WEBVTT

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We will hear argument this morning in case 24

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-1287, learning resources versus Trump, and the

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consolidated case. General Sauer. Mr. Chief Justice,

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and may it please the Court. On April 2nd, President

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Trump determined that our exploding trade deficits

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have brought us to the brink of an economic and

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national security catastrophe. He further pronounced

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that the traffic of fentanyl and other opioids

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into our country has created a public health

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crisis, taking hundreds of thousands of American

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lives. President Trump has declared that these

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emergencies are country -killing and not sustainable,

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that they threaten the bedrock of our national

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and economic security, and that fixing them will

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make America a strong, financially viable and

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respected country again. Due to IEPA tariffs,

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President Trump has negotiated agreements worth

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trillions of dollars with major trading partners,

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including most recently China. Unwinding those

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agreements, he warns, would expose us to ruthless

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trade retaliation by far more aggressive countries

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and drive America from strength to failure with

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ruinous economic and national security consequences.

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In games and more against Reagan, this court

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held that IEPA's sweeping and unqualified language

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grants the president's actions the strongest

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presumption of validity and the widest latitude

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of judicial interpretation. Yet plaintiffs argue

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that tariffs, IEPA's least blunt and most nimble

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tool, are virtually the only tool that Congress

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did not grant the president to deal with foreign

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emergencies. That is wrong. The phrase regulate

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importation plainly embraces tariffs, which are

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among the most traditional and direct methods

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of regulating importation. And plaintiffs can

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see that IEPA authorizes quotas and other tariff

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equivalents. The major questions doctrine does

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not apply here. IEPA confers major powers to

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address major problems on the president, who

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is perhaps the most major actor in the realm

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of foreign affairs. And the non -delegation doctrine

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casts no doubt on IEPA because Congress may assign

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the president broad authority regarding the conduct

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of foreign affairs where he enjoys his own inherent

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Article II powers. I welcome the court's questions.

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Would you spend a few minutes on why exactly

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the major question doctrine doesn't apply to

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the president in this case? Yes, Justice Thomas,

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and I may make two or three points on that front.

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First of all, though the major questions doctrine

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may apply to the president in other contexts,

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specifically in the foreign affairs context where

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he has his own inherent article to authority,

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it's a particularly poor fit to apply the major

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questions doctrine, and that's for at least two

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reasons. First of all, just as a matter of kind

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of common sense interpretation, one would expect

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Congress to confer major powers on the President

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to address major, you know, sort of foreign –

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international crises, so to speak, in foreign

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arising emergencies, that that's just sort of

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a natural common sense thing you expect Congress

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to do. And in fact, you know, Justice Jackson,

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in his Youngstown opinion, addressed this very

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situation in pages 652 and 653, when he says,

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this is the system within our – or this is the

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procedure within our constitutional system that

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we have developed to strike the balance. You

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know, what Dames and Moore described as the never

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-ending tension – between the need for the executive

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to address, have a robust power to address emergencies

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and to subject to checks and balances, what our

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constitution system has devised to address that

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particular problem, that never -ending tension,

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is the system where Congress confers broad and

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necessary powers in advance and subjects them

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to ongoing political oversight, which is exactly

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what you see in IEPA. So that's one reason. One

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reason, just as a matter of common sense interpretation,

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you would expect Congress to grant major powers

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to the president who has his own broad range

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of major authority. the article, inherent article

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to authority in this context. And that is butchers

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by the second point. Can I interrupt you, General,

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there? And I know that you have a second question,

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and I want to let you get to that. But just on

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that first reason, it seemed to depend a lot

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on the president's inherent Article II powers.

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And I'm wondering what exactly, which powers

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you're speaking of there. Because tariffs, one

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would naturally think, are the power to impose

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taxes, the power to regulate foreign commerce.

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These are not things that are thought of as Article

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II powers. They are quintessential Article I

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powers. So what kind of Article II powers are

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you relying on? when you gave the answer about

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major questions to Justice Thomas. I would refer

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to what the court said, for example, in Eagan

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Department of Navy against Eagan. That's a generally

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accepted view that the president has broad authority

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in the foreign affairs realm. There's been debates

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about exactly how far it goes and how to draw

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the boundary between the president and Congress.

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But Eagan, Garamendi, other cases, Curtis Wright,

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the court has recognized the president has broad

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inherent authority to address foreign situations,

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foreign affairs, foreign policy, including foreign

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arising emergencies. Now we don't that he has

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at least in peacetime inherent tariffing authority,

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what we have here is two layers. There's the

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layer, the bedrock of the president's inherent

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Article II powers, and layered on top of that

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is a sweeping delegation of authority from Congress.

