In the Voting Rights Act argument the other day, Justice Kavanaugh asked how long race could be used for crafting remedies. Where is the endpoint? The same concern was expressed in SFFA about racial preferences in education.
A similar question could be asked about the trade “emergency” that we are currently under. Where is the endpoint to emergency tariffs? Unless the laws of economics are repealed, we will always have a trade deficit somewhere.
In his Youngstown concurrence, Justice Jackson said the emergency powers granted to the President by Congress were “special, temporary law, perhaps, but law nonetheless. The public may know the extent and limitations of the powers than can be asserted, and persons affected may be informed from the statute of their rights and duties.”
This isn’t true with respect to the IEEPA. Nobody knows what the tariffs will be from day to day. Nor do they know how long they will last. And the statute says nothing about either. The Act flunks the Youngstown test if read broadly.