At SCOTUSblog, Adam White (Scalia Law): President Trump’s tariffs v. the Supreme Court’s duties. From the introduction:
… In the International Emergency Economic Powers Act of 1977 – or IEEPA for short – Congress gave presidents sweeping powers to deal with any “unusual and extraordinary threat with respect to which a national emergency has been declared.” Specifically, when the president declares such an emergency, he then has the power to (among other things) “investigate,” “regulate,” or “prohibit” imports. The word “tariff” or “tax” does not appear in the statute, but the administration argues that the president’s power to “regulate” such trade includes the power to impose tariffs on it.
One might be tempted, at first glance, to simply shrug off the administration’s argument that a tariff is a “regulat[ion].” After all, the Constitution plainly distinguishes between the power to “regulate” international trade and the power to impose “[t]axes, [d]uties, [i]mposts and [e]xcises” on it.
But the case is somewhat more complicated than that. First, as law professor Jack Goldsmith has emphasized, a federal court held 50 years ago that an earlier statute’s power to “regulate” trade supported President Richard Nixon’s own tariffs. (The court was the U.S. Court of Customs and Patent Appeals, which was abolished in 1982 and succeeded by the U.S. Court of Appeals for the Federal Circuit; the statute was the Trading with the Enemy Act of 1917, which was succeeded in 1977 by IEEPA.)
And second, as law professor Chad Squitieri has documented, many early constitutional statesmen – including James Madison and John Marshall – spoke generally of tariffs (“duties”) as a means to “regulate” commerce. In the 1824 case of Gibbons v. Ogden, for example, then-Chief Justice John Marshall alluded to “the right to regulate commerce, even by the imposition of duties.” To be sure, Marshall emphasized that the Constitution itself distinguishes the two powers: “the power to regulate commerce” is “entirely distinct from the right to levy taxes and imposts,” he wrote. But Squitieri’s point, illustrated by the first Marshall quote and many others, is that it is at least possible for other legal documents, including statutes, to treat “regulate” and “tariff” as synonymous.
And from the discussion of the major questions doctrine:
In recent cases involving policy initiatives by Democratic presidents – such as the EPA’s Clean Power Plan, OSHA’s COVID-19 vaccine mandate, the Education Department’s student loan waivers, and the CDC’s COVID-19 eviction moratorium – the Supreme Court has taken a very skeptical view of an administration’s sudden discovery of unprecedented powers in an old statute’s ambiguities. This is the “major questions doctrine,” a rule of judicial skepticism that the court summarized in West Virginia v. EPA: “‘In extraordinary cases … there may be reason to hesitate’ before accepting a reading of a statute that would, under more ‘ordinary’ circumstances, be upheld. Or, as we put it more recently, we ‘typically greet assertions of extravagant statutory power over the national economy’ with ‘skepticism.’”
Do Trump’s sweeping assertions of enormous power over global trade – a power to unilaterally make, unmake, and remake tariffs on little more than whims, based on a completely unreviewable presidential declaration of emergency – constitute a “major question”?
To ask the question practically answers it. Still, some make reasonable arguments that the technical requirements of the major questions doctrine do not apply to these tariffs.
The Trump administration, for example, argues that the major questions doctrine applies only to agencies’ interpretations of statutes, not to the president’s. That is a strange argument to be made by an administration that contends elsewhere that all regulatory agencies, including those involved in the court’s prior major questions doctrine cases, are subject to the president’s control – a doctrine known as the “unitary executive theory” – and agencies cannot make legal interpretations different from the president’s.
Then again, the administration’s lawyers are correct that the previous cases involved agency rules, not the president’s own orders, and thus the present case on IEEPA tariffs would be a novel application of the major questions doctrine. Nevertheless, the major questions doctrine is a doctrine about interpreting statutes, not about reviewing agencies per se. I think the administration is putting far too much weight on the nominal distinction between a president and his agencies (which it certainly doesn’t do in other contexts).
The Justice Department’s brief also argues that the major questions doctrine “has not been applied by th[e] Court in the national security or foreign policy contexts, because the canon does not reflect ordinary congressional intent in those areas.” Here the administration is quoting Justice Brett Kavanaugh’s concurrence in FCC v. Consumers’ Research, and the point is again a reasonable one. (Curtis Bradley and Goldsmith have written at length on the major questions doctrine’s ill fit for foreign policy and national security questions, where the president has “independent powers.”)
But this argument again begs the basic framing question: Is this simply a “foreign policy” or “national security” case, or is it also a case about Congress’ own power of the purse? Presidents have significant, independent constitutional powers in foreign policy and national security, as Justice Robert Jackson emphasized in the seminal steel seizure case; that much has long been clear. But equally clear is the fact that a president’s inherent constitutional powers do not include a power to tax. Such a power can only come from Congress. And none of the president’s genuinely independent powers in international affairs come close to the broad power to raise hundreds of billions of dollars in presidential revenues.
Kavanaugh’s question in FCC v. Consumers’ Research, then, is a good one: For these tariffs, should the court presume that Congress tends to delegate sweeping powers to presidents, or should the court guard against the risk that a president would take legislative powers that Congress never actually gave to him?
Posted at 6:07 AM