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, and laid out a timeline of when a preliminary injunction, if granted by a judge, might block them.
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00:00Hi, everybody. I'm Bernie Lewis, a breaking news reporter here at Forbes. Joining me now is Ilya
00:08Sohman, professor of law at George Mason University. Professor, thank you so much for joining me.
00:12Thank you so much for having me. President Trump has been publicly pro-tariff since before he was
00:19president, all the way back to at least the 1980s. He's been saying the United States has been getting
00:24ripped off by other countries for years now, and even on the campaign trail leading up to
00:28a second term, he promised tariffs. So it should really come as no surprise that on April 2nd,
00:34he unveiled what he called Liberation Day, his sweeping tariff policy. You and the Liberty
00:39Justice Center filed a lawsuit against these tariffs. So to start off the conversation,
00:43can you lay out your case? Yeah, our case is very simple. The president has usurped the powers of
00:50Congress on a massive gargantuan scale. What he's doing is illegal and unconstitutional,
00:55and also hugely damaging to United States and world economies. So we intend to ask the courts to stop
01:04it as we have done in the lawsuit that we filed on Monday. So you're really not mincing words here.
01:09You're saying what he's done with these tariffs is unconstitutional. He invoked the International
01:14Emergency Economic Powers Act of 1977 as a reason to impose these tariffs. And you're saying that's not
01:22right. Can you explain that case a little bit? Yeah, our case is very simple. This law,
01:28known as IEPA for short, doesn't even mention tariffs. Therefore, the power to impose tariffs
01:33simply is not one of the powers that is granted by that law. Even if hypothetically it was granted,
01:39there are still multiple other problems with the president's position. One is that that law can only be
01:45invoked when there is a national emergency. There is no emergency over bilateral trade deficits because
01:51an emergency by its nature is a sudden unexpected crisis. These kinds of bilateral trade deficits
01:57with various countries by the administration's own admission have existed for decades. They're not an
02:02emergency. They're not even a crisis at all or a problem at all because there's nothing wrong with
02:07having a situation where we buy more goods from another country than they buy from us anymore than
02:12there's some kind of problem in my life. If I have a trade deficit with my local supermarket,
02:17because they virtually never buy anything that I produce, whereas I buy a lot of things from them.
02:23But it's not a problem. In addition, even if hypothetically we agree that there is an emergency
02:28still, according to the law, that emergency has to involve an extraordinary and unusual threat from
02:35abroad to U.S. economy or security. There's nothing extraordinary or unusual about bilateral trade
02:41deficits. They happen all the time and they're not a threat at all because they're not actually harmful to
02:46the economy. There's nothing actually wrong with them. There's economists across the political
02:50spectrum who will say that, some of whom are likely to file a brief supporting our case. So that's
02:57another level on which there's no authorization for this. And in addition, the Supreme Court has said in
03:03several decisions in recent years that when the executive claims the power to decide a major question that
03:11is a major economic or political or social issue, they can only do that if Congress has clearly
03:17delegated the power to them. And here there's just no such clear delegation whatsoever. It's not clear
03:23there's even ambiguous delegation here. And obviously there's also no question that what's going on here
03:30is a major question. We're talking about the biggest tax increase in Americans in several decades,
03:36the biggest trade war since the Great Depression, imposing tariffs massively on almost every country
03:42in the world. So if this is not a major question, I do not know what is. And then finally, assume somehow
03:49the statute does authorize what the president is doing. In that event, it would be unconstitutional
03:55because there's limits to how much legislative power Congress can delegate to the president. And
04:03the power to set tariffs and trade policy is specifically enumerated as a congressional power
04:09in Article One of the Constitution. Admittedly, the Supreme Court's precedent on exactly what are the
04:15limits of delegation are somewhat fuzzy. But if this is not an excessive delegation, I do not know what is,
04:21because essentially, if the president's position is correct, then what he's claiming is that he can use
04:27IEPA to impose tariffs on any country in any amount at any time for almost any reason he wants. If that is
04:34not an unconstitutional delegation of legislative power, then nothing is.
04:39You laid out quite a few arguments there. It sounds like you think this is an open and shut case. So I do want to
04:45discuss the timeline because April 2nd, that's when Liberation Day was, as President Trump described it.
04:50He unveiled his tariff plan. April 9th, he largely paused the reciprocal tariffs. There's still that
04:57baseline 10% on most nations. And he has since ratcheted up the trade war with China. You filed the
05:05lawsuit earlier this week. So can you discuss where that lawsuit is now and what are the next steps?
