Oregon Attorney General Dan Rayfield and Arizona AG Kris Mayes have prevailed in their challenge to a set of tariffs Pres. Trump had imposed on most countries on April 2. The lawsuit was filed in the U.S. Court of International Trade in April. The coalition of Attorneys General included Colorado, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada, New Mexico, New York and Vermont.
The judgment issued Wednesday said that the executive orders Trump issued using the International Emergency Economic Powers Act are illegal. In a statement, Rayfield celebrated the ruling and also noted it not only overturns the April 2 tariffs but also prevents Trump’s threatened 145% tariffs on Chinese imports and 50% tariffs on goods from the European Union. The administration has announced that it will appeal the ruling, and it immediately asked for the decision to be paused.
Rayfield joins us to share more details about this case.
Editor’s note: Shortly after we talked with Rayfield, an appeals court granted the Trump administration’s request for a stay and allowed the tariffs to remain in effect while the appeal process moves forward.
Note: The following transcript was transcribed digitally and validated for accuracy, readability and formatting by an OPB volunteer.
Dave Miller: From the Gert Boyle Studio at OPB, this is Think Out Loud. I’m Dave Miller. A month ago, Oregon Attorney General Dan Rayfield led a coalition of 12 state governments in a lawsuit that challenged the legality of many of President Trump’s tariffs. Yesterday, a three-judge panel of the U.S. Court of International Trade agreed with those attorneys general. It found that the tariffs that relied on executive orders the president issued using the International Emergency Economic Powers Act are illegal and it ordered a permanent injunction against those tariffs. The administration has announced that it will appeal the ruling and it immediately asked for the decision to be paused.
Dan Rayfield joins us now to talk about all of this. Good to have you back on the show.
Dan Rayfield: Well, thanks for having me.
Miller: So the president, as I noted, cited the authority granted to him under the International Emergency Economic Powers Act, something I had never heard of. What does the law actually say?
Rayfield: Well, the interesting thing and a baseline for everybody to just kind of hone in on this, is that no president in the history, and they’ll call it IEEPA, has ever used it for tariffs. Most presidents use what they call Title 19 laws, which were specifically designed for tariffs. And frankly, Congress delegated some power to the president and put these safeguards in place, safeguards for our economy, so that we don’t send our economy into chaos. We don’t artificially pass all these costs down to us as consumers.
So this is the first time he’s used this emergency power to try and effectuate change related to these emergencies. And one of the emergencies was to a trade deficit. Now, the reality of that is there is a specific law that Congress gave the president for trade deficits. The president didn’t want to use those because he doesn’t like the safeguards, wants to go around it, which is why he’s using this kind of law off to the side to get at what he’s trying to achieve.
Miller: The fact alone that no president has done something doesn’t mean that doing that thing goes against a particular law. So why is it that you – and the three judge panel agreed with your arguments – but why is it that this particular law does not grant a president to declare an emergency in this way and to impose tariffs in this way?
Rayfield: Well, two separate things. There is an emergency that was declared on the balance of trade. Then you have to go to the IEEPA statute and if you meet those requirements, you get access to those various tools. The reality is that Congress already anticipated trade deficits, right? These are things that are common. In the UK, they’ve had trade deficits for more than 40 years; Australia, more than 50 years. In modern economies, that’s fairly normal. This was anticipated by Congress and that’s why they passed a specific law to address the situation, a specific law with those economic safeguards to protect all of us, protect our economy, to protect our jobs. So part of the ruling here is saying, if you want to do trade deficits, by definition, Congress told you how to do it. And you’re ignoring that and you’re trying to get this loophole over here that we never intended, so that’s why you saw that being struck down.
Some of the other tariffs … so for instance, when it comes to the fentanyl emergency orders that were passed, the arguments that were being made, and the judges agreed, is that the tariffs that you pass for the economic tools that you use from IEEPA have to be tied to the outcome you’re trying to achieve, tied to that emergency order. So for instance, in Canada, taxing maple syrup or putting a tariff on that isn’t tied to the fentanyl crisis. And there has to be a nexus between those two things. That is why the court said, hey, these tariffs are unlawful, uniformly. It was a unanimous panel of three judges. And again, I always point out that these are judges appointed by both Democrats and Republicans – pretty significant.
