In yesterday's decision in VOC Selections Inc. v. U.S., the Court of International Trade (the equivalent of a U.S. district court, with special jurisdiction over trade-related matters) held the President's imposition of tariffs to be unauthorized by statute, and thus illegal. As I read the opinion, it ultimately rests on a conclusion that Congress did not delegate unlimited tariff authority to the President, but this conclusion arises in part from a conclusion that, if Congress had so delegated authority, the delegation would be unconstitutional. From the opinion:
A. An Unlimited Delegation of Tariff Authority Would Be Unconstitutional
The Constitution provides that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States.” U.S. Const. art. 1, § 1. Congress is empowered “[t]o make all Laws which shall be necessary and proper for carrying into Execution” its general powers. Id. § 8, cl. 18. The Constitution thus establishes a separation of powers between the legislative and executive branches that the Framers viewed as essential to the preservation of individual liberty. See, e.g., The Federalist No. 48 (James Madison). To maintain this separation of powers, “[t]he Congress manifestly is not permitted to abdicate or to transfer to others the essential legislative functions with which it is thus vested.” Pan. Refining Co. v. Ryan, 293 U.S. 388, 421 (1935); see also Marshall Field & Co. v. Clark, 143 U.S. 649, 692 (1892).
The parties cite two doctrines—the nondelegation doctrine and the major questions doctrine—that the judiciary has developed to ensure that the branches do not impermissibly abdicate their respective constitutionally vested powers. Under the nondelegation doctrine, Congress must “lay down by legislative act an intelligible principle to which the person or body authorized to fix such [tariff] rates is directed to conform.” J.W. Hampton, Jr., 276 U.S. at 409 (1928); see also Pan. Refining, 293 U.S. at 429–30. A statute lays down an intelligible principle when it “meaningfully constrains” the President’s authority. Touby v. United States, 500 U.S. 160, 166 (1991); see also Fed. Energy Admin. v. Algonquin SNG, Inc., 426 U.S. 548, 559–60 (1976). Under the major questions doctrine, when Congress delegates powers of “‘vast economic and political significance,’” it must “speak clearly.” Ala. Ass’n of Realtors v. HHS, 594 U.S. 758, 764 (2021) (quoting Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014)); Indus. Union Dep’t, AFL-CIO v. Am. Petrol. Inst., 448 U.S. 607, 645 (1980). The doctrine applies in “‘extraordinary cases’ . . . in which the ‘history and the breadth of the authority that [the executive branch] has asserted,’ and the ‘economic and political significance’ of that assertion, provide ‘a reason to hesitate before concluding that Congress meant to confer such authority.’” West Virginia v. EPA, 597 U.S. 697, 721 (2022) (quoting FDA v. Brown & Williamson Tobacco Co., 529 U.S. 120, 159–60 (2000)); see also Biden v. Nebraska, 600 U.S. at 501.
Plaintiffs and some Amici argue that the Government’s interpretation transforms IEEPA into an impermissible delegation of power because “[t]he President’s assertion of authority here has no meaningful limiting standards, essentially enabling him to impose any tariff rate he wants on any country at any time, for virtually any reason.” Pls.’ V.O.S. Mots. at 25; see also Pls.’ Oregon Mots. at 19; Pls.’ V.O.S. Reply at 22. Similarly, Plaintiffs suggest that Congress’s use of the words “regulate . . . importation” does not indicate the clear mandate necessary to delegate “such unbounded authority to the President to make such decisions of ‘vast economic and political significance,’” as the wide-scale imposition of tariffs. Pls.’ Oregon Mot. at 18; see also Pls.’ V.O.S. Reply at 17; Inst. for Pol. Integrity’s Amicus Br. at 16–18. The Government counters that IEEPA contains sufficient limitations: the President must declare a national emergency, the emergency expires after one year unless renewed, the emergency must be declared with respect to an “unusual and extraordinary threat,” and the powers must extend only to property in which a foreign country or foreign national has an interest. Gov’t Resp. to V.O.S. Mots. at 28–29.
The separation of powers is always relevant to delegations of power between the branches. Both the nondelegation and the major questions doctrines, even if not directly applied to strike down a statute as unconstitutional, provide useful tools for the court to interpret statutes so as to avoid constitutional problems. These tools indicate that an unlimited delegation of tariff authority would constitute an improper abdication of legislative power to another branch of government. Regardless of whether the court views the President’s actions through the nondelegation doctrine, through the major questions doctrine, or simply with separation of powers in mind, any interpretation of IEEPA that delegates unlimited tariff authority is unconstitutional.
This discussion seems to assume several points which are not obvious:
(1) that Congress cannot delegate unlimited authority over a particular topic to the President. True, this is what the Panama Refining case said, but recent originalist-oriented scholarship by, among others, Nicholas Bagley and Julian Mortenson (here) and Nicholas Parrillo (here) have called that into question as a matter of the Constitution's original meaning. There is also considerable originalist scholarship on the other side (e.g., here by Ilan Wurman), but I'm curious as to what the pro-delegation scholars think about this decision.
(2) assuming a rule against delegation in the domestic context under Panama Refining, that the rule applies to foreign affairs matters and, in particular, tariffs. The specific holding of U.S. v. Curtiss-Wright Export Co. (which does not appear to be discussed in the VOC opinion) is that the Panama Refining version of the nondelegation doctrine does not apply to trade embargoes due to the President's broad authority in foreign affairs. I am very critical of the Curtiss-Wright decision on originalist grounds (see Chs. 1-2 of The Constitution's Test in Foreign Affairs), but the court seems to owe us some explanation as to why it doesn't apply here.
(3) even assuming a rule against full delegation in theory applies to tariffs, that courts have authority to override Congress' determinations on the matter. Justice Scalia, writing for the Court in Whitman v. American Trucking Associations, said in effect that courts should not feel qualified to override a determination of Congress as to delegation. Whitman is also not adequately discussed in the VOS opinion.
To be clear, I think there's a good originalist argument to be made that the court's opinion is correct, and that Curtiss-Wright, Whitman, and the Bagley/Mortenson/Parrillo view of delegation are all wrong. But I would like to see it made directly.
Also, I think the case would be much more easily resolved under the major questions doctrine, which the opinion invokes at several points but does not forcefully apply. The short answer might be that the IEEPA (the relevant statute) is ambiguous as to whether it authorizes the President to impose tariffs, and — because the decision to impose tariffs is a major policy question — an ambiguous statute should not be read to make such an authorization. And, in my view, the major questions doctrine is consistent with originalism.
Posted at 6:34 AM