We’ve been fighting for the nondelegation doctrine for years. Tariffs are the latest row.
“We the People” are among the most recognizable words in human history. They begin the preamble to the United States Constitution: the mission statement, to borrow modern corporate lingo. The preamble tells us who was acting and, more importantly, why: “in Order to form a more perfect Union, establish Justice, [ensure] domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity[.]”But then, having said what they sought to do, they had to turn to the doing. And the first Article in the Constitution was far less florid: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” The very first thing the Constitution does is place the power to make law in the hands of Congress alone.
For the Founders, in other words, this was the first step in securing “the Blessings of Liberty.” Elected representatives in Congress are meant to be the only ones making the law. But starting in the 1930s, the progressive movement introduced a different idea. They believed that modern society was too complicated to require Congress to write all our laws. Instead, they suggested, Congress ought to pass broad, vague statutes that delegate the power to write the details of the law to the president and the executive branch agencies that wield his power.
That is the reality we live in today. One where our elected representatives in Congress have shirked their constitutional duty and attempted to punt nearly limitless authority to the executive branch.
The Constitution demands a champion on this score. Which is why we’ve spent decades bringing cases to revive the “nondelegation doctrine,” the legal principle that Congress cannot delegate its constitutional power to make law to anyone else, including the president and executive branch agencies.
As early as the 1990s, PLF argued that Congress can’t delegate the power to regulate national forest land to the Columbia Gorge Commission. But you don’t need to look nearly that far back to find our commitment to the nondelegation doctrine.
In 2020, the Centers for Disease Control and Prevention tried to ban landlords from evicting tenants who didn’t pay their rent. Congress never gave the CDC the power to ban evictions. But the CDC claimed that power nonetheless, pointing to language in the Public Health Service Act as a justification that authorized any regulation that the CDC director deemed “necessary” in her judgment to control contagious disease. This meant essentially that the CDC and not Congress got to write the law governing public health and evictions. That was an intolerable state of affairs. As the Sixth Circuit Court of Appeals observed, it would “grant the CDC Director near-dictatorial powers for the duration of the pandemic, with authority to shut-down entire industries as freely as she could ban evictions.”
Eric and Lila Wohlwend, represented by PLF, sued the CDC because it was exercising power that Congress never gave it. If Congress had given the agency that power by statute, it would have violated the nondelegation doctrine. The Supreme Court affirmed our argument, ruling the CDC lacked the constitutional authority to enforce a nationwide eviction moratorium.
In 2022, President Biden announced that he would erase more than half-a-trillion dollars in federal student debt for more than 40 million borrowers. Congress created the programs that issued those loans, and the Constitution gives Congress the spending power. So where did the president find authority for this unprecedented gambit? He claimed that the HEROES Act—passed in 2003 in response to the Iraq War to allow the government to modify loans to assist service members and their families during times of war or other national emergencies—was a free roaming grant of power to erase student debt so long as there existed a pretextual “emergency.”
PLF sued again, on behalf of borrowers who would incur a tax burden because of the forgiveness, arguing that President Biden was exercising power that Congress never gave him and that if Congress had given him that power, it would have violated the nondelegation doctrine.
In 2019, the Department of Labor announced it would increase the minimum salary for employees to be exempt under the Fair Labor Standards Act. But that law doesn’t allow the DOL to use a salary threshold to determine exemptions at all. Rather, the text of the law exempts any employee in a “bona fide executive, administrative, or professional” role. The text of the law exempts employees based on what they do, but the DOL is trying to exempt based on how much they’re paid. Congress never gave them that power. Robert Mayfield, with help from PLF, sued the Department of Labor.
In 2023, the Department of Agriculture set out to expand roadless rule restrictions denying meaningful public access and use of 58.5 million acres of land nationally. The 2023 Rule blocks critical energy infrastructure projects in the Tongass National Forest, affecting impoverished communities that pay some of the highest energy rates in the nation. The USDA claims authority to cordon off vast swaths of land for any reason it likes—simply because agency officials have decided to weigh environmental values greater than other competing public concerns.
With help from PLF, Inside Passage Electric Cooperative—being blocked from building sustainable, eco-friendly power projects to improve their customers’ quality of life—sued the USDA because it was exercising power that Congress never gave it (and, of course, if Congress had given it that power, it would have violated the nondelegation doctrine).
In 2024, the Federal Trade Commission banned all non-compete agreements nationwide. The FTC claimed the power under the FTC Act to create sweeping rules defining “unfair methods of competition.” But the Act only allows the FTC to prevent the use of unfair methods of competition on a case-by-case basis through hearings that consider all relevant facts in a particular case. The FTC Act does not allow the FTC to make its own laws outlawing common employment arrangements nationwide.
Represented by PLF, ATS Tree Services sued the FTC.And now, in 2025, President Trump has announced—notwithstanding a dizzying series of ad hoc changes—sweeping tariffs on virtually every product American consumers and companies buy from overseas. But if we consult Article I of the Constitution, we find that “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises.” Tariffs are taxes on imports, so where does the president get the authority to impose them?
He claims that the International Emergency Economic Powers Act (IEEPA) gives him the power to impose these tariffs. But that law never even mentions tariffs. The law was designed to allow presidents to impose economic sanctions on nations that pose a threat to the U.S. Its purpose was not to impose tariffs to effect some change in their trade policy. It gives the president the power to “investigate, regulate, or prohibit any transactions in foreign exchange” in response to a national emergency. Tariffs do not fall under any of these enumerated powers.
And if Congress had allowed the president to impose tariffs, the law would be an unconstitutional, impermissibly broad delegation of legislative power to the president.So here we are again, with the president exercising power that Congress never gave him. And again, if Congress had given him that power, it would violate the nondelegation doctrine.
And as tends to be the case with history, what comes next rhymes: Represented by PLF, Stonemaier Games, Princess Awesome, and several other American businesses have sued.
President Trump’s tariffs may be new—no president has ever claimed the power to levy tariffs under IEEPA before—but the executive branch claiming power it doesn’t rightly have isn’t. We’ve been suing to stop it for decades.
