After only approximately three and a half months, the Supreme Court issued their opinion in the Trump Tariff case. The speed, and the fact that opinion was released so early in the court’s term, should indicate both how urgent the case was, and how impactful.
IEEPA
Yes, this case is about Presidential tariffs, but Trump used the International Emergency Economic Powers Act (IEEPA) as justification for his claim of power to to impose tariffs.
The question presented is whether the International Emergency Economic Powers Act (IEEPA) authorizes the President to impose tariffs.
Learning Resources, Inc. v. Trump
This legislation was created in 1977 as a revamp of previous laws regarding allowing the President to regulate foreign commerce in an emergency.
The President determined that the drug influx had “created a public health crisis,” … and that the trade deficits had “led to the hollowing out” of the American manufacturing base and “undermined critical supply chains,” … The President declared a national emergency as to both threats, deeming them “unusual and extraordinary,” and invoked his authority under IEEPA to respond.
Learning Resources, Inc. v. Trump
President Trump sees both the drug trade and ??? out trade deficit as an “unusual and extraordinary” emergency. Seeing as both have been part of American life for decades, I’m not sure unusual and extraordinary is an accurate description. Regardless, the President invoked IEEPA, but went a step further by imposing tariffs, but there’s a problem with that.
Article I, Section 8, of the Constitution specifies that “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises.” The Framers recognized the unique importance of this taxing power—a power which “very clear[ly]” includes the power to impose tariffs. … And they gave Congress “alone . . . access to the pockets of the people.” The Federalist No. 48, p. 310 (J. Madison). The Framers did not vest any part of the taxing power in the Executive Branch.
Learning Resources, Inc. v. Trump
If the power to lay and collect, i.e. to impose taxes, is delegated to Congress and not the executive branch, where does the President claim to get this power?
The Government thus concedes that the President enjoys no inherent authority to impose tariffs during peacetime. It instead relies exclusively on IEEPA to defend the challenged tariffs. It reads the words “regulate” and “importation” to effect a sweeping delegation of Congress’s power to set tariff policy—authorizing the President to impose tariffs of unlimited amount and duration, on any product from any country.
Learning Resources, Inc. v. Trump
The President has no inherent authority to impose tariffs, but did Congress, through IEEPA, allow the President to do so? Not exactly. Yes, the President can regulate importation, but does that mean the imposition of taxes in the form of duties?
Delegation of Authority
While the court split 6-3, the justices divided the work in the writing of their opinion.
THE CHIEF JUSTICE, joined by JUSTICE GORSUCH and JUSTICE BARRETT, concluded in Part II–A–2:
The Court has long expressed “reluctan[ce] to read into ambiguous statutory text” extraordinary delegations of Congress’s powers.
Learning Resources, Inc. v. Trump
This question of ambiguous text was a serious point among the dissenters. Here Justices Gorsuch and Barrett, along with Chief Justice Roberts were reluctant to read into such texts, especially when it comes to the delegation of congressional powers.
These considerations apply with particular force where, as here, the purported delegation involves the core congressional power of the purse. Congressional practice confirms as much. When Congress has delegated its tariff powers, it has done so in explicit terms and subject to strict limits.
Learning Resources, Inc. v. Trump
Another topic of difference within the court was whether or not the power to tax is a core congressional power. I’ll dig deeper into this question in the sections on the Non-Delegation Doctrine. Since the power to tax is inherently congressional, the President has a hurdle he must surpass.
Accordingly, the President must “point to clear congressional authorization” to justify his extraordinary assertion of that power. … He cannot.
Learning Resources, Inc. v. Trump
And there’s the rub. There is congressional authorization for the President to regulate commerce in an emergency, but where is the authorization to impose tariffs?
THE CHIEF JUSTICE delivered the opinion of the Court with respect to Part II–B, concluding:
(a) IEEPA authorizes the President to “investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit . . . importation or exportation.” §1702(a)(1)(B). Absent from this lengthy list of specific powers is any mention of tariffs or duties. Had Congress intended to convey the distinct and extraordinary power to impose tariffs, it would have done so expressly, as it consistently has in other tariff statutes.
Learning Resources, Inc. v. Trump
IEEPA delegates a fairly lengthy list of power to the President in an emergency, but tariffs and duties are not among them. The President claims that the power to “regulate” importation naturally includes the power to impose tariffs, but does that phrase fill the void of the missing language?
