Well, well. So last night the U.S. Court of International Trade found most of Trump’s tariffs unconstitutional. And as of today ports are not supposed to collect the tariffs. And if the ruling stands, companies are to be reimbursed for whatever tariffs they have paid so far.

The Constitution is unambiguous in giving the power to impose tariffs exclusively to Congress. The question before the court was whether the International Emergency Economic Powers Act of 1977 (“IEEPA”) delegates those powers to the President. The decision of the court (you can read it here) seems to me to make an airtight argument that, even assuming we were in some emergency, the IEEPA just plain doesn’t extend to tariffs.  Congress may delegate some limited tariff-imposing functions to the POTUS, as long as it “lay[s] down by legislative act an intelligible principle to which the person or body authorized to [exercise that authority] is directed to conform.” I take that to mean that any such delegation must  be limited and must conform to a specific situation. What Trump has been doing is way off the charts.

If you don’t want to wade through the whole decision, you can read a good summation at Reason magazine. (If the title of the column, The Volokh Conspiracy, sounds familiar, it started out as an independent right-wing blog by a law professor named Eugene Volokh, who was all in the tank for George W. Bush and the invasion of Iraq back in the day.)

At Lawyers, Guns and Money, Scott Lemieux pulls this quote from the decision as the core of the argument:

Underlying the issues in this case is the notion that “the powers properly belonging to oneof the departments ought not to be directly and completely administered by either of the other departments.” Federalist No. 48 (James Madison). Because of the Constitution’s express allocation of the tariff power to Congress, see U.S. Const. art. I, § 8, cl. 1, we do not read IEEPA to delegate an unbounded tariff authority to the President. We instead read IEEPA’s provisions to impose meaningful limits on any such authority it confers. Two are relevant here. First, § 1702’s delegation of a power to “regulate . . . importation,” read in light of its legislative history and Congress’s enactment of more narrow, non-emergency legislation, at the very least does not authorize the President to impose unbounded tariffs. The Worldwide and Retaliatory Tariffs lack any identifiable limits and thus fall outside the scope of § 1702.

Second, IEEPA’s limited authorities may be exercised only to “deal with an unusual and extraordinary threat with respect to which a national emergency has been declared . . . and may not be exercised for any other purpose.” 50 U.S.C. § 1701(b) (emphasis added). As the Trafficking Tariffs do not meet that condition, they fall outside the scope of § 1701.

In summation, Scott writes, “the statute simply does not authorize extremely high across-the-board tariffs, changed at random intervals, in better-than-usual economic conditions. Emergency powers are being exercised in the absence of an emergency, and this exceeds the power delegated by Congress.”

The White House already has declared it will file an appeal to the Supreme Court by this Friday. And nobody can be certain what the SCOTUS will do. Which is probably why the markets are a tad subdued today. Nobody’s ready to celebrate yet. And so far I haven’t seen any of the legal pundits I respect, like Andrew Weissmann or Joyce Vance, weigh in on this. Maybe later today. And do see The Supreme Court May Not Step in and Save Trump’s Tariffs at Politico. I have a hard time believing that the SCOTUS will just reverse the decision and let Trump go on as before, because the violation of the Constitution is too nakedly obvious. But if recent decisions are any guide, they’ll try to give him something.

What else might happen? This article at Tahoo Finance says there are two other statutes Trump could use to exercise tariff powers.

The most prominent quick strike option is the so-called balance-of-payments authority derived from Section 122 of the Trade Act of 1974. That power could allow Trump to move quickly, but with a 150-day limit on how long any tariffs can be in place.

The second route is a possible renewed focus on sectoral duties such as “Section 301” or “Section 232” tariffs.

These long-established tariff authorities (one derived from the Trade Act of 1974 and another from a separate Trade Expansion Act of 1962) are ones Trump has used in the past, but with the downside, from his perspective, that they can take time to implement.

Perhaps the most intriguing scenario involves the president moving on both fronts to try to quickly implement a short-term patch followed by a permanent fix.

One assumes he could ask the Republican-controlled Congress to impose tariffs for him, but I’m betting he won’t do that because he wants to be in control and make up the rules to fit his moods. It makes him feel special, I’m sure. It’s more likely that if he asks Congress to help him out, it would be to craft a new law that lets him continue to be the Tariff King for a while longer.

Paul Krugman:

Until he announced the massive “Liberation Day” tariffs on April 2, Trump mainly relied on Section 232 of the 1962 Trade Expansion Act, which empowers the president to impose tariffs when imports “threaten to impair national security.” Such tariffs are supposed to follow a quasi-judicial process in which the Commerce Department investigates the claim, reaches a decision, and the president then chooses whether to act:

But hey, this is the Trump administration, so if the president wants his flunkies’ officials’ opinion, he’ll tell them what it is. The result has been a series of absurd claims — Canadian aluminum is a national security threat? — but no real pushback.

Even so, that didn’t give Trump has much of a free hand as he wanted. So he began relying on the IEEPA. And I suspect that’s over.

At CNBC, see Four tools at the Trump administration’s disposal after a U.S. court blocks tariffs. In addition to the Sections 122, 301, and 232 tariffs mentioned above, there is also Section 338 of the Trade Act of 1930. This “allows the president to impose levies of up to 50% on imports from countries that discriminate against the U.S.” Trump hasn’t tried to use it before, but it sounds right up his alley.

The other possibility is that the SCOTUS will give Trump a decision that allows him to impose tariffs, but with with some conditions and limitations. And Trump decides he don’t need no steenking conditions and limitations, and he tells SCOTUS to kiss his ass and goes on doing what he’s been doing. That would be … interesting.

And I have one final question, which is that if Trump’s tariff options are limited, will that impact the Big Bill of Evil now being considered in the Senate? Because part of Trump’s argument for the tax cuts is that we’re going to have all this tariff money rolling in, so the cuts doesn’t matter. Which is nonsense, but Republicans pretend to believe it. I’d like to think that at least some Republicans in the Senate would realize there is no choice but to scale back the tax cuts. However, current Republicans are more likely to call for just shooting Medicaid recipients as a cost-saving measure. So I’m not too hopeful.

Update: From Axios:

A federal appellate court on Thursday temporarily stayed a ruling that effectively wiped out most of President Trump’s tariffs.

Why it matters: The intervention will deepen the chaos around the Court of International Trade’s Wednesday order, which threatens to upend global commerce.

Catch up quick: The trade court ruled that Trump did not have the authority under the 1977 International Emergency Economic Powers Act to impose sweeping reciprocal and retaliatory tariffs.

The administration immediately appealed, and suggested Thursday it could go straight to the Supreme Court to seek relief if other courts did not act quickly.

Driving the news: The U.S. Court of Appeals for the Federal Circuit issued an order Thursday staying the trade court’s ruling while it considers motions from both sides.

It ordered the plaintiffs in the case to file a response by June 5, and the government to reply by June 9.

This may delay taking the case to the Supreme Court. But then there’s also this. From Politico:

A second federal court has ruled against President Donald Trump’s emergency tariffs on imports from around the world, dealing another blow to his trade agenda and efforts to strike new deals with dozens of countries.

“The International Economic Emergency Powers Act does not authorize the President to impose the tariffs set forth” in four executive orders Trump issued earlier this year, D.C. District Court Judge Rudolph Contreras said in a decision ordering a preliminary injunction on the collection of the duties on the two plaintiffs who brought the case.

I don’t know which decision came first. So are tariffs being collected, or not?