The Lawsuits Challenging Trump’s Power to Issue Tariffs

Episode transcript:

Note: This transcript is generated from a recorded conversation and may contain errors or omissions. It has been edited for clarity but may not fully capture the original intent or context. For accurate interpretation, please refer to the original audio.

JOHN QUINN: This is John Quinn, and this is Law, disrupted. And today we’re going to be talking about what else? Tariffs. And to talk with us about tariffs as somebody who’s an expert on the subject, we’re gonna be speaking with Christopher Padilla, Chris Padilla, who is a senior advisor at the Brunswick Group, a strategic consulting firm, very well known strategic consulting firm.

In Washington DC Chris has a wealth of experience in the area, international trade and government. He served as the global government and regulatory affairs chief at IBM for about 15 years. He’s held various roles,  in the government, in the United States government, senior roles at the Department of Commerce.

He was twice appointed as Secretary of Commerce for International Trade and as Assistant Secretary of Commerce for export administration, he’s held roles as an assistant United States trade representative, a senior advisor at the Department of State, and is a member of the Congressional Executive Commission on China.

Other experience in private practice, he spent 15 years in marketing, business development, and international trade relations at both at AT&T and the Eastman Kodak Company. Chris, thanks so much for joining us here today. 

CHRIS PADILLA:Thank you for having me, John. 

JOHN QUINN: So this is a podcast that deals with legal issues at our firm, we’re litigators at our firm. We have a lot of interest in litigation and this whole tariff phenomenon, which is making headlines about its impact, arguable impact, and seeming impact on the economy. Clearly, the impact on international relations is now moving into the arena of the courtroom.

We have cases that are challenging the President’s authority to impose these tariffs on his own. Can you kind of give us a rundown, rundown of what the state of play is? What cases have been filed against the administration? Challenging the president’s ability to promulgate these tariffs. 

CHRIS PADILLA: Well, John, as you mentioned, the president has imposed, in the first hundred days in office, unprecedented levels of tariffs, some of the highest tariffs that we’ve seen in U.S. history since the 1900s.

As a result, we’ve had a number of lawsuits that have been filed in recent weeks by a number of different actors, challenging some of the authority of the president to impose these tariffs without a specific authorization from Congress.  There are seven lawsuits that have been filed so far challenging the president’s use of a law called the International Emergency Economic Powers Act, or IEEPA, a law that was passed in 1977, mostly has been used to impose sanctions and to freeze financial assets of U.S. enemies and adversaries. It has never before been used to impose tariffs. 

JOHN QUINN: Does that law even refer to tariffs? 

CHRIS PADILLA: No, the word tariff does not appear in the text of IEEPA. IEPA was a successor to a previous law called the Trading With the Enemy Act,  which was a World War I era law that had been passed to give President Wilson the power basically to freeze German assets and to seize German property in the United States. In 1977 the Congress passed a new law, IEEPA, which frankly curtailed some of the president’s authority under the Trading with the Enemy Act.

But President Trump has used it in an unprecedented way, declared an international emergency with regard to the trade deficit, as well as some other issues like migration at the border and the fentanyl crisis, and has imposed a very sweeping and universal tariffs, basically on all products from all countries and these lawsuits challenge his ability to do that.

They say that he is being overbroad in using IEEPA to impose these tariffs. 

JOHN QUINN: I know our state, I mean, I live in California and I know that our governor, Gavin Newsom, presumably on behalf of the state of California, I don’t know who the party is, is party to one of these cases. 

CHRIS PADILLA: That’s right. The state of California has filed a case,  another case was filed by the Attorney General of Oregon, on behalf of Oregon and 11 other states.

There’s a case that’s been filed on behalf of a Native American tribe in Montana. And then there are four other cases filed on behalf of a variety of small and medium sized businesses who say they’ve been harmed by the tariffs and those cases have been filed mostly by interestingly, conservative and libertarian litigation groups. 

One is called the Liberty and Justice Center. Some of these groups have ties to the Federalist Society and other organizations and their argument is that this is an unchecked and improper use of presidential power, that the Congress did not give the president the power to use the IEEPA for tariffs, and they’re arguing that there should be a preliminary injunction. 

