You may have heard by now that two different federal courts have invalidated most of President Trump’s tariffs. Below are some relevant links via the Volokh Conspiracy blog:

1. We Won Our Tariff Case!
2. Federal Circuit Issues Brief Administrative Stay in Our Tariff Case
3. From Stanford Prof. Michael McConnell on the Tariff Decicions

Both cases, however, are now being appealed, and in the meantime, Professor Jack Goldsmith (Harvard Law School) has identified in this blog post some technical flaws and doctrinal soft spots in these recent rulings. To the point, although the text of the International Emergency Economic Powers Act (IEEPA) does not refer to tariffs or duties at all, this law confers on the president the sole — and, by logical implication, non-judicially-reviewable — power to declare national emergencies in response to “any unusual and extraordinary threat” against the United States.

Alas, who gets to decide what constitutes an “unusual and extraordinary threat”? For my part, I see some possible parallels between the current batch of tariff cases and Downes v. Bidwell, one of the infamous “Insular Cases” decided in 1901. I will discuss these parallels next week. Bonus link: Why Trump likes tariffs.