Some Major Questions for Wednesday's Oral Argument in the Tariff Case
On Wednesday, the Supreme Court will hear oral argument in two consolidated cases that present the question whether President Trump's imposition of tariffs under the International Emergency Economic Powers Act (IEEPA) was valid.
A provision of the IEEPA grants the president the power to declare a national emergency to address "any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States." The Solicitor General (SG) argues in his principal brief that the president validly declared emergencies to impose: "reciprocal" tariffs on every country in the world (and those Antarctic penguins) to address the ostensible emergency of persistent trade deficits; and the on-again-off-again tariffs on Canada, China, and Mexico to address the ostensible emergency caused by the flow of fentanyl into the U.S.
The SG's brief suggests that a presidential declaration of a national emergency is not subject to any judicial review as a nonjusticiable political question. It says (at page 40) that there is a "lack of judicially manageable standards" for reviewing an emergency declaration. That is one of the tests for a political question. However, the SG's brief presents no argument for a political question holding, just a single citation of a case in which the Court found that the CIA Director's decision to dismiss an employee was non-reviewable. The SG's brief then quickly moves on to say that if the president's emergency declaration is reviewable at all, it should receive substantial deference.
I do not think the most straightforward path to a loss for the Trump administration runs through invalidation of the emergency declarations, but that is a plausible means for the administration to lose. Even granting deference, a "persistent" trade deficit is, by definition, not an emergency. Fentanyl could be seen as posing a risk of grave harm, but here too, the problem has persisted for years and, in light of a recent and welcome decline in fatal opioid overdoses, seems to be easing up. Moreover, Canada has nothing to do with any emergency connected to fentanyl. It is thus difficult to see how the Court could validate Trump's emergency declarations without giving total deference to him.
It is possible that the Court could grant such total deference, but doing so would not only validate his erratic and irresponsible tariffs: it would also open the door to an argument the Trump administration might make in defending the removal of Lisa Cook from the Federal Reserve Board of Governors. In that case (which SCOTUS will hear later in the current term), the government has not argued that the president's determination that there is "cause" to remove a Fed Governor is completely unreviewable--at least not yet. However, its contention that unproven allegations of unrelated financial misconduct constitute cause, even absent any due process, borders on a demand for total deference. That would effectively destroy Fed independence.
In any event, the plaintiffs have a strong case that the IEEPA simply doesn't authorize the imposition of tariffs. I'll get to that in a moment, but first let's look at the SG's argument for why it does authorize tariffs. When the president has declared an emergency, the IEEPA authorizes him to
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.
I have put in bold the words of the statute on which the government relies. Strung together, they say that the president may regulate any importation of any property in which any foreign country or a national thereof has any interest. A tariff, the SG argues, is a form of regulation. Thus, the tariffs are valid. Presto!
That's not a crazy interpretation of the statute if read in isolation from the rest of the U.S. Code and U.S. history. However, as the plaintiffs and their amici argue, it is plainly wrong in context. The IEEPA never uses the term "tariff," "duty," "import fee," "tax," or any other direct synonym. The plaintiffs' point is not, as the SG complains, that Congress failed to use any magic words. The point is that when Congress means to delegate tariff authority, it knows how to do so. Various other statutes Congress has enacted expressly grant tariff authority to the president, but crucially, when they do, they contain both substantive and procedural constraints (such as time limits). Allowing the president to circumvent those constraints via the IEEPA makes no sense of the scheme of delegation taken as a whole.
The SG responds by arguing that the IEEPA, as he construes it, does not render the statutes that grant restricted tariff authority nugatory: those statutes apply in non-emergencies, he says. But notice what happens when this claim is combined with the SG's claim that the president's declaration of an emergency gets substantial deference. I am dubious that the IEEPA grants any tariff authority, but even if it does, the amount of deference that courts would need to give the president to validate Trump's emergency proclamations is so great as to render the limits on expressly granted tariff authority in the other statutes meaningless.
Another way to understand the plaintiffs' argument that the IEEPA does not delegate tariff authority is through the major questions doctrine (MQD): If Congress meant to delegate sweeping tariff authority that could disrupt the entire global economy, it would have said so.
But is the MQD applicable here? In his concurrence last Term in FCC v. Consumers' Research, Justice Kavanaugh contended that the MQD does not apply
in the national security or foreign policy contexts, because the canon does not reflect ordinary congressional intent in those areas. On the contrary, the usual understanding is that Congress intends to give the President substantial authority and flexibility to protect America and the American people—and that Congress specifies limits on the President when it wants to restrict Presidential power in those national security and foreign policy domains.
Notably, none of Justice Kavanaugh's colleagues joined in his Consumers' Research concurrence, but even if it did speak for the Court, it does not foreclose MQD reasoning in the tariff cases because here Congress has in fact "specifie[d] limits on the President" in the statutes that expressly grant tariff authority.
Put differently, one doesn't need to invoke the MQD as a so-called substantive canon that implements the constitutional nondelegation doctrine via a statutory interpretation tool. Instead, in this context, the MQD operates only as an interpretive canon to reveal what Congress likely intended in the IEEPA. We can indulge Justice Kavanaugh's presumption that congressional delegations to the president in matters of national security and foreign policy should be broadly construed absent specific limitations; here, however, there are specific limitations, so long as one reads the IEEPA in the context of the U.S. Code as a whole--as even committed textualists agree one should read a federal statute.
Accordingly, the Court should invalidate Trump's assertion of what is essentially unlimited and arbitrary tariff authority under the IEEPA. Will it? That's a different question.
The SG's opening brief contains not only legal arguments but also what is best described as over-the-top Trumpy rhetoric. The opening two paragraphs include these remarkable nuggets of nonsense:
The President has stated that "[o]ne year ago, the United States was a dead country, and now, because of the trillions of dollars being paid by countries that have so badly abused us, America is a strong, financially viable, and respected country again."
The President has made clear that "[I]f the United States were forced to pay back the trillions of dollars committed to us, America could go from strength to failure the moment such an incorrect decision took effect."
The President observes that “[t]hese deals for trillions of dollars have been reached, and other countries have committed to pay massive sums of money," . . . which, he projects, could reach $15 trillion. The President has emphasized: “If the United States were forced to unwind these historic agreements, * * * the economic consequences would be ruinous, instead of unprecedented success."
One might wonder why the SG chose to lead with a demonstration that the president is an economically illiterate blowhard who does not understand that tariffs are paid by American importers and thus consumers, not foreign countries, and makes up absurdly large numbers to claim that his ruinous policies are somehow good for the country. Wouldn't a wiser litigation strategy be to whitewash the president's blatant economic foolishness in more or less the same way that in defending the Travel Ban in the first Trump administration, the SG successfully whitewashed his blatant Islamophobia? Why highlight the irrationality of the very policy being defended?
Perhaps because quoting Trump’s bombast is meant less as an exercise in persuasion than in intimidation—a warning to the Court of the chaos and retaliation it risks if it resists him. The SG is reminding the Court that the authority to impose tariffs arbitrarily and randomly is of central importance to the mad king. By quoting Trump's bombastic idiocy, the SG is saying, in effect: We are ruled by a maniac whose wrath you will incur if you dare to cross him regarding the only policy (other than racism) to which he has a deep and longstanding commitment.
Whether that threat will work remains to be seen. We will get our first clues on Wednesday.
-- Michael C. Dorf