05:11The lawsuit is before the Court of International Trade. Within the next few days, we will file a motion
05:18for remedies. We are going to most likely seek a preliminary injunction, which would prevent the
05:23tariffs from being implemented while the case continues. We might also file for a temporary
05:28restraining order, which would impose that constraint even faster. It obviously will be up to the court
05:34to determine whether they do that or not. We think as a matter of text and history and the meaning of the
05:40Constitution, we have an open and shut case. It's very strong. Obviously, you know, they might be
05:45able to sort of try to get the courts to ignore the text and say, well, you should defer to the
05:50executive anyway. But we hope to persuade the court that that would be a very dangerous path.
05:55Now, it would be enormous and harmful concentration of power. It is totally at odds with the text of the
06:01constitution and of the law and would create lots of practical problems, such as that one
06:07man could start a trade war with any country at any time, whatever he feels like, which is totally
06:12contrary to what the founding fathers wanted in a separation of power system and also would be
06:18extremely dangerous to the US and world economies. So it's possible that if we're successful, we would
06:25be able to get a judicial ruling that would block implementation of these tariffs quickly.
06:30But it's also possible that there will be many months before there is a, you know, a complete
06:34resolution to the case. I won't lie to you about that. Let's talk about that a little more because
06:40at Forbes, we've talked to small businesses that these tariffs will impact and the impacts will
06:44be devastating. You're representing a couple of companies where they're saying these tariffs will
06:49absolutely devastate our business. If you file the preliminary five, yes, if you file the preliminary
06:56injunction to, would that immediately stop the tariffs? What does the timeline look there?
07:00When would that take effect?
07:03A lot depends on the discretion of the court. So people listening, I cannot promise you that
07:08we're going to get you immediate relief tomorrow. We would like to do it as fast as possible,
07:12but obviously it's in the hands of the court rather in my hands or that of our clients.
07:17But we will seek a preliminary injunction and possibly a temporary restraining order. If we are
07:23successful, one or both could be issued within the next few weeks, even, or even sooner than that.
07:29But obviously we can't be certain ahead of time that we will be. Also, there might be a question
07:34about sort of what's the scope of the injunction. We would seek a so-called nationwide injunction
07:39that would shut down the entire system of Liberation Day tariffs. But it's possible that a court could
07:45decide to grant a more limited injunction that's more focused on particular industries or trade
07:51with particular countries and the like. We think we have good reasons why the injunction should be
07:55universal in scope and not just limited in that way. But courts do have considerable discretion
08:02in how they grant injunctions and what their scope is. The tariff rates are at the highest we've seen
08:08them since pre-Great Depression. As you stated, you're representing five businesses that are greatly
08:14impacted by these tariffs. How are the tariffs impacting them specifically? Can you tell us that?
08:19So these are businesses in various different sectors of the economy, ranging from wine imports to
08:26fishing equipment and other what matters. This was explained at the Liberty Justice Center website
08:31in more detail. But the basic story is that all of them import various products or components
08:38from abroad that either cannot be acquired in the United States or can only be acquired at much greater
08:43cost. And also, in some cases, the products are unique, as in the case of our wine client who
08:51imports wine from, I think, five different continents around the world.
08:55I'm no wine expert myself. I'm not much of a connoisseur, I have to admit. But people who do
09:02appreciate and understand fine wine, they know that there's distinctive taste that come from particular
09:07wineries that simply can't be replicated by a substitute. So they would suffer great harm.
09:14And there are similar stories for other clients with respect to the products or inputs that they import.
09:21And if you look at firms around the country in a vast range of different industries,
09:27you will see similar stories that there's a reason why we import these products that has to do with
09:32price, quality and other matters. And if we block their importation or make it extremely costly with
09:39tariffs, we're all going to be poor. We're going to be paying more for the products that we consume.
09:44We're going to have less variety and choice. And many American jobs will also be threatened because
09:49many Americans like the employees of some of our clients work for businesses that depend on imports
09:56for the things that they produce. I've spoken with economists, other small businesses.
10:03And while the White House is saying that these tariffs are to help Main Street now, it's Main
10:07Streets turn, not Wall Streets. These small businesses are saying that's really not the case.
10:12But I want to read something from the White House. White House spokesman,
10:15Harrison Fields said this in a statement to CNN. Never Trump Trumpers will always oppose him.
