In Learning Resources Inc. v. Trump, decided yesterday, a textualist argument from Judge Contreras (D.D.C):
Since the Founding, the Constitution has vested the “Power to lay and collect Taxes, Duties, Imposts and Excises” with Congress. U.S. Const. art. I, § 8, cl. 1. The President has no independent discretion to impose or alter tariffs. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952). Any Presidential tariffing authority must be delegated by Congress. See United States v. Yoshida Int’l, Inc., 526 F.2d 560, 572 (C.C.P.A. 1975) (“[N]o undelegated power to regulate commerce, or to set tariffs, inheres in the Presidency.”); Law Professors’ Amicus Br. at 3 (stating that Congress’s power to control taxation is a “structural safeguard of democratic accountability”). See generally 19 U.S.C.
Because courts “must enforce plain and unambiguous statutory language according to its terms,” the Court looks to IEEPA’s text to determine whether it is a law providing for tariffs. See Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 251 (2010); 28 U.S.C. § 1581(i)(1)(B). IEEPA does not use the words “tariffs” or “duties,” their synonyms, or any other similar terms like “customs,” “taxes,” or “imposts.” It provides, as relevant here, that the President may, in times of declared national emergency, “investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit” the “importation or exportation” of “property in which any foreign country or a national thereof has any interest.” 50 U.S.C. § 1702(a)(1)(B). There is no residual clause granting the President powers beyond those expressly listed. The only activity in Section 1702(a)(1)(B) that could plausibly encompass the power to levy tariffs is that to “regulate . . . importation.” See Defs.’ PI Opp’n at 11 (relying on those words to argue that IEEPA authorizes the imposition of tariffs).
The Court agrees with Plaintiffs that the power to regulate is not the power to tax. See Mot. Prelim. Inj. at 18. The Constitution recognizes and perpetuates this distinction. Clause 1 of Article I, Section 8 provides Congress with the “Power To lay and collect Taxes, Duties, Imposts and Excises.” Clause 3 of Article I, Section 8 empowers Congress “To regulate Commerce with foreign Nations.” If imposing tariffs and duties were part of the power “[t]o regulate [c]ommerce with foreign [n]ations,” then Clause 1 would have no independent effect. As Chief Justice Marshall put it in an early leading case, “the power to regulate commerce is . . . entirely distinct from the right to levy taxes and imposts.” Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 201 (1824) (Marshall, C.J.). The Constitution treats the power to regulate and the power to impose tariffs separately because they are not substitutes. See id. at 198–99 (describing the power to tax
and the power to regulate as “not . . . similar in their terms or their nature”).
“Tariff” and “regulate” also take different plain meanings. To regulate something is to “[c]ontrol by rule” or “subject to restrictions.” Regulate, The Concise Oxford Dictionary of Current English 943 (6th ed. 1976); see also Regulate, New Webster’s Dictionary of the English Language 1264 (1975) (“to govern by or subject to certain rules or restrictions”); see also Defs.’ PI Opp’n at 11 (citing similar definitions). Tariffs are, by contrast, schedules of “duties or customs imposed by a government on imports or exports.” Tariff, Random House Dictionary of the English Language 1454 (1973). To regulate is to establish rules governing conduct; to tariff is to raise revenue through taxes on imports or exports. Pls.’ PI Reply at 3. Those are not the same. Cf. Tom Campbell, Presidential Authority to Impose Tariffs, 83 La. L. Rev. 595 (2023) (arguing that “tariffs are economically different from quantitative import restraints”). If Congress had intended to delegate to the President the power of taxing ordinary commerce from any country at any rate for virtually any reason, it would have had to say so. See Biden v. Nebraska, 600 U.S. 477, 505–06 (2023) (requiring a clear statement from Congress when the interpretation of a provision would have a “question of ‘deep economic and political significance’ that is central to [the] statutory scheme”) (alteration in original) (quoting King v. Burwell, 576 U.S. 473, 486 (2015)).
This seems persuasive to me, and it doesn't depend on broader claims about nondelegation (in contrast to the related recent decision by the Court of International Trade). And I like that he uses dictionaries from the mid-1970s — appropriate for a statute enacted in 1977.
