- 5/21/2025
On "Forbes Newsroom," Ilya Somin, a legal scholar and attorney, discussed his and the Liberty Justice Center's lawsuit against the Trump Administration which aims to end the President's tariffs, as well as the recent hearing before the U.S. Court of International Trade.
Category
🗞
NewsTranscript
00:00Hi, everybody. I'm Brittany Lewis, a breaking news reporter here at Forbes.
00:07Joining me now is Ilya Soman, law professor at George Mason University.
00:11Professor Soman, thank you so much for joining me.
00:13Thank you for having me.
00:15You and I talked last month about the lawsuit you and the Liberty Justice Center filed against
00:20President Trump's tariffs. To start off the conversation, before we get into any updates
00:25on the case, if you could lay out the suit, exactly what it says and what your case is for us.
00:33Sure. So in April, President Trump started the largest trade war since the Great Depression
00:39by applying 10 percent tariffs to virtually every country in the world, plus some additional so-called
00:46reciprocal tariffs. And he's doing all of that under a 1977 statute known as the International
00:53Emergency Economic Powers Act. And there are a bunch of reasons why we and our clients argue that
01:00this is highly illegal. This is first of all, this is a statute which doesn't even mention the word
01:06tariff or any synonym like imposts or duties or the like. So we argue simply that this statute doesn't
01:13authorize tariffs at all. And no previous president has used it to impose any kind of tariffs, much less
01:20the biggest tariffs in many decades. Secondly, the statute says that you can only use the statute
01:30at all, whether for tariffs or anything else, if there is a national emergency. And we say there's
01:35no emergency here because an emergency is supposed to be some sort of unexpected crisis.
01:41The claimed emergency here is trade deficits. And trade deficits, as actually the government admits,
01:46have existed for decades. They're not a crisis. They're not an emergency. They're not even
01:51necessarily any kind of problem at all. Most economists will tell you that trade deficits are
01:56actually not actually a problem for the economy. That's the same. However, there is an emergency.
02:01In addition, the statute says that this emergency must be one that poses an unusual and extraordinary
02:09threat to America's economy or security. There's nothing unusual about trade deficits. They exist
02:15all the time. They're not extraordinary. They're perfectly normal. And they're not even a threat at
02:20all because deficits, trade deficits, generally speaking, are not harmful to the economy. Again,
02:27most economists will recognize that. You can readily see this from even a simple example, like
02:32I have to admit I have a trade deficit with my local supermarket. I buy things from all the time.
02:38They virtually never buy anything from me. I wish they would buy some copies of my books. If they're
02:42listening, please come and buy some of my books. But even if they don't, it's not an emergency. It's
02:47not a threat. It just simply represents that I value the things that I can buy there more than I value
02:52the money that I pay for it. And I prefer to buy from them to go through the effort of growing all my
02:57food myself. Similarly, there are things that we can buy from Canada or Europe or other countries
03:02countries where we value them more than the money we pay. And it makes sense for us to buy them from
03:07those producers and to try to produce everything ourselves, which would be wasteful and costly and
03:13create all sorts of other problems. In addition, let's say somehow there is an unusual extraordinary
03:19threat or that, you know, the president just has under the statute as he claims, you know,
03:27he claims a power to impose tariffs on virtually any country for virtually any reason. Then you have
03:34what the Supreme Court calls the major questions doctrine, which is the idea that if the executive
03:41claims the power to decide some major political or economic issue, then at the very least, Congress
03:50has to clearly delegate that to him. Here, it's very obvious there's no clear delegation of any kind.