JOHN QUINN: What courts are these cases pending in? Is there some special trade court that they have to be brought in or are they in the United States District Court or where? 

CHRIS PADILLA: They’re all over the place. Several of them are in district court. There are cases that were filed in district court in California, in the District of Columbia, in Florida. The Native American cases filed in Montana District Court, but several others are filed at something called the Court of International Trade, which is located in New York City. And as a special court, that falls under the jurisdiction of the court of appeals for the federal circuit that deals with customs revenue matters.

So the court of international Trade mostly deals with things like, anti-dumping cases and, and disputes over tariff classification but because some are arguing, this is a customs revenue matter, several cases are pending there.

JOHN QUINN: Court will have jurisdiction over this. Presumably the administration will challenge that. 

CHRIS PADILLA: The administration, I think, wants the case to be heard in the court of international trade. They, in fact, they’ve moved to consolidate all the cases into the CIT and I think the reason for that is that historically the Court of International Trade and the federal circuit where any appeals would go, have been pretty different from presidential authority to impose tariffs.

JOHN QUINN: Okay. I mean, sense prognostic based on these particular courts and their dockets and their history, which one might come to a judgment first or is it not possible to guess? 

CHRIS PADILLA: It’s hard to guess, but the one that seems to be moving most quickly is the one in the court of international trade. A three judge panel has been appointed, they’ve already considered a preliminary injunction and denied that request by the plaintiffs.

JOHN QUINN: It’s pretty newsworthy, but I didn’t see that. 

CHRIS PADILLA: Well,  the court of international trade doesn’t usually get a lot of attention. They’re gonna be in the spotlight on this one, I think and that case has been scheduled for initial argument on May 13th, so it’s coming up pretty soon.

JOHN QUINN: Will that actually be a merits argument or is that a scheduling or procedural argument? 

CHRIS PADILLA: I think at this point it’s a procedural argument. There’s some questions about the standing of the plaintiffs. The government is arguing that a number of the plaintiffs did not actually make imports during the specified period, and therefore they’ve not been harmed.

I’m sure we’re gonna have debates over jurisdiction and standing for the initial period before anybody gets even to the main substantive arguments? 

JOHN QUINN: Well, I mean, whichever case comes to judgment first. I mean, does it really matter which one or do they basically all raise the same arguments and the same issues?

So we’re gonna have a decision on issues which may be dispositive for all of them in the first one. 

CHRIS PADILLA: Yeah, they all basically do raise the same substantive issues. There are some slight differences of emphasis, but there are essentially four key arguments that all the cases make in common.

The first one is that IEEPA itself does not authorize the president to impose tariffs. The word tariff does not appear in the legislation and the argument is that this is an overbroad use and an overbroad reading of what Congress intended.  The second major argument is that this is a major question and that the major questions doctrine of the Supreme Court should apply.

JOHN QUINN: That’s the doctrine, quote, unquote, major questions. I know, I have heard of that. 

CHRIS PADILLA: Essentially, it’s a relatively recent doctrine in which the Supreme Court has held that Congress must speak clearly for the president to use a statute for exceptionally expansive purposes. And the way that people may have heard of this was the, the Supreme Court referred to the major questions doctrine in striking down, for example, the Biden administration’s use of the Clean Air Act to try to regulate greenhouse gas emissions. 

They also struck down the Biden administration’s forgiveness of student loans and the attempt by OSHA during the pandemic to require all businesses to do testing and vaccination. In each of those cases, the court said you can’t take a law that was written for a narrow purpose, and then broaden it out, you know, beyond to questions that Congress did not specifically and clearly speak about. 

And so the argument here is that IEEPA authorized things like, import embargoes in time of war, or major conflict or freezing of currency, assets of terrorists. It was not authorizing tariffs and using this law to impose some of the broadest tariffs in more than a hundred years of U.S. history, would violate the major questions doctrine in the same way that the court has held that Biden overused the Clean Air Act to try to regulate greenhouse gases.

I think the first and second arguments, the fact that the statute doesn’t mention tariffs and that you have this major questions doctrine, are probably the two strongest arguments that the plaintiffs have and all the cases make this as the first argument. 