And Judge Contreras goes on to distinguish a prior decision of the Court of Customs and Patent Appeals (upholding President Nixon's imposition of tariffs under the Trading with the Enemy Act (TWEA), IEEPA's predecessor statute) because it was not textualist enough:
The Court of Customs and Patent Appeals [upheld the tariffs] based on “the intent of Congress” and “the broad purposes of the [TWEA].” Yoshida, 526 F.2d at 583; see also id. at 573 (emphasizing that “the primary implication of an emergency power is that it should be effective to deal with a national emergency successfully”). That is no longer how courts approach statutory interpretation. See Am. Fed. of Gov. Empls., Nat’l Council of HUD Locals Council 222, AFLCIO v. FLRA, 99 F.4th 585, 590 (D.C. Cir. 2024) (discussing how purposivism was, by the end of the twentieth century, “largely rejected in favor of a stricter focus on a statute’s text” (citing John F. Manning, Textualism and the Equity of the Statute, 101 Colum. L. Rev. 1, 6–7 (2001))); Loper Bright, 603 U.S. at 443 n.6 (Gorsuch, J., concurring) (describing how in 1984 “there were many judges who abhorred plain meaning and preferred instead to elevate legislative history and their own curated accounts of a law’s purposes over enacted statutory text,” but now courts have “a more faithful adherence to the written law” (cleaned up)). The Supreme Court could not be more clear that courts must focus on a statute’s text. E.g., Jimenez v. Quarterman, 555 U.S. 113, 118 (2009) (“As with any question of statutory interpretation, our analysis begins with the plain language of the statute.”); see also Lamie v. U.S. Trustee, 540 U.S. 526, 534 (2004) (“It is well established that ‘when the statute’s language is plain, the sole function of the courts—at least where the disposition required by the text is not absurd—is to enforce it according to its terms.’” (quoting Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6 (2000)). So Yoshida’s reasoning is not compelling on its own terms.
(Via Ilya Somin at Volokh Conspiracy.)
RELATED: Also at Volokh Conspiracy, Michael McConnell has thoughts on the tariff litigation and predicts "a high probability the decisions will be affirmed."
That may be, but the Supreme Court seems to be in a tough spot. The tariffs are central to the President's economic program and foreign policy, and he will be humiliated on the world stage if he's forced to withdraw them.
But Judge Contreras' opinion may suggest an alternative: IEEPA does delegate power over regulation of imports and exports, including power to "prevent or prohibit" them. Perhaps the President can pursue roughly the same goals through threats of quantitative restrictions.
UPDATE: At his substack Executive Functions, Jack Goldsmith has a counterpoint: The Weaknesses in the Trump Tariff Rulings. His textual argument seems a bit thin though, largely limited to the following:
On their face, [the President's tariffs] on imports “regulate . . . importation . . . of . . . any property in which any foreign country or a national thereof has any interest by any person” under IEEPA.
The textual argument finds support in the predecessor statute to IEEPA, the Trading With the Enemy Act (TWEA). TWEA, like IEEPA, authorized the president in an emergency to “regulate . . . importation . . . of . . . any property in which any foreign country or a national thereof has any interest, by any person.” In 1971, President Nixon, in order to address a balance-of-payments deficit, invoked this provision to impose a very broad 10 percent import duty. The United States Court of Customs and Patent Appeals (CCPA), in United States v. Yoshida, upheld Nixon’s duties under TWEA. While IEEPA later modified and in some respects sought to narrow TWEA, it retained the “regulate . . . importation” language on which Nixon and the CCPA relied.
And in response to Judge Contreras' textual argument:
… The government loses, the district court reasoned, because IEEPA does not authorize the president to impose tariffs.
This argument has the virtue of fighting the government's plain text argument— “regulate . . . importation . . . of . . . any property”—with its own plain text argument: IEEPA says “regulate,” not impose “tariffs.” Looking at different dictionaries, the court said that “[t]o regulate something is to ‘[c]ontrol by rule’ or ‘subject to restrictions,’” while “[t]ariffs are, by contrast, schedules of ‘duties or customs imposed by a government on imports or exports.’” “Those are not the same,” concluded the court. I found this argument by itself unpersuasive, since a schedule of government duties on imports is a form of government control over imports by rule or an example of the government subjecting imports to restrictions.
I concede that the point about IEEPA potentially incorporating the Yoshida decision's definition of "regulate" is a good one. Otherwise I'm not sure this does much to undermine Judge Contreras' textual argument.
Professor Goldsmith also has important points about nondelegation and (especially) the major questions doctrine.
Posted at 6:04 AM