03:56It's not even clear if tariffs are authorized at all. If not, it's not clear that there's any kind of
04:01emergency or extraordinary unusual threat. We actually think actually that it's clear that none of those
04:06things exist. But at the very least, it's uncertain. And that uncertainty says that are the major questions
04:11doctrine. The courts have to rule against the government. You might ask, is this a major question? I would say
04:19if anything is a major question, this surely is that what we have here is over the next decade,
04:27this will impose something like $2 billion of extra taxes on the American people. This makes everything
04:34else the Supreme Court has ever said is a major question seem small by comparison. The biggest thing
04:39up till now was President Biden's $400 billion student loan forgiveness, which I think the Supreme Court
04:46rightfully struck down a couple of years ago. But even that seems minor and relatively insignificant
04:51compared to this huge trade war, which is several times that size in its impact. Finally, let's say
04:59you set aside all those other issues. Then there is the constitutional non-delegation rule, which says
05:05that there actually be at least some limits to the amount of power that Congress can just delegate to
05:10the president. And if non-delegation imposes any constraints at all, it surely must constrain what
05:16Trump is doing here because he's essentially claiming the unilateral power to impose any tariffs
05:22of any size on any country for any reason for as long as he wants. Again, if that is not a non-delegation
05:29problem, I do not know what is. We finally have a technical legal argument based on the constitutional
05:35avoidance doctrine. The Supreme Court says that if an interpretation of a federal statute raises
05:41constitutional problems, then where at all possible, if there is a plausible interpretation
05:46that avoids those problems, the Supreme Court and lower courts should adopt an interpretation to avoid
05:51it. Here, if they were to ruin our favor on any of those previous four issues, they can avoid the
06:00non-delegation problem and don't have to address what would be the biggest delegation power grab by the
06:09executive, the biggest claim delegation since at least the Great Depression. So we have six different
06:16pathways to victory. All we ask is that the courts give us one or two. So yeah, you gave six different
06:23pathways. As you said there, you just need one to win here. The Court of International Trade heard arguments on
06:29the case earlier this month. Can you talk to us a little bit about the hearing? Yeah, so a number of
06:35issues were raised in the hearing. I think a big takeaway is that the judges are not comfortable with
06:41the president's claim to virtually unlimited power. And that same issue arose today in the hearing on a
06:50similar case filed by the state of Oregon and 11 other states. And today, Judge Rastani said that,
06:55you know, under the government's interpretation of this statute, there is no limit and any crazy
07:01thing, her words, not mine, would be permissible. I hope, I don't know for sure, obviously our arguments
07:08are not a perfect indication of what courts will do, but I hope she and the other two members of the
07:12panel will recognize, as they seem to, that that's an implication of the government's position. And that
07:19implication is unacceptable under the statute, under the major questions doctrine. And if necessary,
07:24if they reach that issue under non-delegation. I know that you don't have a crystal ball and
07:29there's no, you can't predict exactly where their heads are at, but based on what they were saying,
07:34based on the questions that the judges were raising, I mean, where do you think their heads
07:38are at right now? Because essentially, as you said, you have six pathways, but what your suit boils down
07:43to is that IEPA doesn't grant President Trump the ability to invoke tariffs and there's no national
07:49emergency trade deficits don't qualify as a national emergency. The DOJ argues that IEPA does
07:54give the president broad authority to invoke tariffs and that trade deficits are a national
07:59emergency. So what questions were the judges asking that indicated to you, hey, maybe they're on our
08:06side, maybe they're trying to poke holes in our argument? So I think it's, as you say, it's always
08:11dangerous to make definitive predictions based on oral argument. And I can't read the judges' minds or
08:17review anyone's minds other than my own, but I will say, you know, that oral argument plus the
08:23one today that just now concluded, they both suggest that the judges are not comfortable with
08:29this claim to unlimited power, that they think they should have at least some ability to review
08:35what qualifies as unusual and extraordinary. They also think that the major questions doctrine
08:40quite likely applies, and either of those are a way that we could win, and probably the state
08:46lawsuit could win as well, that that lawsuit is somewhat broader in its focus than ours, and it
08:51also attacks some tariffs that are not included in our lawsuit. So I think it seems to me likely,
08:58though not certain, that this court will not accept the administration's claim to unlimited power
09:04as to which of our six pathways is the one that they will accept. I honestly don't know, and obviously
09:10they won't have to rule on all of them necessarily. If they give us one and give the states one,
09:15then, you know, they don't even necessarily have to address all the others if they don't want to,
09:20but it seems to me if I had the guess, and, you know, this guess could easily be wrong,
09:25I think they clearly think that this trade deficit situation is not an extraordinary or unusual threat,
09:32and also they think, I believe, that the major questions doctrine likely applies, and that the statute,
09:39and if it does apply, we and the state should win. In response to government's claim, you know,
09:45that this is clear, today Judge Rastani said, well, you know, if it's not, if it's so clear,
09:49why are we having all these arguments about it? And it's certainly not clear to everyone,
09:54and it's very obvious at the very least that the authority that the president is claiming here,
10:00sweeping authority to impose whatever he wants, it's at the very least unclear that the statute grants this,
10:06though, again, we would contend that it's actually created. The statute doesn't give this authority,
10:10but at the very least, there's uncertainty here, and are the major questions doctrine,
10:15doubt uncertainty means that we should win.
