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An important thread. As @JGodiasMurphy explains, for technical reasons CBP is not likely able to collect tariffs on Mex imports next week, or possibly even this month. This fact underscores the constitutional problems with these tariffs. 1/
@JGodiasMurphy S. 1704 of IEEPA makes it a crime to willfully violate, attempt to violate, or aid & abet a violation of any presidential order, reg, etc. made under IEEPA. In other words, when POTUS declares an emergency and then acts under IEEPA, he creates crimes. 2/
@JGodiasMurphy That itself may be unconstitutional under either the non delegation doctrine (we'll find out in Gundy) or the due process clause. The basic problem is the same: the executive branch is defining a crime w/ no guidance, limits, or notice to citizens from Congress. 3/
@JGodiasMurphy But CBP's inability to collect the tariffs means that on Monday importers may not be able to import into the US w/o incurring criminal liability. In theory, implementing regs could create a grace period allowing import but deferring payment of tariffs until CBP can collect. /4
@JGodiasMurphy But if the regs don't create a grace period, or worse, do so ambiguously, importers could be prosecuted. Hence the due process/nondelegation problems. POTUS will be creating a crime w/ no guidance from Congress, no admin process, & no notice as to how to avoid criminal liability.
