American Airlines stock fell below its lowest level from the depths of the pandemic during trading today. The economy is teetering on recession. $6 trillion in wealth was wiped out by the announcement of sweeping tariffs this week.

Yet, somehow, the CEO of United Airlines is supportive of the effort – even though it’s going to wipe passenger and cargo demand from his airline, and disrupt aircraft supply chains.

Fortunately, the courts could save us – if only they acted quickly enough. The first lawsuit (Simplified vs. Trump) has been filed against the President’s tariff authority under the 1977 International Emergency Economic Powers Act by the New Civil Liberties Alliance.

The complaint emphasizes that the International Emergency Economic Powers Act nowhere explicitly mentions tariffs or any authority to tax American imports. IEEPA has been used in the past for asset freezes, sanctions, and embargoes against foreign actors (terrorists, hostile regimes)—not for imposing a broad tax on domestic companies that import goods.

Because tariffs are a “major question” of both “vast economic and political significance,” the plaintiffs argue that the President would need a clear, explicit delegation from Congress which is not found in the statute.

Under IEEPA, any presidential action must be “necessary” to address the specific “unusual and extraordinary threat” the President has declared. Here they’re challenging tariffs on China imposed in February under the bizarre claim that these are necessary to fight fentanyl and opioids coming into the United States. However there is no logical nexus between an across-the-board tariff on Chinese imports and curbing opioid smuggling. (Indeed, the tariff applies to items brought into the country legally.)

The real reason for the tariffs – in the President’s own telling – is trade deficits and revenue. But the exclusive power to levy taxes and regulate foreign commerce lays with Congress under Article I, Section 8 of the constitution. Transferring a part of that power to the executive must entail an “intelligible principle” that constrains how the president can exercise it.

• The lawsuit argues that if IEEPA were read to permit unilateral tariff-setting in the name of an “emergency,” then that reading would violate the nondelegation doctrine because it effectively gives the President open-ended power over foreign commerce.

• Further, Congress has already enacted Section 301 of the Trade Act of 1974 and Section 232 of the Trade Expansion Act governing how and when presidents can impose duties. These lay out procedural requirements (investigations, public hearings, findings, etc.) that haven’t taken place, so the President is not only exceeding authorities granted by Congress he’s short-circuiting limits placed on his own authority.

• The tariff power is granted to Congress and not to the President, and Supreme Court precedent is clear that the executive can only impose tariffs where Congress has explicitly permitted it.

  That [C]ongress cannot delegate legislative power to the president is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the [C]onstitution.”
  — Marshall Field & Co. v. Clark, 143 U.S. 649, 692 (1892)

The plaintiff in this case claims standing from direct economic harm caused by raising the cost of importing goods from China, which reduces their profits.

Since IEEPA has never before been interpreted or used to impose universal tariffs, and no president in its nearly 50-year history has attempted it, there’s a strong case that the statutory basis behind the tariffs is flawed.

And the Supreme Court has been especially skeptical of claims of “vast” new executive powers in old statutes unless Congress spoke with unmistakable clarity. The lawsuit’s reliance on the major questions doctrine is a direct way to argue that “IEEPA plainly doesn’t allow new forms of taxation.”

IEEPA does authorize the president to “regulate … transactions” involving foreign countries when an emergency is declared. The administration may argue that “regulate … transactions” or “import restrictions” is broad enough to encompass something functionally akin to a tariff. So the plaintiffs will have to show that a “tax/duty” is different. That shouldn’t be hard, since there are specific procedures for tariffs outlined by Congress which weren’t followed here either, and legislative language clearly refers to tariffs when those are included (and no one ever thought they were included in this status for 50 years until this administration now).

Getting a Court to enjoin the President – prior to reaching the Supreme Court – may be difficult. The legal merits of this case seem strong but that doesn’t mean it’s a silver bullet to end the current crisis. However, the New Civil Liberties Alliance successfully drove the Loper Bright case which struck down Chevron deference last year – so they’re serious.

That said, this suit is against the President’s exercise of questionable tariff authority from February and the sweeping tariffs announced this week are far more vulnerable to challenge – they are a much bigger “major question” that the Supreme Court will have a harder time backing away from given recent decision-making around Congress’ role in decisions of this size and scope.

And there are other areas of attack that will come up in challenges to these broader tariffs. The statute the administration is relying upon requires an “unusual and extraordinary threat” and an actual declaration of a national emergency (where it is hard to justify a national emergency in any case).