The power to “regulate . . . importation” does not fill that void. The term “regulate,” as ordinarily used, means to “fix, establish, or control; to adjust by rule, method, or established mode; to direct by rule or restriction; to subject to governing principles or laws.” Black’s Law Dictionary 1156.
Learning Resources, Inc. v. Trump
Justices Kagan, Sotomayor, and Jackson agreed that IEEPA does not authorize the President to impose taxes, although they differ on the question of the “major questions doctrine” and legislative history. However, I do not have space to delve into those questions here.
Thomas Dissent
Justices Thomas and Kavanaugh published dissents to this opinion. Let’s start with Justice Thomas.
JUSTICE THOMAS, dissenting.
I join JUSTICE KAVANAUGH’s principal dissent in full. As he explains, the Court’s decision today cannot be justified as a matter of statutory interpretation. Congress authorized the President to “regulate . . . importation.” 50 U. S. C. §1702(a)(1)(B). Throughout American history, the authority to “regulate importation” has been understood to include the authority to impose duties on imports.
Learning Resources, Inc. v. Trump
And just where in our history is ‘regulate’ understood to include duties? Because 50 U.S.C. §1702(a)(1)(B) states:
(B) investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest by any person, or with respect to any property, subject to the jurisdiction of the United States; and.
50 U.S.C. §1702(a)(1)(B)
That means there’s a long list of things the President can do, but none of them include the power to tax. However, that doesn’t stop Justice Thomas from claiming it does.
The meaning of that phrase was beyond doubt by the time that Congress enacted this statute, shortly after President Nixon’s highly publicized duties on imports were upheld based on identical language. … The statute that the President relied on therefore authorized him to impose the duties on imports at issue in these cases.
Learning Resources, Inc. v. Trump
Previous legislation, the Trading with Enemies Act, was what President Nixon used to justify the tariffs mentioned. Justices Thomas and Kavanaugh both claim that since a previous court’s opinion did not find those tariffs unconstitutional, the word “regulate” was redefined to include the power to tax. And of course, no Supreme Court has ever gotten an opinion wrong, right? Dred Scott, Koramatsu, and Plessy v. Ferguson are just a few. Even this court recently overturned Roe v. Wade and Lemon v. Kurtzman. So I don’t think that argument holds up. Just because a previous court made up a definition of a word doesn’t make it true or constitutional.
Non-Delegation Doctrine
Justice Thomas also got into the question of the non-delegation doctrine, which focuses on core congressional powers.
The Constitution’s separation of powers forbids Congress from delegating core legislative power to the President. This principle, known as the nondelegation doctrine, is rooted in the Constitution’s Legislative Vesting Clause and Due Process Clause. Art. I, §1; Amdt. 5.
Learning Resources, Inc. v. Trump
I understand the Legislative Vesting Clause, but it seems that Justice Thomas is trying to limit the core legislative powers of Congress using the Fifth Amendment’s Due Process Clause.
Both Clauses forbid Congress from delegating core legislative power, which is the power to make substantive rules setting the conditions for deprivations of life, liberty, or property.
Learning Resources, Inc. v. Trump
Again, it seems Justice Thomas is trying to find a way to have his cake and eat it too. Congress delegates its legislative power every time it creates an executive agency with the power to make rules with the force of law. Since the Fifth Amendment’s Due Process Clause prohibits the deprivation of life, liberty, or property without due process of law, how can Congress set the conditions by which the Fifth Amendment is violated?
A better question is, what are the core legislative powers of Congress? Would they not be the powers vested in Congress by the Constitution? Justice Thomas goes on.
Neither Clause prohibits Congress from delegating other kinds of power. Because the Constitution assigns Congress many powers that do not implicate the nondelegation doctrine, Congress may delegate the exercise of many powers to the President. Congress has done so repeatedly since the founding, with this Court’s blessing.
Learning Resources, Inc. v. Trump
Remember, the non-delegation doctrine is not a part of the Constitution. It’s a “doctrine” created in whole cloth by the courts. It appears one they only bring out when it suits their agenda, since the courts seem to have no problem with Congress delegating its lawmaking powers to executive agencies.