Miller: The Trump administration continues to object to the authority of the judicial branch to check its power, including this ruling. One of its advisers, Steve Miller, called this a judicial coup. An administration spokesman talked about the quote, “National emergency that has decimated American communities, left our workers behind, and weakened our defense industrial base. Facts that the court did not dispute.”
The spokesman added this: “It’s not for unelected judges to decide how to properly address a national emergency. The administration is committed to using every lever of executive power to address this crisis and restore American greatness.”
As this case works its way through appeals, first at the U.S. Court of Appeals or perhaps just straight to the Supreme Court, how much do you think it’s going to hinge on what constitutes an emergency?
Rayfield: It won’t hinge on what constitutes an emergency. This is really focused on the IEEPA law, which is not the law that you create a national emergency. Once you’ve created a national emergency, then you have to then say, what are the tools that you can avail yourself of as an executive that have been granted to me as president by Congress under these powers? And the court said tariffs are not applicable for trade deficits. And again, those are things that there’s a specific statute to do this. So there is an executive power to do tariffs.
The president doesn’t like that statute because it doesn’t give him all the power that he wants, and that’s tough luck. If you wanna change that, go to Congress, pass a different law. And then there is this issue where we’re dealing with the fentanyl crisis that is impacting us across the nation. And under those circumstances you have a certain set of tools that you can use, but they have to be tailored to the emergency order, not necessarily attacking the emergency order itself. That is where the president went wrong. He does what he always does – he attacks an independent branch of government and he forgets what he learned in grade school.
We have three co-equal branches of government. And it should offend Democrats, Republicans and Independents that he wants to amass such power though as to hobble one of those co-equal branches of government. That’s exactly what you saw. It was astounding last week to see a president’s attorney come into that courtroom and say, you don’t get to review the emergency orders I passed and when we start exercising powers associated with that emergency order, you don’t get to review them either. And that is an incredibly dangerous precedent when you give any one person in any government that much power, Democrat or Republican.
Miller: Even before yesterday’s ruling, which injected a different version of uncertainty into U.S. trade policy, there’s just been a relentless seesaw about tariff policy. I think at this point, it’s anyone’s best guess as to what tariffs will look like six months or a year from now. So practically speaking, do you think there’s going to be an immediate impact on trade-reliant businesses in Oregon from yesterday’s ruling?
Rayfield: The big question is going to be what happens with their federal government stay motions. A stay motion effectively is something that they file in court to say, let’s pause this ruling of this court. Now, despite the fact that this was an incredibly strong ruling by these bipartisan judges, they’re going to try and stay that, both in the Court of International Trade as well in the federal district, in D.C. And depending on how those motions go, that will impact, in the short term, whether these four different tariffs that we’re attacking will be able to be put on hold, pending the appeals. So that’s kind of this big moment that we’ll see play out in the next couple of weeks.
Miller: Before we go, I just want to ask you about the way you have framed this legal win. The three-judge panel was really careful to point out that they were not at all focused on whether tariffs are good policy, whether they’re wise or were likely to be effective. Instead, they said they were solely concerned about what they deemed to be the unlawfulness of the president’s actions.
You mentioned that, but you went further. You wrote, after the ruling, President Trump’s sweeping tariffs were unlawful. You also added that they were reckless and economically devastating. Why comment on the policy itself? Why not just stick to the law?
Rayfield: Because the way that this has been implemented impacts us all. It impacts us as Oregon families who can’t afford $3,800, which is a big motivation for bringing this. It impacts our small businesses that are having our products being pulled off of Canadian shelves right now. It impacts our state. All of us should care that when we have to pay more as a state, that means less money goes into our schools, less money for health care. And two weeks ago, we had a revenue forecast that went down $700 million and there was a direct tie to the tariffs. This uncertainty is impacting us all.
If the president had just followed the law, followed Title 19, not some creative loophole workaround that he’s trying to do with this Emergency Economic Powers Act, he would have been stuck to the predictability, the economic safeguards that Congress intended. We would not have this chaos and people would not be being impacted right now. So yes, this is incredibly important for people. It’s incredibly important for the pillars and foundation of our democracy, and this is just an important issue all around.
Miller: Dan Rayfield, thanks very much.
Rayfield: Thanks so much, Dave. Take care.
Miller: That’s Oregon Attorney General Dan Rayfield.
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