat

• Court decision halting Trump’s tariff orders represents a major constraint on presidential overreach and reinforces congressional primacy in trade policy
• The political question doctrine does not prevent courts from deciding every case with a political overtone
• If the tariffs orders are unlawful as to these plaintiffs, they are unlawful as to all

On May 28, a three-judge panel of the U.S. Court of International Trade (CIT) ruled in favor of the challengers in two cases challenging some of President Donald Trump’s tariff orders. Those cases, decided together, tackled a foundational flaw in Trump’s tariff orders, specifically that he didn’t have legal authority for those orders. An appeals court stayed the CIT decision on May 29, pending an appeal, meaning the tariffs can stay in place for now.

Trump imposed certain tariffs, asserting authority under the International Emergency Economic Powers Act (IEEPA). The cases decided by the CIT order were V.O.S. Selections v. United States, filed by a group of small businesses, and Oregon v. United States, filed by a group of 12 states. The issues in both cases are similar. In short, the plaintiffs argued that the IEEPA did not give Trump authority to impose the tariffs and that, even if the IEEPA did give him statutory authority, that authorization would be unconstitutional.

The decision has received extensive coverage in news outlets and social media. A couple of the less-discussed aspects of the decision should not be overlooked. The first of these is the issue of whether the political question doctrine, under which certain types of controversies are considered nonjusticiable, applied to the tariff cases. Another is the relief ordered by the court — a permanent injunction.

Concerning the political questions doctrine

Arguing that the court could not ever question the President’s assertion that his IEEPA use “deals with an unusual and extraordinary threat,” a requirement of Section 1701 of the IEEPA, the government asserted “the political question doctrine.” As explained by the U.S. Supreme Court in Baker v. Carr (1962), a controversy is deemed nonjusticiable where there is “a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion.”

The political question doctrine does not keep courts out of every political case. In Baker, the Court warned, “it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance.”

The government argued the court could not review whether the tariff orders were permissible under Section 1701’s “deal with an unusual and extraordinary threat” standard. Government attorneys asserted “a profound lack of judicially discoverable and manageable standards for resolving the validity of the President’s threat assessment, and also the impossibility of deciding the question without an initial policy determination of a kind clearly for nonjudicial discretion.”

The three-judge panel described the government’s use of the political question doctrine as “misplaced” and explained the court can manage standards for Section 1701 just as it manages the standards for any other statutory enactment that constrains independent executive action.

The CIT decision quotes a 1986 U.S. Supreme Court decision: “Under the Constitution, one of the Judiciary’s characteristic roles is to interpret statutes, and we cannot shirk this responsibility merely because our decision may have significant political overtones.” The judges also mentioned a 2012 case that required an examination of textual, structural, and historical evidence regarding a statute, with the CIT judges quoting the Supreme Court’s blunt observation, “This is what courts do.”

This small section of the tariff court decision is important. The idea that courts cannot and should not decide some controversies is well established. That doesn’t mean they should shy away needlessly. Courts decide whether to leave a matter to the legislative or executive branch by applying established criteria developed over decades. Those factors balance the duty of the judiciary to interpret the law with the judiciary’s responsibility to stay in its lane.

Supporters of a president often lash out unfairly when legal challenges to executive action succeed. Courts are constrained by constitutional limits and prudential considerations. Among these are myriad standards, rules, statutes, and doctrines — including the political question doctrine. But none of these limits or considerations put a case beyond judicial review merely because the case has a political aspect to it.

Concerning a permanent injunction

Another area of the tariff case decision that bears some note is the relief: “The challenged Tariff Orders will be vacated and their operation permanently enjoined.”

Several headline-grabbing cases have drawn public attention to universal or nationwide injunctions. There is plenty to criticize about the use and abuse of universal injunctions. This tariff case differs from the scenarios in which the nation has seen the rise of the universal injunction trend.

At the last paragraph of the decision, the court explained that “there is no question here of narrowly tailored relief; if the challenged Tariff Orders are unlawful as to Plaintiffs, they are unlawful as to all.” This has a special and specific constitutional hook.

As the court quoted, the U.S. Constitution mandates that “All Duties, Imposts and Excises shall be uniform throughout the United States.” A tax is uniform when it operates with the same force and effect in every place where the subject of it is found, according to an 1884 case cited by the court.

The permanent injunction issued by the U.S. Court of International Trade on summary judgment differs from the universal injunctions in ways beyond the scope of this policy briefing. The point here is to emphasize the constitutional mandate for uniform taxation as the bedrock for a permanent injunction enjoining the challenged tariff orders.

Notably, this unanimous decision came from judges appointed by presidents from both parties, including one Trump appointee, a sign of broad judicial consensus on the constitutional issues involved. This ruling represents a major constraint on presidential overreach and reinforces congressional primacy in trade policy.

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