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When you put those two things together, Congress

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is saying you have inherent powers to address

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international emergencies, and we're conferring

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you on you the tools, including Article I tools,

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like, for example, the power to regulate foreign

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commerce. I want to make a very important distinction

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here. We don't contend that what's being exercised

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here is the power to tax. It's the power to regulate

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foreign commerce. These are regulatory tariffs.

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They are not revenue -raising tariffs. The fact

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that they raise revenue is only incidental. The

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tariffs would be most effective, so to speak,

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if no person ever paid them, if they'd achieved

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their goals. three times, which surprises me

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a little because the court in Dames and Moore

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went out of its way to say that it was issuing

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a very narrow decision that pretty much expected

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to apply only in this case. Just a few quotes.

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It said, decisions in this area have been rare,

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episodic, and afford little precedential value

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for subsequent cases. Again, we lay down no general

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guidelines covering other situations not involved

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here and confine the opinion only to the very

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questions necessary to decision of this case.

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And it ended the opinion. It said, finally, we

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reemphasize the narrowness of our decision. Now,

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this issue in Dames and Moore was a different

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provision of IEBA, not at issue here, and certainly

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did not concern tariffs. So I don't quite understand

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how you can get as much out of Dames and Moore

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as you're trying to get. Maybe I could put it

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this way. You don't dispute that Dames and Moore

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is, as you state, a narrow opinion. However,

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it addressed certain principles that we think

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are equally applicable here. For example, the

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interpretive principle. Dames and Moore held,

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and again, it was the power to nullify and void,

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not the power to regulate. But it's in the very

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same sentence, in the very same statute. And

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the court quoted the First Circuit opinion and

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said, look, this is sweeping unqualified language,

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which it didn't disagree with. And then it said,

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this particular provision where Congress has

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given these broad verbs, I mean, regulate is

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a capacious verb, admittedly. So are nullify,

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so are void. So are, frankly, all the other verbs

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there in the language of IEPA. The way the court

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thought about it is we are looking at this through

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the lens of Justice Jackson's opinion in Youngstown.

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And the court held specifically that these verbs

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placed the president in Youngstown's own one.

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The court held that he was subject to the widest

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latitude of judicial interpretation that he received

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the strongest presumption of validity. I just

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don't understand this argument. It's not an article.

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It's a congressional power, not a presidential

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power to tax. And you want to say tariffs are

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not taxes, but that's exactly what they are,

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degenerating money from American citizens' revenue.

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And you say it's incidental to the regulatory

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purpose. But I don't see how a quota is equivalent

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to revenue raising. A quota sets a limit to what

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you can import in, but it doesn't generate revenue.

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I don't understand this argument, that it's equivalent

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or that foreign powers or even an emergency can

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do away with the major questions doctrine. Didn't

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we in the Biden case recently say an emergency

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can't make clear what's ambiguous? As to that

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point, I believe the court has never applied

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the major questions doctrine in the foreign policy

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context. We have never applied it to foreign

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affairs, but this is a tariff. This is a tax.

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If I may, it's a foreign facing. regulation of

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foreign commerce. That's everything. So Biden

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could have declared a national emergency and

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global warming and then gotten his student forgiveness

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to not be a major questions doctrine? I don't

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think he could have gotten student loan forgiveness.

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Why? It's global. It's foreign facing. We need

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all of these things to to face, to tax fossil

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fuel or to do something else? That's all Biden

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would have had to do with any of his programs?

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Let me put it this way, if I may. Is just declare

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some foreign -facing purpose? If I may, maybe

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I can articulate it this way. The power to impose

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tariffs is a core application of the power to

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regulate foreign commerce, which is what the

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phrase regulate importation in IEPA naturally

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evokes. Not the power to tax. Could you tell

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me why it is that when Congress intended to permit

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a president to regulate by imposing tariffs,

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it's always used tariff and regulate. I have

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about 16 laws in the past that when Congress

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intended regulate to mean taxing, that it used

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taxes simultaneously. But it didn't here. Respectfully,

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this court came to the opposite conclusion, if

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I may, in Algonquin, where the phrase would not

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include duties. Well, we did something in Algonquin.

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It was in the duties section, unlike here. It

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was paired with questions about decreasing tariffs.