10:17I want to talk about that national emergency just a little bit, because I've heard that comparison
10:25before, that I'm in a trade deficit essentially with my store because I'm buying goods from them,
10:30they've never bought anything from me, therefore I'm in a trade deficit with them,
10:34and that doesn't constitute a national emergency, that's the argument. When the DOJ said that trade
10:40deficits equal national emergency, I mean, what were the judges saying? Did they intimate that that
10:45could be a slippery slope? Yes, absolutely. So in last week's oral argument, Judge Ristani said,
10:54well, could the president say that a peanut butter shortage is a national emergency and then impose
10:58any tariffs he wants as a result? And she's right, you know, there is no limit. Today, she pointed out
11:04that under the government's position, you can do any crazy thing. Again, you know, her words, not mine.
11:11And that's true. I would merely say that her example of the peanut butter emergency, peanut butter
11:16shortage is actually more of a genuine problem, potentially at least, than the problem the
11:22government is actually citing here. And the trade deficits are not really a problem and emergency at
11:26all. As to peanut butter, there are at least a lot of people who really like peanut butter and they
11:31would feel bad and their diet, the quality of their diet would diminish perhaps if there was a peanut
11:36butter shortage. So while I don't think that would rise to a true emergency or an extraordinary and
11:42unusual threat to the American economy, it would at least be a real problem with trade deficits or not.
11:49And have these businesses that are part of this lawsuit, there's five businesses,
11:53have they suffered real tangible damages yet from these tariffs? Because the DOJ is saying essentially,
11:59hey, they haven't, you know, had any real loss yet from these tariffs.
12:04So they clearly have in our filings, you can read about how our clients, like many other businesses,
12:12they need to maintain ongoing relationships with suppliers, with customers and others. And those
12:20relationships are already being are already being disrupted. If the president can impose any tariffs he
12:27wants, anytime he wants, it's impossible to plan ahead for businesses and others. And it's impossible to
12:33maintain on those ongoing relationships. So our clients are already beginning to suffer losses.
12:38And obviously, those losses will continue and get much worse if these tariffs are allowed to stay in
12:46place. If you want to talk about the legal standard of irreparable harm, we're not required to show that
12:51irreparable harm has already occurred. The whole point of getting a remedy in court is to prevent future
12:57harm from occurring. And I think there's little doubt that these tariffs will impose enormous future harm,
13:02both on our clients, on numerous other businesses around the country, and greatly increased prices
13:08for American consumers of all sorts of goods. That's just basic economics 101.
13:14And as you noted earlier in the conversation, there are already a handful of other lawsuits
13:20against President Trump's tariffs. The Court of International Trade, the court that heard your case last
13:26week, just today, as you noted, heard the arguments of a dozen state attorneys general suing over
13:31Trump's tariffs. Does that bolster your case? Do you think, does that impact your case at all,
13:36that there are this slew of other lawsuits coming after President Trump's tariffs?
13:42I think it certainly helps. It shows that there is a wide range of different people in groups with
13:48different views, perspectives and interests who are harmed by these tariffs and want them struck down.