JOHN QUINN: I mean, is there experience under IEEPA or previous cases or applications, which sheds any light, either supportive of the president’s action or supportive of the plaintiff’s opposition to that?

Is there anything in the application of that or the history that’ll have some bearing here? 

CHRIS PADILLA: There is, the government points out that the Supreme Court has upheld in the early 1980s, the use of IEEPA by the Reagan administration to impose some fairly significant trade embargoes. On the other hand, the plaintiff’s point to more recent jurisprudence when the Supreme Court ruled that President Trump in his first term, could not use IEEPA to ban TikTok in the United States. In fact, that’s why the Congress had to go back and pass a separate law to ban TikTok, because IEEPA was ruled as inapplicable by the Supreme Court.

The government is gonna rely very heavily, not on a Supreme Court case, but a federal circuit case,  from the late 1970s, that was brought when President Nixon used the predecessor statute, the Trading with the Enemy Act to put a 10% universal tariff on a temporary basis after the U.S. went off the gold standard.

And the purpose of that was to try to provide a temporary cushion for the economic shock. When the U.S. went off the gold standard and we were flooded with imports, Yoshida, the federal circuit held, that it was a proper use that the president could use the Trading With the Enemy Act to impose a tariff.

The government says, well, that’s directly on point here, the plaintiffs say, well, wait a minute, you know, that’s a different statute, so. 

JOHN QUINN: I’m talking to the court, but that was the previous statute. 

CHRIS PADILLA: It was the previous statute. It was not a Supreme Court precedent. It’s a federal circuit precedent.

But this is why the government wants the case in the court of international trade because they want the federal circuit ruling in that case to be controlling. 

JOHN QUINN: Right. I have read that there’s also an issue about whether this is what’s called an unconstitutional delegation. You know, even if the president were right, there’s a delegation here that is inappropriate.

CHRIS PADILLA: Yes, and that’s another key argument that the plaintiffs make. That, even if you find that the IEEPA gives the president authority to impose a tariff, IEEPA itself is a violation of the constitutional doctrine of non delegation. And the argument they make is, under the Constitution, Article One, section eight, it’s the Congress that has the sole authority to lay and collect taxes, duties, impulses, and excises, and to regulate commerce with foreign nations.

They argue that the only way that Congress can delegate that authority is if there is a so-called intelligible principle that guides the exercise of presidential powers, using that delegated authority. The argument is that in this law, IEEPA, there is no intelligible principle, it is so broad. And what President Trump has done here is so broad that you cannot argue that Congress had an intelligible principle in delegating that authority to the president. And so it’s improper. 

JOHN QUINN: Mr. President, if you’re right, then this is so broad that it violates the non delegation doctrine. 

CHRIS PADILLA: Yes, and even goes to violate the separation of powers. An interesting amicus brief was filed, again, by some conservative lawyers with roots in the Federalist Society, on behalf of the plaintiffs in the Court of International Trade.

And they said, look, this is about the fundamental question of separation of powers. Either the Constitution gave the Congress the power to lay tariffs or it didn’t. And while the Congress can delegate that authority under specified criteria, it can’t just give it away to the President for him to do whatever he wants.

The way that the president has imposed the tariffs in the first hundred days, frankly, has been, let’s just say not very structured. It’s been all over the map. The tariffs have been imposed, they’ve been paused, they’ve been removed, they’ve been changed. And the point is that it’s arbitrary on its face and should not be allowed under separation of powers.

JOHN QUINN: But the way the executive power has grown in practice so much over in recent decades, really, I mean, I don’t even know when was the last time that an interpretation or application of law was struck down on the non delegation basis. 

CHRIS PADILLA: There haven’t been many. I think there’s only been a couple that I’m aware of in the last couple of decades.

The history here is interesting. I mean, prior to 1930, Congress passed tariff bills that specified tariffs down to the line item. I mean, the legislation would say, here’s the tariff on clothing, here’s the tariff on porcelain, or what have you.  But what happened was, after the Smoot-Hawley Tariff Act of 1930 contributed to and probably deepened the Great Depression, Congress frankly just didn’t trust itself to continue passing tariff bills, and so they delegated that authority to President Roosevelt for the first time in 1934.