That said, Justice Thomas does have a point. Congress has the power to both lay and collect taxes. Since collecting taxes is an executive function, not a legislative one, Congress passes laws one could say delegates the power to collect taxes to the President. That is a fulfillment of separation of powers.
The power to impose duties on imports thus does not implicate either of the constitutional foundations for the non-delegation doctrine. Hence, even the strongest critics of delegation, myself included, have recognized that regulations of foreign commerce might not be subject to ordinary non-delegation limitations. … So long as Congress complies with other constitutional limitations, it can delegate this power.
Learning Resources, Inc. v. Trump
Yes, Congress could pass a law that allows the President to impose duties on imports, and in fact they have several times. But there’s nothing in the language of IEEPA that delegates such power. After all, in the long list of powers Congress gave the President in IEEPA, nowhere is the power to impose taxes, tariffs, or duties.
Kavanaugh Dissent
Justice Kavanaugh seemed to try to read into IEEPA something that is not in the language.
The sole legal question here is whether, under IEEPA, tariffs are a means to “regulate . . . importation.” Statutory text, history, and precedent demonstrate that the answer is clearly yes: Like quotas and embargoes, tariffs are a traditional and common tool to regulate importation.
Learning Resources, Inc. v. Trump
I would beg to differ. The word “regulate” is defined as:
To control or direct according to rule, principle, or law.
Regulate – The Free Legal Dictionary
To claim that the statutory text shows that the power to impose tariffs was a part of regulating importation just isn’t true.
(B) investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest by any person, or with respect to any property, subject to the jurisdiction of the United States; and.
50 U.S.C. §1702(a)(1)(B)
If Congress went through the effort of listing numerous ways the President could be involved in foreign commerce, you would think that if they meant to include imposing tariffs, they would have said so. As for Justice Kavanaugh’s claim that history shows that the power to regulate including the power to tariffs, I point to the fact that Congress has, on several occasions, specifically included that power to impose tariffs and duties when delegating powers to the President. So again, if Congress wanted to delegate to the President the power to impose tariffs, why didn’t they say so in IEEPA?
In 1971, President Nixon imposed 10 percent tariffs on almost all foreign imports. He levied the tariffs under IEEPA’s predecessor statute, the Trading with the Enemy Act, which similarly authorized the President to “regulate . . . importation.” The Nixon tariffs were upheld in court.
Learning Resources, Inc. v. Trump
And we all know that the members of the courts never get anything wrong.
The Nixon tariffs persuasively demonstrate that Members of Congress and the public would have understood the phrase “regulate . . . importation” to include tariffs when IEEPA was enacted in 1977.
Learning Resources, Inc. v. Trump
On the contrary, this only shows that the court understood the phrase “regulate… importation” included the power to tariff. Yet they show no legal or constitutional basis for such an understanding other than prior court’s baseless assertions.
Conclusion
So what can we conclude from this decision? First of all, everyone apparently agrees that the President does not have an inherent power to impose tariffs. So the real question comes down to: Does the IEEPA authorize the President to impose tariffs? According to six of the justices, it does not.
Held: IEEPA does not authorize the President to impose tariffs.
Learning Resources, Inc. v. Trump
The three dissenting justices claimed that the power to ‘regulate’ included the power to impose tariffs, even though that langue does not exist in the law. They claim that when the statue listed nine specific things the President can do under this law, Congress just assumed ‘regulate’ included imposing tariffs. And as proof, they point to times when the courts agreed with the President that ‘regulate’ included the power to tax to prove that was Congress’ intent. They also, apparently, completely ignored the times when Congress specifically delegated the power to impose tariffs to the President.
Where does this leave the country? First off, remember that courts have neither FORCE nor WILL, but merely judgment, and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments (Federalist #78). Meaning the court can complain all it wants, but it cannot force the President to comply. Should the President ignore this decision, it could be grounds for his impeachment. Then again, there are other laws under which the President can impose tariffs, though they would be limited and take longer to put into effect.
While there have been many foreign policy gains from these illegal tariffs, there has also been a lot of harm. Will there be a redress of these grievances? Will the Treasury refund tariffs collected under IEEPA to the importers? And what about those who paid the increased costs? Will they get a refund?
I guess the takeaway is that it appears the court got it right. The majority followed the law and the Constitution rather than the mistaken opinions of the past.
