Attorney Behind Lawsuit To End Trump's Tariffs Reveals What's Next After Court Rules Against Trump

Forbes Breaking News

On "Forbes Newsroom," Ilya Somin, a legal scholar and attorney, discussed his and the Liberty Justice Center's lawsuit against the Trump Administration, which argues the tariffs invoked using IEEPA are illegal, as well as the recent ruling from the U.S. Court of Appeals for the Federal Circuit, which found most of the levies are illegal.

Transcript

00:00Hi, everybody. I'm Brittany Lewis, a breaking news reporter here at Forbes. Joining me now

00:07is Ilya Soman, law professor at George Mason University. Professor Soman, thank you so much

00:12for joining me. Thank you for having me. Professor Soman, I'm grateful for you coming on because you

00:17have joined me a few times in the past couple of months to talk about the lawsuit that you

00:22and the Liberty Justice Center filed against President Trump's Liberation Day tariffs.

00:27And this just celebrated another legal win, this time in an appeals court. In a 7-4 ruling,

00:33the U.S. Court of Appeals for the Federal Circuit said that President Trump overstepped his

00:38presidential authority by invoking the International Emergency Economic Powers Act to impose tariffs.

00:44So to start off the conversation, what's your reaction to the ruling? Well, of course, we're

00:48very happy that the court ruled the way it did and recognized that this was an illegal user patient

00:55of congressional power and not something that the president can do on his own. The Constitution

01:00gives the power to impose tariffs and other taxes to Congress, not to the president. And I think the

01:07court rightly concluded here that he simply can't impose these massive tariffs without far more in

01:15the way of clear congressional authorization. I want to talk about what exactly that ruling said,

01:21because the ruling said imposing tariff policy is, quote, vested exclusively in the legislative branch

01:27and a, quote, core congressional power. The dissenting judges, however, wrote this, quote,

01:33IEPA's authorization of presidential action in this realm is not an unconstitutional delegation

01:39of legislative authority under the Supreme Court's decisions, which have upheld broad grants of

01:44authority, including tariffing authority in this foreign affairs related area. What do you make

01:50of what the dissenting judges wrote? Because this was a 7-4 ruling. Yeah, so obviously, it's no surprise

01:58that I might disagree with some things that the dissenting judges wrote. But basically, it comes down to

02:04this, that under the president's interpretation of this law, he would have virtually unlimited power

02:11to impose any tariffs he wants at any time for any reason in any amount for as long as he wants.

02:17And if anything is an unconstitutional delegation of legislative power to Congress, then it's something

02:24like this, a virtually unlimited delegation of what the majority rightly said is a core congressional power.

02:30Moreover, this is a law that doesn't even mention the word tariffs or a synonym like

02:37impose or duties. It just says that under the SWAT, there is sometimes a power to, quote, unquote,

02:44regulate certain kinds of international transactions. As a majority explains, regulation and taxation

02:50are two distinct powers historically. And we cannot assume that the word regulate, impose,

02:57includes a power to tax, and certainly not one that is on this gigantic scale, where you would have

03:05the highest tariffs since those that helped deepen and cause the Great Depression.

03:12That's what the judges who ruled in your favor said, that the word tariffs or even a synonym of

03:17the word tariffs is not mentioned anywhere in IEBA. And you represent in the lawsuit, five small

03:23businesses who would be impacted by tariffs. So A, what has their reaction been to this ruling? And B,

03:30how have they been impacted by tariffs so far? So like with a lot of small businesses and other

03:36businesses throughout the United States, obviously, the impact has been very painful and difficult.

03:41Many American businesses get goods from abroad that they need to do their work, inputs for production

03:48goods and so forth, which are often either just not available in the United States or only available

03:54at much higher cost or lower quality. So these tariffs, if allowed to stay in place, would be very

03:59damaging to the American economy, to businesses and also to consumers who end up having to pay higher

04:05prices. President Trump, it's probably no surprise to you, was not happy with this ruling. I want to

04:13read something that he posted in part on Truth Social. Quote, the USA will no longer tolerate enormous

04:19trade deficits and unfair tariffs and non-tariff trade barriers imposed by other countries, friend or foe,

04:25that undermine our manufacturers, farmers and everyone else. If allowed to stand, this decision

04:31would literally destroy the United States of America. At the start of this Labor Day weekend,

04:35we should all remember that tariffs are the best tool to help our workers and support companies that

04:40produce great made in America products. What do you make of his reaction there?

