What the Oral Argument in the Tariffs Cases Clarified
After two and a half hours of oral argument in yesterday's tariff cases, I ended up roughly where I started. I am nearly certain that Justices Sotomayor, Kagan, and Jackson will vote to invalidate the tariffs and that Justices Thomas and Alito will vote to sustain them. I have Justice Kavanaugh as quite likely to vote to sustain them. Of the remaining three Justices, Gorsuch seems most likely to vote to invalidate, whereas Roberts and Barrett are difficult to handicap. Rather than parse the full transcript to justify or qualify those assessments, I want to use today's essay to suggest that the arguments that seemed most appealing to the seemingly undecided conservatives ultimately point to one of two possible outcomes: either the International Economic Emergency Powers Act (IEEPA) is an unconstitutional delegation of legislative power or it should be construed to afford the president less deference in application than the Justices seem to be contemplating.
Justice Gorsuch was very forceful in his questioning of Solicitor General John Sauer, who began with the proposition that neither the nondelegation doctrine nor the major questions doctrine applies when Congress delegates power to the president in matters concerning foreign affairs. Justice Gorsuch asked Sauer to suppose that Congress gave a blanket delegation of its power to regulate foreign commerce: "we're just tired of this legislating business. We're just going to hand it all off to the president." Sauer acknowledged that such a "wholesale abdication" would be unconstitutional. But that was the opening that Justice Gorsuch needed to extract a concession that the nondelegation doctrine does apply in matters involving foreign affairs. The question then is: what's the test? The intelligible principle test that applies with respect to domestic legislation is already very deferential, so any even more deferential test in foreign affairs would effectively be no nondelegation doctrine at all. But that's plainly unacceptable to Justice Gorsuch (and maybe other conservatives).
Is there a way out for the government? Sauer never pointed to one. His brief and most of his oral argument were dedicated to trying to show that the statutory phrase "regulate. . . importation" includes the power to impose tariffs. As I wrote here on Monday, that's plausible as a matter of text alone, but even committed textualists care about context, not just text alone, and here the context includes numerous other statutes in which Congress demonstrated that when it means to confer tariff authority it does so expressly.
Put that objection aside, however, and assume that a majority of the Justices are prepared to say that the statutory text provides the president tariff authority. What, according to the government, is the limit on that authority? Or to put that question in terms of the nondelegation doctrine, what intelligible principle limits that authority? Or if the test is even more deferential with respect to foreign affairs--say a "just barely intelligible principle" test--what teeth does that have?
The question takes on some urgency for the government because of a line of questioning that some of the Justices directed at the plaintiffs' lawyers. These Justices noted that IEEPA authorizes the president to shut down all trade with a major trading partner with China or even all foreign trade, full stop. The point of putting this to the plaintiffs' lawyers was to see why a Congress that granted the president such a sweeping power would not want to give the president the more modest power of imposing tariffs. Various answers were offered, including the familiar claim that the greater doesn't include the lesser and that tariff authority is not in fact a lesser included power within a trade ban.
That might or might not have been persuasive, but the premise of the question actually poses a serious problem for the SG: If the IEEPA delegates to the president sweeping power to ban all foreign trade, isn't that a violation of the nondelegation doctrine?
The best answer would be that the IEEPA contains an intelligible principle or at least a just barely intelligible principle: namely, presidents may exercise the powers it grants only insofar as necessary to address what IEEPA calls an "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, if the President declares a national emergency with respect to such threat." In other words, although IEEPA does not provide specific guidance about which tools to use or how, by restricting their use to genuine emergencies, it would avoid a nondelegation violation in the same way that other unguided delegations are permissible because they apply in a narrow domain.
But for that move to work, the delegated authority must actually be limited to emergencies. It would be permissible for the Court to grant the president some deference in determining whether there is an emergency to which the IEEPA tool selected is responsive--even considerable deference. However, review under a not-entirely-toothless standard would be necessary. At a minimum, review would have to be at least as searching as the Administrative Procedure Act's arbitrary-and-capricious standard.
To be clear, I'm aware that the president isn't an agency for APA purposes. I'm not saying the APA would apply. I'm saying some sort of review comparable to at least APA arbitrary-and-capricious review would be needed to avoid allowing the president to use the IEEPA in a manner that would render it a statute that violates the nondelegation doctrine.
And that brings us to the punch line: Trump should lose under this approach because his uses of tariffs are the very definition of arbitrary--on again, off again; applicable to countries with which the U.S. runs a trade surplus in order to ostensibly redress a trade imbalance; applicable to islands inhabited only by penguins; imposed in fits of pique; etc.
I doubt that a majority of this Court will be inclined to say any of that, however, and thus if the majority is concerned about delegation, it will have to find some other way to address that concern. The most likely path seems to run through the major questions doctrine, which, at least on some accounts, is a subconstitutional canon that serves as a kind of shadow of the nondelegation doctrine.