13:54Moreover, you know, the different cases raise, in some cases, somewhat different arguments and
14:00issues. And that gives courts, you know, a broader range of opportunities potentially to strike them
14:06down. You know, there's also a fundamental commonality between our case and all or most of the other ones,
14:13which is quite simply, you know, the president is claiming virtually unlimited power to impose tariffs,
14:18and that is wrong under the statute. And if the statute did grant that power, which we say it doesn't,
14:23but if it did, it would be unconstitutional. And that issue is common to virtually all these cases,
14:29with the possible exception of, you know, the Montana Blackfeet case, which we can talk about
14:35if you're interested. But that one is sort of unusual, because it's much narrower than the others.
14:41And since you and I have last talked in April, we've gotten two major trade developments. President
14:47Trump unveiled details of a framework of a deal between the United States and the UK, and the United
14:52States and China agreed to a temporary 90-day pause while they hash out the rest of their
14:57negotiations. Does that impact your lawsuit at all? Not to any significant extent. First,
15:04even with the deals with the UK and China, we still have record high tariffs, at least for the last 80
15:09or 90 years in virtually every other country in the world. And even with the UK and China,
15:14first of all, these deals still leave the tariffs at a much higher level than they were before
15:21Liberation Day. In the case of China, all tariffs are still at 30 percent against Chinese goods,
15:27which is much higher than before, and an insupportable level for many importers, including
15:31some of our clients. And even the reduction from the level of 145 percent that only lasts for 90 days
15:40with respect to United Kingdom, we still have 10 percent tariffs on all imports from United Kingdom.
15:46That compares to about 3.3 percent on average before Liberation Day. So these deals make a horrible
15:53situation, very slightly less horrible, but only slightly. And the president is still claiming and
15:59wielding this vast unreviewable power that he has no actual right to. And then my final question to you,
16:06as we noted earlier in the conversation, you don't have a crystal ball. You can't look into the future
16:11here. But what do you think is next for this lawsuit? Do you think it makes its way all the
16:16way up to the Supreme Court? And if so, does that concern you that there are the Supreme Court is
16:21more conservative leaning? There are more conservative justices. I mean, do you foresee it going that far?
16:28So it could go that far. The next step, most likely, after the Court of International Trade makes
16:33decision is that, you know, whoever loses will appeal to the U.S. Court of Appeals for the Federal
16:39Circuit, which is the Court of Appeals that reviews cases from the Court of International Trade. Whoever
16:46loses there could potentially try to appeal to the Supreme Court. The Supreme Court, of course,
16:51get to decide what cases are on its docket. We can't know for sure that they would get there.
16:55It's possible that our case for one of the other cases challenging the tariffs for all of them,
17:00perhaps, or more than one would get to the Supreme Court, given the importance of the issue. I can't
17:05be certain what they would do if it got to them. But I think, you know, we would have a strong case
17:11to present to them, including based on the jurisprudential principles that the conservative
17:16majority has itself advocated. Many of them are sticklers for statutory checks. The statutory
17:21checks simply does not give the president this vast unreviewable power that he claims. And in addition,
17:27the conservative court has expanded and elucidated the major questions doctrine that I mentioned
17:32earlier. If the major question doctrine is any meaningful validity, it surely applies here.
17:37And several of the conservative justices, such as Justice Gorsuch, for example, have said that they
17:43want to strengthen the non-delegation doctrine. But even a modest, relatively weak non-delegation
17:49doctrine that both conservative and liberal justices have accepted, it would bar, I think,
17:54the virtually unlimited claim to delegated authority that the government is making here.
17:59So obviously, I can't know for sure what the Supreme Court will do, or even if they would be
18:03interested in taking the case. But if they do take it, I think we have a strong argument based on the
18:08jurisprudential principles that members of the Supreme Court, conservative majority, and sometimes
18:13the liberal justices as well, have elucidated in previous cases.
18:16And if we see, and when we see, rather, developments in this case, I hope you come back on and fill
18:23us in. Professor Soman, thank you so much for joining me. You're welcome back anytime.
18:28Thank you. I'd be happy to talk.