10:20But President Trump is standing up for Main Street by putting an end to our trading partners,
10:25especially China, exploiting the US. His plan levels the playing field for businesses and workers
10:30to address our country's national emergency of chronic trade deficits. What do you what do you make of that
10:36reaction?
10:40Ask economists across the political spectrum, left right here, they will tell you the same thing.
10:44You're not helping Main Street by making them poor, by raising their prices of their goods and so forth.
10:51And also by in many cases costing them their jobs and harming them in all sorts of other ways. And
10:57that's not even to mention the retaliation that other countries are going to impose against our exports
11:03that will still further damage Main Street. One of the things that experts and economists across
11:09the political spectrum agree on is that free trade is beneficial and protectionism with perhaps
11:14extremely rare exceptions is harmful. And I will add, if all of this is about China, then why is he
11:19tariffing the other 179 nations that are on this tariff list, including ones that impose no tariffs at
11:25all on the United States, such as Switzerland and Israel? If I'm an ever Trumper, it is for good reason.
11:31It is because he has a history of cruel and unjust and harmful policies and abuses of power like this
11:37one. Professor, one thing we can say for certain is that there's been whiplash with these tariff
11:43policies. After the reciprocal tariffs went into effect, they were largely paused for 90 days.
11:48But that 10 percent baseline remains for most countries. The tit for tat with China has been
11:53ratcheted up to at this point, as you and I are sitting here, as high as 245 percent. Does this pause
12:00do anything to the lawsuit? No. First of all, as you mentioned, there are still 10 percent tariffs
12:05on almost every country in the world. That by itself is the highest tariff schedule in close to
12:11100 years or more. And obviously, there's also the trade war with China as well that's still ongoing
12:17on without cause. But even the rest is not permanently ended. It's only paused for 90 days.
12:22And that's still a violation of the law for him to say it's going to be in place 90 days from now.
12:28And more fundamentally, one of the problems with concentrating power over this in the hands of one
12:34man is that he can constantly change things anytime he wants if he has that power. And that eliminates
12:41the certainty and clarity that businesses and consumers and just even ordinary Americans,
12:46they need to be able to plan their affairs. Think about if you're investing in a factory
12:50but you don't know what the tariff rate is going to be tomorrow, that's a severe deterrent to making
12:55that investment. If you're signing contracts for a delivery of goods, many of which by their nature
13:00have to be advanced contracts for commitments over a period of months or years. Once again, you need some
13:06clarity and certainty on what are the prices you're going to be paying. And if you can't have that,
13:11that severely damages the world and American economies and raises prices for consumers
13:17and even cutting off access to some important goods almost completely.
13:21This is not the first lawsuit on President Trump's tariffs. There was another one on other IEPA tariffs
13:26from February over President Trump's China tariffs there. Do you think that this is eventually going
13:32to make its way to the Supreme Court? I think it's possible. We'll have to see how our lawsuit works out.
13:39And also there's two other significant losses that have been filed. The one you mentioned,
13:43also one in Montana filed by members of the Blackfeet Nation and Native American tribe.
13:50And I have heard today the announcement the state of California is going to file a lawsuit
13:54challenging at least some of the IEPA tariffs. So I think there's a decent chance this will get
13:59to the Supreme Court. We'll just have to see about that. You're arguing that President Trump is
14:04exceeding his authority. He's overstepping the Constitution. Legally, what do you think are
14:09some of the implications here when it comes to presidential powers?
14:13So we think that he's going way beyond the legitimate scope of presidential power.
14:18And if he's allowed to get away with it, we will have one man rule over this vast realm of the American
14:23economy. That's unconstitutional, but it's also dangerous for the reasons that I've already mentioned
14:28that we don't want one man, you know, if he wakes up on the wrong side of his bed to be able to start
14:34a global trade war anytime he feels like it. Even if you trust President Trump with this authority,
14:39which frankly, I do not think about you trust the next Democratic president with it. Do you think
14:43Joe Biden would do a great job if he had this power or Kamala Harris or whoever the next president is
14:48going to be? To my mind, no one person, whether Democrat or Republican, can be trusted with this much
14:53power over our lives and our economy. And in fact, the founding fathers deliberately designed the
15:00Constitution to prevent that from happening. Professor, as we see the lawsuit make its way
15:06through next steps, I hope you come back on and join me. Thank you so much for the conversation.
15:10You are welcome back anytime. Thank you for having me.
15:23Thank you for having me.