I agree that it’s always a big deal when the Court strikes down a policy that’s important to the President. But I don’t really think Learning Resources is a big deal beyond that: It didn’t break any new ground, and to my knowledge, the overwhelming majority of court-watchers expected this result.
Congress, not the President, has the power to tariff. And though Congress can delegate some of that power, IEEPA did not have a clear delegation of the tariff power, and it didn’t contain any sort of meaningful limiting principle that would’ve prevented the President from abusing the tariff power. Under volumes of existing precedent, these IEEPA tariffs were always doomed.
Learning Resources just reconfirmed what we all already knew.
It’s also tough to argue Learning Resources was a big deal when (a) the President is still imposing a 15% tariff on the entire world and (b) there is no clear path to disgorging these illegal tariff revenues from the government. If the President can usurp Congress’s core power for more than a year and keep billions of dollars in illegal revenues, then the Constitution seems pretty flimsy.
"there is no clear path to disgorging these illegal tariff revenues from the government"
Somewhat orthogonal to the point, but I continue to be baffled by the credulousness afforded this assertion. If the tariffs were ultra vires, that means they were an illegal exaction of property, the default remedy for which is simply return of the exacted property--I've never seen any case suggesting that a plaintiff's successful mitigation somehow entitles the Government to keep illegally-exacted property. And in any event, the government resisted interim relief during the pendency of these appeals on the basis that plaintiffs could not show irreparable harm since refund would be available as a remedy.
While I'm sure the administration will try to give importers of record the runaround through CBP's refund process (though given the administration's manifest bad faith on the issue, I expect the lower courts to have virtally no patience for such shenanigans), I've yet to see a credible legal argument as to why importers are not entitled to a full refund.
Ok. But what does that refund process look like? And what makes you so sure the Trump administration will issue refunds in good faith, or at all for that matter?
- Do all importers have to file their own claim to get their refund? How do they prove the amount they’re entitled to? What if the government disputes their claimed amount? If it’s filed as a class action, how do you figure out who’s owed what, and do you expect this administration is capable of doing this competently and fairly?
- What about consumers? The costs of these tariffs were passed on to consumers in the form of higher-priced goods. We got screwed too, right? It seems weird that the companies would be entitled to tariff reimbursements but consumers wouldn’t.
- What if the tariff revenues have already been spent or promised to someone else—say, to the farmers Trump has promised to bailout?
Just because you throw around words like “ultra vires,” it doesn’t mean this egregious constitutional injury will be remedied. My guess is any refunds that do get issued will go to huge corporations who can afford to hunt them down, but small businesses and consumers will get fucked as usual.
If Costco, Revlon and whoever the 3rd company is, I can't remember who all's taking the tariffs to court, IF they do get a favorable ruling? Will it be payed by the taxpayer and the treasury Judgment fund? I read an interesting article from Professor Figley on the Judgment Fund.
Not a big deal, because he does not care what it decides. The test will come with an important election case(s) re the mid-terms, or 2028 elections when the Bush v Gore alum on the Court will need to decide their loyalties and clearly articulate them if they get to decide in time. The Court has no enforcement powers when the DoJ is not independent. Hopefully enforcement will not have to lie with the military and national guard. The Court has enabled him, and Learning Resources did not disable him. Moscow or London rules, or a hybrid for Articles 1 and 3?
I appreciate the photograph of Youngstown Sheet & Tube. Another connection between the two cases is that in theory the tariffs were supposed to bring back manufacturing to places like Youngstown.
Article talks about who pays when the Government and Agencies loose.
I had no idea about the judgment fund, treasury funds it he said.
KR
I agree that it’s always a big deal when the Court strikes down a policy that’s important to the President. But I don’t really think Learning Resources is a big deal beyond that: It didn’t break any new ground, and to my knowledge, the overwhelming majority of court-watchers expected this result.
Congress, not the President, has the power to tariff. And though Congress can delegate some of that power, IEEPA did not have a clear delegation of the tariff power, and it didn’t contain any sort of meaningful limiting principle that would’ve prevented the President from abusing the tariff power. Under volumes of existing precedent, these IEEPA tariffs were always doomed.
Learning Resources just reconfirmed what we all already knew.
It’s also tough to argue Learning Resources was a big deal when (a) the President is still imposing a 15% tariff on the entire world and (b) there is no clear path to disgorging these illegal tariff revenues from the government. If the President can usurp Congress’s core power for more than a year and keep billions of dollars in illegal revenues, then the Constitution seems pretty flimsy.
"there is no clear path to disgorging these illegal tariff revenues from the government"
Somewhat orthogonal to the point, but I continue to be baffled by the credulousness afforded this assertion. If the tariffs were ultra vires, that means they were an illegal exaction of property, the default remedy for which is simply return of the exacted property--I've never seen any case suggesting that a plaintiff's successful mitigation somehow entitles the Government to keep illegally-exacted property. And in any event, the government resisted interim relief during the pendency of these appeals on the basis that plaintiffs could not show irreparable harm since refund would be available as a remedy.
While I'm sure the administration will try to give importers of record the runaround through CBP's refund process (though given the administration's manifest bad faith on the issue, I expect the lower courts to have virtally no patience for such shenanigans), I've yet to see a credible legal argument as to why importers are not entitled to a full refund.
Ok. But what does that refund process look like? And what makes you so sure the Trump administration will issue refunds in good faith, or at all for that matter?
- Do all importers have to file their own claim to get their refund? How do they prove the amount they’re entitled to? What if the government disputes their claimed amount? If it’s filed as a class action, how do you figure out who’s owed what, and do you expect this administration is capable of doing this competently and fairly?
- What about consumers? The costs of these tariffs were passed on to consumers in the form of higher-priced goods. We got screwed too, right? It seems weird that the companies would be entitled to tariff reimbursements but consumers wouldn’t.
- What if the tariff revenues have already been spent or promised to someone else—say, to the farmers Trump has promised to bailout?
Just because you throw around words like “ultra vires,” it doesn’t mean this egregious constitutional injury will be remedied. My guess is any refunds that do get issued will go to huge corporations who can afford to hunt them down, but small businesses and consumers will get fucked as usual.
Is all that “orthogonal” to the point?
You both might want to check out this recent post/interview by Jack Goldsmith on the refund process. https://executivefunctions.substack.com/p/the-tariff-refund-problem
If Costco, Revlon and whoever the 3rd company is, I can't remember who all's taking the tariffs to court, IF they do get a favorable ruling? Will it be payed by the taxpayer and the treasury Judgment fund? I read an interesting article from Professor Figley on the Judgment Fund.
KR
Not a big deal, because he does not care what it decides. The test will come with an important election case(s) re the mid-terms, or 2028 elections when the Bush v Gore alum on the Court will need to decide their loyalties and clearly articulate them if they get to decide in time. The Court has no enforcement powers when the DoJ is not independent. Hopefully enforcement will not have to lie with the military and national guard. The Court has enabled him, and Learning Resources did not disable him. Moscow or London rules, or a hybrid for Articles 1 and 3?
Nixon tapes I suppose. Certainly mattered a lot to him personally.
United States v. Nixon!
I appreciate the photograph of Youngstown Sheet & Tube. Another connection between the two cases is that in theory the tariffs were supposed to bring back manufacturing to places like Youngstown.