Trump began imposing new tariffs shortly after taking office last year, leaning on the International Emergency Economic Powers Act (IEEPA), which allows presidents to “regulate” imports in emergency situations. The administration claimed the IEEPA gave Trump the power to levy tariffs, citing an influx of immigrants and drugs as emergencies under the act. Twelve states, led by Oregon, filed a lawsuit to overturn the tariffs last spring, arguing that they were unconstitutional and would raise the cost of goods for Americans.
The Supreme Court sided with the states in a 6-3 ruling, agreeing with their argument that the term “regulate” does not incorporate the powers of tariffs or taxation. Some of the justices who joined the majority also cited the “major questions” doctrine, which holds that nationally significant decisions by government agencies must be supported by “clear congressional authorization.” (See here for a detailed legal breakdown of the decision.)
The decision was a blow for Trump, who appointed two of the justices who ruled against him in this case. He responded to the decision by citing a different statute to levy more global tariffs. That law only authorizes the tariffs for 150 days, unless Congress decides to extend them.
Governing spoke with Oregon Attorney General (AG) Dan Rayfield, a Democratic former state legislator who led the lawsuit, about the impacts of the tariffs on his state, the legal issues in the case and the role of state attorneys general. The interview, which took place Friday night, before Trump announced he would further raise global tariffs to 15 percent, has been edited for length and clarity.
Governing: Why did you decide to file this lawsuit? How do these tariffs hurt Oregon specifically?
Dan Rayfield: It was a very easy decision to pursue and file this lawsuit. When you go around your community and hear from countless businesses about the impact to them, you just can’t sit there idly by. It’s also a well-known economic theory that most of the tariffs are paid by the American people. There’s a recent study that shows that 90 percent of the tariffs so far have been paid by Americans. You have a president that’s passing, effectively, hidden taxes without a vote of the public and he’s doing them willy-nilly, for any reason, for any amount and for any amount of time. It was a very easy decision, for the impact on Oregon and also for constitutional principles, to pursue this case.
Oregon Dept. of Justice
Can you tell me about the legal underpinnings of your argument? What did you think of the Supreme Court decision today?
When we started talking about this case in our office, I specifically remember a meeting in our office where I was laying out my personal thoughts. This was before we had really dug into the underlying issues of the case. The first analysis was, “hey, the term ‘regulate’ doesn’t mean tariffs and doesn’t mean taxes.” If it does, then you’ve got a major questions issue. And if you don’t have a major questions issue, then you have a nondelegation doctrine issue. It was this three-pronged approach that we started with, and that’s exactly what the ruling was today. It was very simple. The case was a lot simpler than a lot of people thought. It’s that the term “regulate” has not meant and never will mean taxes or tariffs.
What about the coalition you built for this lawsuit? You had 11 other states. That’s quite a few, but it’s not all the Democratic states. What was it like to build a team behind this?
How these things sometimes work is that individual states may be working on things or curious about things but there comes this point of momentum where we all start talking together. Here in Oregon we had started doing a lot of research. I said, “let’s start building a complaint.” We were a direct importer of goods. Some other states are not direct importers. As we did that I started having conversations. The first conversation I had was with Arizona Attorney General Kris Mayes, and I said, “do you want to lead with us on this?” She had very similar feelings. So the two of us went about and started talking to the other AGs. There were a couple other states that had done a little bit of ground work but weren’t as far along. So we started talking with them about how they were thinking about this. So then we started pitching the case to all the other states and saying, “Is this something you’d be interested in?”
What’s the benefit of having other states on the lawsuit with you?
Part of it is that you’re looking at the gravity of the impact of tariffs. Our job is to represent all the states. It’s incredibly important right now when you have this new injunction world. (Note: The Supreme Court ruled earlier this year to limit the ability of district judges to set nationwide injunctions, which had been a major obstacle for the executive branch under Trump and previous presidents.) If you’re a state that doesn’t join, you may not actually get the relief that you’re looking for. There’s sometimes an incentive, depending on the type of case, for that to apply. In this suit it was likely that it was going to apply across the board, any relief, if it was deemed unconstitutional.
What do you see as the role of the state attorney general in the Trump era generally?
We have our day-to-day responsibilities, whether it’s keeping communities safe and looking out for working families and consumers. There’s that work that has to go on no matter what. The other side of this is it’s really upholding the values of our Constitution and our laws, and making sure that the president and any executive is staying within their lanes as they’re impacting our states.
As we see impacts to our state and economy and it’s being done unconstitutionally or unlawfully, we have an obligation to react. That’s kind of this interesting moment we’re in. When you see the president make unlawful decisions to withhold billions of dollars from the states, we’ve got to be there. We have to call a strike a strike and get in there and say, no, you screwed up, and have the courts correct him. In this case it’s tariffs, and who knows what it will be next? But that’s how this role gets played as we’re moving forward. You get a lot of power as the president, but you need to use only that power. You don’t get to usurp other branches of government.
How well do you think this approach is working?
Unquestionably it’s working if you look at results and you look at outcomes. There are a ton of cases where the federal government has just waved the white flag. You think about the Victim of Crime Act dollars that the federal government was trying to withhold. We filed a lawsuit, and it didn’t even get to the merits. They just waved the white flag on that. We’ve had that on a lot of different cases.
In this scenario, Congress has delegated power to the president on tariffs, limited powers, and he can use those, as every other president has done. And they can use those powers, because they’re limited, in a way that won’t impact the economy and won’t impact consumers the way his initial tariffs were doing. That’s great. And if Congress doesn’t like it, then Congress can change the law. That’s how it’s supposed to work. For me it’s kind of at the same time when you’re dealing with a toddler that’s pushing your limits as a parent, you have to set appropriate boundaries. Our job as attorneys general is to set those boundaries.
Trump has responded to this decision so far by saying he’s going to use a different statute to do tariffs anyway. Do you see yourself filing another lawsuit on different legal grounds? What’s next?
We’ll be monitoring what he does. The president does have power to set tariffs according to those statutes. Certain statutes are incredibly limited in what he can do, and they’re intended to be limited. The statute that he’s now talking about for implementing 10 percent tariffs, it’s limited to 150 days, and you can’t continue it. It has to have congressional approval. The idea is that he can make a determination in a moment, in an emergency, and then he’s got to go sell it to Congress, because he’s stepping on Congress’ power at that point. And Congress has to buy into what he’s selling.
Part of the reason I think that he went with this broad sweeping tariff authority is because he didn’t think Congress was going to approve any of his policies, which is why he had to use this fantastical legal approach to try and implement his tariffs. So I think it’s going to be interesting to see when he does that, probably to save face, whether Congress is going to continue to do that, especially in an election year when the cost of goods are increasing. They’re going to have to explain that to voters in the fall.