It gave him the ability to go out and negotiate trade agreements with other countries for the purpose of lowering those Smoot-Hawley tariffs. And, Roosevelt did that. He negotiated with his Secretary of State Cordell Hull negotiated about 20 trade agreements prior to World War II. And then what happened after that was, Congress over the decades began delegating more and more power to the president, frankly, because they thought that the president would use the tariff power more responsibility than the Congress would, that the president would use the power to lower tariffs rather than raise them. 

What had happened in a lot of tariff bills in Congress was people would make deals with each other, you know, if you agree to raise the tariff here, I’ll agree to raise it there. Let’s take care of the companies in our home states and it got outta control. And that was why Congress kept delegating this authority and it worked, until President Trump’s first term in 2017, when he decided to use that delegated authority to raise tariffs rather than lower them.

JOHN QUINN: Interesting. So it was originally intended to give some Authority that the history is that it’s to lower tariffs? 

CHRIS PADILLA: Exactly. Congress didn’t trust itself and thought the President would do a more responsible job. And now you’ve got a situation where I think Congress feels like maybe they want to try to take some of this authority back, and there’ve been bills introduced just in this Congress,  bipartisan ones, that would take back some of the president’s authority to impose tariffs.

They would require, obviously, a veto proof majority, and that’s not likely, at least for a couple of years. 

JOHN QUINN: Well, I mean, IEEPA is by its name, it’s an International Emergency Economic Powers Act. It would seem to presuppose the existence of an emergency. And you began by saying, well, the president has said there is an emergency to payments.

I heard you say immigration, and other things which one would think don’t really have anything to do with tariffs. So what really is the, what’s the emergency here? And is there an argument here about even if this applies, there’s no emergency? 

CHRIS PADILLA: Yes. And that’s the final key argument that the plaintiffs are making.

They say, you know, IEEPA requires there to be an emergency, and this is a bogus emergency. And in fact, the president has declared multiple emergencies. The initial tariffs that he imposed when he came into office against Canada and Mexico, the emergency he declared were over migration, at both the northern and southern borders and the fentanyl crisis.

JOHN QUINN: On this, I’m not tracking what tariffs have to do with either of those issues. 

CHRIS PADILLA: Well, not a lot frankly, but the president’s view was that they would provide leverage, that he would impose those tariffs as a punishment to force Canada and Mexico to do what he wanted them to do to interdict, fentanyl, crossing the border, and to, and to interdict migration. It’s an unprecedented use. 

Again, this a lot is unprecedented in these cases, it’s an unprecedented use. IEEPA’s never been used that way, either to impose a tariff or to deal with something like migration or drug crisis. The most recent tariffs that were announced in April on what the president called Liberation Day, the emergency, there was the trade deficit, and he just simply declared that as an emergency.

So what the plaintiffs are saying is, you know, you’ve got all these bogus emergencies. The president’s just declaring them because he wants to, and then he’s imposing whatever tariff he feels like imposing. And their argument is that this is, again, shows that IEEPA is being used improperly.

JOHN QUINN: Well, I guess the statute does contemplate that the president could decide what’s an emergency. It does, it does. And spell out an emergency such as X, Y, Z. 

CHRIS PADILLA: No, the Congress didn’t give guidance as to what an emergency was. It gave the President pretty broad authority and in fact, courts have traditionally been pretty deferential to presidents on issues around foreign affairs and national security and on trade and tariffs, and I think the Justice Department is counting on that deference to continue, that you know who, what, who’s a court to say,  that there is or isn’t an emergency, and courts probably don’t want to get in the business of making a judgment about whether fentanyl really is an emergency that justifies tariffs or not. 

If these if the plaintiffs win in these cases, my guess is that they’re gonna win in the first two arguments. The fact that IEEPA doesn’t mention tariffs and that this is a major question, those are probably their strongest arguments. The non delegation argument, as you pointed out, John, I mean, there haven’t been many cases where courts have found in favor of that particular argument. And this last argument about is this an emergency or not? Would that require a court to get into areas that they’ve been predictably reluctant to get into? 

