President Donald Trump now faces one legal challenge to his historic tariffs — and even more lawsuits could be on the way.
A nonprofit legal group, the New Civil Liberties Alliance, filed a lawsuit in the U.S. District Court in northern Florida Thursday night, arguing Trump’s use of a national emergency law to justify the 20 percent tariffs that Trump imposed on China earlier this year is illegal. The White House argued that China’s supply of fentanyl and its precursor chemicals to the United States constituted a national emergency.
Lawyers and representatives for various business groups are mulling similar challenges to the new duties the president unveiled Wednesday, which cited a national emergency due to the trade deficit, according to two people familiar with the discussions, granted anonymity to discuss strategies that have not yet been finalized.
“All options are being considered,” one of those people, a senior trade association executive, said.
At issue is a nearly-50-year-old law, the International Emergency Economic Powers Act, that Trump is citing to impose both the duties on China and the global “reciprocal tariffs” he announced this week. The 1977 law gives the president broad authority to respond to a national emergency. But Trump is the first president to use it to impose tariffs, which is a power the U.S. Constitution assigned to Congress. And legal scholars say it’s possible a judge would find such a move illegal, unraveling the White House’s bid to hit trading partners with duties not seen in a century.
“IEEPA has a long list of things that the president can do and nowhere does it say ‘tariffs,’” said Liza Goitein, senior director of the liberty and national security program at the Brennan Center for Justice, a nonpartisan law and policy institute. “There is absolutely a basis on which to challenge the use of IEEPA for tariffs based on the Supreme Court’s own jurisprudence,” Goitein added, and “there’s some likelihood of success on this lawsuit on that grounds.”
John Vecchione, a lawyer for NCLA, which filed the lawsuit against the China tariffs on behalf of Emily Ley Paper Inc, elaborated. “If this was ‘Red Dawn’ and the enemy was coming across the border and the president invoked IEEPA, he still can’t put in tariffs,” Vecchione said.
“It’s not what it’s for. He can embargo [our enemies]. He can cut off their banking. He can do a lot under IEEPA, but tariffs are not in it.”
“One of the ways any normal person would know this, is it’s been around 50 years since the Iranian crisis. No one has ever imposed a tariff under it,” Vecchione added.
Pensacola-based Emily Ley Paper owns Simplified, a company that sells paper products and planners for women. It imports from China and has faced higher duties because of Trump’s action.
“Under current plans, the new tariffs will impose hundreds of thousands of dollars in costs on Simplified,” the lawsuit says. “If it moves its manufacturing operations away from China, this would impose further costs. Either course would require Simplified to raise its prices to its customers and either reduce its already small staff or not hire more staff.”
The Retail Litigation Center welcomed the case. It is part of the Retail Industry Leaders Association, which represents big companies like Target, Best Buy and Gap.
“As the suit explains, Congress did not give the President the authority to unilaterally enact tariffs that so profoundly affect the economy and Americans’ pocketbooks,” the RLC said. “Before lasting damage is done to the economy and family budgets, leading retailers support timely judicial review of this abuse of authority from the White House.”
A White House spokesperson did not immediately respond to request for comment.
Some companies and trade associations believe Trump’s national emergency declaration for his new reciprocal tariffs is on even shakier legal ground than the national emergency he declared for his China tariffs.
“It would appear that the new tariffs that were announced on Wednesday under IEEPA are the weakest link and the one most susceptible to a successful challenge,” said one industry representative, who was granted anonymity to discuss a matter still under consideration. “They’re also the most dramatic … I wouldn’t be surprised to see one or more lawsuits coming on the tariffs that were announced on Wednesday.”
Those tariffs haven’t gone into effect yet, however, with the first tranche — a flat 10 percent duty on all foreign imports — due to be imposed early Saturday and a second round of higher duties on 60-odd trading partners set to go into force on April 9. It’s unlikely any group will file a lawsuit until after the tariffs officially go forward.
Vecchione said he disagreed that the case against Trump’s fentanyl tariffs is weaker than a potential case against the new reciprocal tariffs. That’s because IEEPA doesn’t give the president the authority to impose tariffs, regardless of the emergency, he argued.
Ley Paper and the NCLA are not seeking a preliminary injunction to immediately stop Trump from collecting the duties because such decisions can be appealed and slow down the case, Vecchione said. But they do hope for a ruling by the end of the year that Trump’s action was unlawful and unconstitutional, he said.
Some lawmakers agree that Congress has delegated too much of its power over tariffs to the executive branch. A bill filed this week by Sens. Chuck Grassley (R-Iowa) and Maria Cantwell (D-Wash.) would end presidential tariffs after 60 days unless Congress votes to extend them. It gained several new Republican supporters on Friday, but is still unlikely to move forward in the Republican-controlled Congress, where most in the president’s party continue to defer to Trump.
Likewise, many business groups are deeply fearful of challenging Trump in public, particularly given the chance he could quickly scale back the tariffs. They point to Trump’s swift reversal last month on tariffs targeting Canada and Mexico, which he largely paused amid an uproar from business leaders and even some Republicans.
Vechhione said he thought fear was the main reason no one else has filed a case yet.
“I think some in the profession are afraid. They’re just afraid, and their clients are afraid. They’re afraid of the administration,” he said.
Caitlin Oprysko and Josh Gerstein contributed to this report.