'Trading with enemies…': SC Justice Thomas grills Solicitor General Sauer over Trump’s tariff powers

Key Concepts

• Tariffing Power: The authority to impose taxes on imported goods.
• Tariff Equivalent Power: Authority similar to tariffing power, used in wartime to restrict trade with enemies.
• Trading with the Enemy Act (TWIA) of 1917: Legislation enacted during wartime to regulate trade with enemy nations.
• Non-Delegation Doctrine: A legal principle that limits Congress's ability to delegate its legislative powers to other branches of government.
• Foreign Context vs. Domestic Context: The application of legal doctrines, such as non-delegation, differs between matters concerning foreign relations and internal affairs.
• Youngstown Steel & Tube Co. v. Sawyer (Youngstown): A landmark Supreme Court case that established principles for presidential power, particularly in relation to Congress.
• United States v. Curtiss-Wright Export Corp. (Curtiss-Wright): A Supreme Court case that addressed presidential power in foreign affairs.
• Section 122 of the Trade Act of 1974 (AIPA): Legislation granting the President authority to regulate international trade.
• J.W. Hampton & Co. v. United States (J.W. Hampton): A Supreme Court case that established the modern non-delegation doctrine test.
• Gibbons v. Ogden: An early Supreme Court case concerning the scope of Congress's power to regulate commerce.
• Dames & Moore v. Regan: A Supreme Court case that affirmed broad presidential authority in foreign affairs.
• Yosida: A case that discussed limitations on the President's power to impose tariffs under the Trading with the Enemy Act.

Historical Basis of Presidential Tariffing Power

The argument presented emphasizes a historical precedent for presidents exercising a "tariffing power" or a "tariff equivalent power" during wartime to restrict trade with enemies. This historical understanding is crucial for interpreting the Trading with the Enemy Act (TWIA) of 1917. When TWIA was enacted, it was intended to codify this inherent presidential power to regulate importation.

• 1917: The enactment of TWIA deliberately evoked the existing presidential power to tariff trade with enemies. The power to regulate importation was seen as codifying an already recognized inherent presidential authority.
• 1933: When this power was expanded to peacetime contexts, where the president would not inherently possess such authority, the codification's meaning remained consistent with its original intent.

The Non-Delegation Doctrine in the Foreign Context

A key argument addresses the non-delegation doctrine, particularly as it applies to foreign affairs. The defense contends that this doctrine does not apply with the same rigor in the foreign context as it does domestically.

• Dames & Moore v. Regan: This case, citing Youngstown and its footnote 2 from Chief Justice Jackson's opinion, highlights that the domestic non-delegation doctrine's strict limitations do not apply to the same extent in the foreign context.
• Curtiss-Wright: While acknowledging broad dicta in Curtiss-Wright, the core holding is that the domestic non-delegation doctrine's force is diminished in foreign affairs.
• President's Inherent Authority: The argument is that when Congress confers tools on the president to address foreign emergencies, expanding his capacity, this falls within Youngstown's "zone one" of presidential power, where the president has independent constitutional authority.

Interpretation of "Regulate Importation" and Historical Precedent

The language "regulate importation," originating from TWIA and later appearing in the Trade Act of 1974 (AIPA), is argued to carry a specific historical connotation.

• Historical Sources: The defense points to historical sources, including Gibbons v. Ogden, suggesting that "regulate importation" has historically encompassed the power to tariff.
• AIPA's Enactment: It is argued that when AIPA was enacted, it was widely understood that "regulate importation" included the authority to impose sweeping global tariffs.
• Yosida Case: While the Yosida case offered some support, it also stated that future surcharges must comply with Section 122 of the Trade Act of 1974 and that TWIA did not authorize the president to "fix rates of duty at will without regard to statutory rates prescribed by Congress." The defense argues these limitations are read into other provisions of TWIA and do not negate the broader historical understanding of "regulate importation."

The Role of "Licenses" in AIPA

The discussion clarifies the use of the word "license" within AIPA.

• Noun, Not Verb: "License" is used as a noun, not a verb. The president may use "instructions, licenses, or otherwise" to accomplish the powers granted by the statute.
• Purpose of Licenses: Licenses are tools to accomplish the verbs permitted by the statute (e.g., nullify, void, prevent, or prohibit acquisition), not a mechanism for raising revenue.
• Hamilton v. Dillin: This case is cited to illustrate that while fees might be paid after a license is obtained, the primary function of the license itself is to enable the execution of the president's granted powers.
• Reliance on "Regulate Importation": The defense explicitly states their reliance is on the phrase "regulate importation," not on "licenses" as a revenue-raising mechanism.

Presidential Actions and Congressional Intent

The exchange touches upon historical presidential actions and congressional intent regarding tariffs.

• Nixon's Actions: It is noted that President Nixon used tariffs under a predecessor statute to AIPA.
• Congressional Use of "Tax" and "Regulate": A counter-argument is raised that when Congress intends to permit taxing and regulating, it typically uses both words. The defense disputes this, citing TWIA and Section 122 as examples where "regulate" implicitly includes tariffing power.

The "Major Questions Doctrine" and Non-Delegation

Justice Kagan raises a point connecting the defense's argument about independent presidential powers to the major questions doctrine and the non-delegation principle.

• Presidential Independent Powers: The defense's assertion that the president has independent constitutional powers in foreign affairs is seen as similar to their initial response regarding the major questions doctrine.
• Tariffs as Taxing Power: If tariffs are viewed as a taxing power, which is constitutionally delegated to Congress, then the argument for broad presidential delegation might not hold as strongly.
• J.W. Hampton: This case, a tariffs case, established the standard non-delegation test without creating a special rule for tariffs in the context of presidential concern with foreign relations. This is presented as a challenge to the defense's theory.
• Curtiss-Wright's Reiteration: The defense reiterates that Curtiss-Wright held that the non-delegation doctrine for domestic affairs does not apply with the same force in foreign affairs.

Synthesis and Conclusion

The core of the argument presented by the defense hinges on a historical interpretation of presidential power in foreign affairs, particularly concerning trade regulation. They contend that the authority to "regulate importation" has historically encompassed the power to impose tariffs, a power that predates and is distinct from explicit congressional delegation in every instance. The non-delegation doctrine, while stringent in domestic matters, is argued to be significantly less restrictive in the foreign context, allowing for broader presidential discretion. The defense relies on a lineage of cases, including Youngstown and Curtiss-Wright, to support the idea that the president possesses inherent constitutional authority in foreign relations that Congress can expand upon. The interpretation of statutory language, such as "regulate importation," is therefore viewed through this historical lens, suggesting that it carries a meaning that includes tariffing, even if the word "tariff" itself is not explicitly used in every relevant statute. The use of "licenses" is clarified as a procedural tool rather than a direct grant of revenue-raising authority.