JOHN QUINN: Yeah. Right. So what’s next? You’ve told us that, I mean, has there been a motion to have cases consolidated before? Has that been granted or decided?

CHRIS PADILLA: I think a number of the plaintiffs, particularly the attorneys general, are fighting that they want the cases to stay in district court. We will have, I’m sure, some arguments overstanding. There’s a real question as you know, you asked with the governor of California filing a case. I mean, what’s his standing to file a case on tariffs?

How has the state of California been damaged? They don’t pay tariffs. Private importers pay tariffs. So there will be a standing issue there, I think with the cases filed by the states. The standing will probably be easier for some of the small businesses who’ve made the case and, you know, they’ve demonstrated or can probably demonstrate that their businesses will be harmed.

JOHN QUINN: Well, what’s likely to happen? What’s next? 

CHRIS PADILLA: Well, it’s an interesting situation because I think that the, this is a classic situation where you’ve got a number of cases that present some pretty important legal issues around separation of powers, around the major questions, doctrine around, you know, overreading statutes.

But what I tell clients is that from a practical point of view, if what you’re worried about or what you’re hoping for is that the tariffs will be removed as a result of these cases, I say don’t hold your breath. 

JOHN QUINN: Really? 

CHRIS PADILLA: Yeah. And, they don’t like to hear that, but the reason I say that is that even if plaintiffs prevail, let’s say this goes to the Supreme Court, as it very well may, the president has multiple other statutes that he could use to impose the very same tariffs or very similar tariffs, but he would have to jump through more procedural hoops. There are five or six other statutes that have been passed. 

We were talking about how the Congress has delegated authority to the president over the years, there are many statutes that have been used to impose tariffs. In fact, President Trump used them during his first term, but they require things like consulting with industry, consulting with Congress, doing an investigation, documenting your findings. Administrative Procedure Act rules would apply.

So it would slow them. The process went down for sure. It might make it more difficult for the president to do his universal tariff, on everyone and everything,  at the same time, but it wouldn’t stop him. And so, I think that while the plaintiffs certainly hope to prevail and I think they have some strong arguments,  I don’t think this is gonna result in President Trump’s tariff policy being reversed.

JOHN QUINN: Fascinating. Fascinating. Well, thanks so much. I think this gives us a really good picture of these lawsuits that have been filed, challenging the tariffs. My takeaway from this is I wouldn’t bet on this trade court in New York ruling that the president doesn’t have this power.

But you’re telling me even if he does, he’s got some other statutes he can turn to issue the same tariffs?

CHRIS PADILLA: Yes, it would take ’em a little bit longer and there would be more chance for industries and Congress to have input. But, fundamentally, if what people wanna see is these tariffs removed, I don’t think it’s gonna happen because the courts intervene.

They may put up some speed bumps and roadblocks, but fundamentally, unless the Congress takes back this power, and again, I don’t think that’s likely to happen in the next couple years, the thing that’s gonna change the mind on tariffs is probably the economic effect if we have a recession or stagnation as a result of these tariffs, or if there’s a bond market collapse because people lose confidence in the United States.

That might cause the president to change course. But the lesson here, I think, is when Congress makes a delegation of authority as they did 50 years ago, it’s pretty hard to envision how a president will use it 50 years later, and it might be in a very different way than they intended.

And, I do think that in future congresses we’re gonna see an effort to amend these laws. 

JOHN QUINN: Thank you very much, Chris.

CHRIS PADILLA:. Thank you, John. It’s been a pleasure. 

JOHN QUINN: We’ve been talking with Chris Padilla of the Brunswick Group, a strategic consulting firm. He’s based in the Washington DC office. We’ve been talking about tariffs and the pending lawsuits, challenging the tariffs that the president has issued.

This is John Quinn. This has been Law, disrupted.

Thank you for listening to Law, disrupted with me, John Quinn. If you enjoyed the show, please subscribe and leave a rating and review on your chosen podcast app to stay up to date with the latest episodes. You can sign up for email alerts at our website, law-disrupted fm, or follow me on X at JB Q Law or at Quinn Emanuel. Thank you for tuning in.

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Published: Nov 13 2025