I want to call two fine posts on tariffs at SCOTUSBlog to your attention. The first, by Adam White, considers the recently executive-imposed tariffs in the context of the Court’s responsibilities:
When it comes to diplomatic and national security powers, the court often defers to the president “as the sole organ of the federal government in the field of international relations.” If justices see the Trump tariffs as mainly a matter of foreign policy, and if they see IEEPA’s “regulate” provision as ambiguous, then perhaps they will give substantial deference to the president’s interpretation.
Then again, another way to see this case would be, first and foremost, as a case about Congress’ “power of the purse.” As we have seen in recent cases involving the Consumer Financial Protection Bureau and the Federal Communications Commission, Congress can delegate substantial fiscal power to the executive branch. (In CFPB v. Community Financial Services Association, it was perpetual funding from the Federal Reserve to the CFPB; in FCC v. Consumers’ Research, it was the power to impose fees on the telecommunications services industry.) Yet Trump’s highly publicized approach to tariffs may give the justices pause. The sheer enormity of many of these new taxes, the erratic changes he makes to them, their immediate effects on U.S. companies and consumers, and his repeated identification of tariffs as revenue for domestic policy programs make this at least as much a matter of domestic policy as it is a matter of foreign policy.
The second, from Amy Howe, analyzes the SCOTUS’s likely decision:
The Supreme Court on Wednesday seemed skeptical of President Donald Trump’s authority to impose sweeping tariffs in a series of executive orders earlier this year. During more than two-and-a-half hours of oral arguments, a majority of the justices appeared to agree with the small businesses and states challenging the tariffs that they exceeded the powers given to the president under a federal law providing him the authority to regulate commerce during national emergencies created by foreign threats.
She proceeds to consider the justices’ views seriatim.
My own personal view, not rooted in existing law or precedent, is that the justices should rule that the Congress does not have the authority to delegate its own Constitutional responsibilities to any other branch of government. That won’t happen. The members of Congress want to delegate all of their Constitutional responsibilities to the executive and judicial branches so they can devote fulltime to their core responsibilities: running for re-election and posturing.,
I think they’re likely to limit the president’s authority to impose “emergency” tariffs somehow that does not include requiring the federal government to refund tariffs already collected.
At any rate read the two linked posts for background on the case. They’re highly informative.
Dave Schuler: My own personal view, not rooted in existing law or precedent, is that the justices should rule that the Congress does not have the authority to delegate its own Constitutional responsibilities to any other branch of government.
Nearly all laws delegate power in one form or another. While Congress enacts taxes, the Executive collects them. At the founding, Congress passed laws granting pensions for invalided veterans. (The original 1792 and 1793 Acts were ruled unconstitutional by the courts. See Hayburn’s Case.) The result created an administrative agency, which could set criteria to reach decisions on pension applications. Or take regulatory power. The Congress passes a law that restricts dumping dangerous pollutants into rivers and streams, but grants the Executive the power to determine what constitutes a dangerous pollutant based on scientific findings. The alternative, that Congress would have to regulate each and every pollutant, when precious few in Congress are scientists, and when new chemicals are invented every day, would result in the inability of the Congress to pass laws that could effectively protect rivers and streams.
There is little doubt that Congress has delegated too much power to the Executive, but the line to be drawn is not without its own chaotic margins. That’s why the Supreme Court has improvised a so-called Major Questions Doctrine.
Sure, the President needs flexibility during an emergency, but the Founders certainly didn’t mean to allow a single person to upend the entire global economic system. Of note, and of which the Founders were very aware, tyrants have often legally seized control by using emergency powers. Caesar was made dictator by a vote of the Senate.