04:46Well, I guess I could make the obvious point that the United States very much existed before these

04:51tariffs were put in place and would certainly continue to exist without them. Moreover,

04:56the United States would be better off without them because economists estimate that if these

05:01tariffs remain in place, they would greatly reduce economic growth, raise prices for consumers and

05:07reduce incomes for far more workers than they might help. That's actually just fairly basic economics 101.

05:13And this ruling does not go into effect until October 14th. And President Trump himself has indicated that

05:21he's taking this to the Supreme Court. How are you gearing up for that fight?

05:26So obviously, if the case does go to the Supreme Court, we don't yet know for sure whether it will or not.

05:32But if it does, we will be prepared to defend our cause as we have so far.

05:37Are you concerned, though, about that Supreme Court fight? Because President Trump nominated three of those

05:43justices that now serve on the court, and it's a conservative-leaning court.

05:48So obviously, I can't know for sure what the Supreme Court justices might do. All I will say is that

05:54many of our arguments rely on doctrines that have been pioneered and defended by

05:59conservative Supreme Court justices as much as liberal ones. We've talked about the principle of

06:05non-delegation before, limits on the extent to which Congress can delegate executive powers to

06:10the president. If anything violates that, it's a virtually unlimited delegation of the kind that's

06:15being claimed here. And similarly, the Federal Circuit based this decision in part on the major

06:22questions doctrine, which says that if the executive is claiming that a power has been delegated to them,

06:29which enables them to decide large-scale social or economic issues, then at the very least,

06:35there has to be a clear delegation as opposed to something that's ambiguous. And here, it's

06:41difficult to think of a more major question than this one, when we're talking about trillions of

06:46dollars in new taxes imposed on the American people, massive damage to the economy, and so far.

06:52So again, I can't know whether the Supreme Court will take the case or what they will do if they were

06:57to take it. But I think we have very compelling arguments that can appeal to conservative and liberal

07:03jurisprudence. And as of now, these tariffs are in effect, like we said, until about mid-October.

07:12What do you think this fight, this legal challenge and your legal win so far means for President

07:18Trump's tariff policy overall? So we'll see. Obviously, we'll see if the case goes to the

07:25Supreme Court and what it decides. But we hope if we continue to win that these tariffs will be removed

07:31and they could only be put back in place if Congress were to enact them, which is the branch of

07:36government that is supposed to have the power over these sorts of issues.

07:41And since President Trump's tariffs took place in April, the United States brought in around $96

07:46billion worth of revenue from these tariffs. If this ruling is upheld, where does all that money go?

07:53Is it disseminated back to these businesses? What does that really look like?

07:56So there might be a complicated process at that point. And I admit, I'm not fully expert in how

08:03that process works. I'm on the case because of my expertise in certain constitutional law issues

08:08and related questions. But my understanding would be that if the courts continue to hold that these

08:14tariffs are illegal, then sooner or later, the tariffs that were previously paid and collected

08:20illegally would have to be repaid and given back to those who paid them.

08:24And what's next for this lawsuit? What are the next steps here? Because I know that

08:29you could be potentially gearing up for a Supreme Court fight. But what are you specifically doing

08:34next? So at this point, I'm not doing much of anything other than waiting to see if the

08:41administration does indeed ask the Supreme Court to take the case and then whether the Supreme Court

08:47will in fact take it. If they do, then of course, we will be ready to defend our case.

08:52And I know from someone with a perspective, a legal perspective, someone who's an expert

08:59on the Constitution, especially in this realm, what do you think about President Trump's trade

09:05policy then from that lens? If this is upheld, does his entire trade policy unravel? I mean,

09:12what's really left of that?

09:14So that's more a question for him than perhaps for me. But obviously, the implication would be that

09:22if you want to impose massive new tariffs and taxes, you have to go to the branch of government,

09:27which has the power to do that, which is Congress. You can't just do it on one person's whim.

09:33Well, there's certainly a lot to look out for, Professor Soman. I appreciate you coming on and

09:38breaking it down with me. Thank you so much for joining me. And when or if we see this reach the

09:44Supreme Court, I hope you can come back on and discuss it then. Thank you for your time.

09:49Thank you so much.

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