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and increasing tariffs. So it's a very different

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statute than the one at issue here. But the governing

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language, admittedly the references to duties

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in section 232A, 232C does not refer to them

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and the court didn't refer to 232A at all or

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the phrases duties or tariffs as analysis. What

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it held was the phrase adjust imports, which

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includes a verb that's narrower. But it was in

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the context of activities that had to do with

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raising and lowering duties. Here, the verbs

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that a company regulate have nothing to do with

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raising revenues in the form of taxes. And, counsel,

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Algonquin wasn't a textualist opinion. Do you

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agree with that? In other words, the analysis

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that the court was using there was really key

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to the legislative history. of that statute,

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and it wasn't as though we were doing an interpretation

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of the word adjust. I disagree with that. I think

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you read the opinion. First it talks about plain

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meaning, then it talks about statutory context,

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and then it goes on to legislative history. So

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it was all three of those. And the conclusion

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it came to, it directly addressed and rejected

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the argument that the DC Circuit had accepted

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in that case, which is that when Congress wants

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to delegate the authority to tariff, it uses

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a consistently explicit and well -defined approach,

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which is to use these magic words, tariff, tax,

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imposed, and so forth. No, Congress is not bound

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to use that particular formulation when it wants

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to confer this power. Let me ask you about the

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premise of your argument, which you sort of started

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at the beginning, saying that one would expect

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for Congress to give the president a broadly

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way in this kind of foreign affairs context.

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And I guess I'm wondering whether you also don't

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have to contend with the actual purpose of AIIPA.

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in making this argument because, as I understand

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it, that the AIIPA was designed and intended

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to limit presidential authority, that Congress

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was concerned about how presidents had been using

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the authority under the predecessor statute,

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TWA, and it's pretty clear that Congress was

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trying to constrain the emergency powers of the

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president in AIIPA. So it seems a little inconsistent.

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to say that we have to interpret a statute that

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was designed to constrain presidential authority

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consistent with an understanding that Congress

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wanted the president to have essentially unlimited

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authority. I disagree with that, because what

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Congress actually did as - What part do you disagree

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with? I'm sorry. Well, I disagree with the notion

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that they were trying to constrain the breadth

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of the actions the president may take when it

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comes to this particularly narrow domain, which

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is various regulations of transactions - But

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how can you disagree with that? I mean, the history

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is what it is. Because they made a series of

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changes to AIIPA that relate to the triggering

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conditions, so to speak, and the procedures that

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apply, but they did not change the language -

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Right, but what was the intent? intent of Congress

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in changing the language, wasn't it to constrain

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presidential authority in this area? To constrain

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it in the triggering conditions and the procedures

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that apply. The triggering conditions and procedures

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that apply are a means to constrain. That is

00:13:39.529 --> 00:13:41.850
how they went around about constraining. But

00:13:41.850 --> 00:13:45.570
my point is that Congress enacted this legislation

00:13:45.570 --> 00:13:49.330
with the intent of preventing the president from

00:13:49.330 --> 00:13:51.909
having unlimited powers in this area. And you're

00:13:51.909 --> 00:13:54.610
asking us to now interpret that statute consistent

00:13:54.610 --> 00:13:57.230
with an understanding that Congress wanted to

00:13:57.230 --> 00:14:00.710
allow the president to do pretty much whatever

00:14:00.710 --> 00:14:03.309
he wanted in this area. Congress took the language

00:14:03.309 --> 00:14:05.830
from Tuia. It enacted the very same language,

00:14:05.929 --> 00:14:07.590
and most importantly here, the very same phrase,

00:14:07.750 --> 00:14:10.950
regulated importation, in IEPA. And therefore,

00:14:11.149 --> 00:14:12.929
the natural inference is Congress did not intend

00:14:12.929 --> 00:14:15.129
to change the scope of authority, the powers,

00:14:15.230 --> 00:14:17.009
the tools the president can exercise. Did any

00:14:17.009 --> 00:14:19.870
president under Tuia, did any president under

00:14:19.870 --> 00:14:23.730
Tuia use that language to impose tariffs? Well,

00:14:23.809 --> 00:14:25.429
yes. President Nixon's 1971 terms were visibly.

00:14:25.429 --> 00:14:28.350
Not a tariff. That wasn't a tariff. It was a

00:14:28.350 --> 00:14:31.409
licensing agreement during wartime. It was a

00:14:31.409 --> 00:14:35.259
specific thing. A tariff, I'm talking about.

00:14:35.299 --> 00:14:37.860
I'm referring to President Nixon's 1971 tariff

00:14:37.860 --> 00:14:39.720
study. Oh, I'm sorry. Excuse me. Yes, I thought

00:14:39.720 --> 00:14:42.100
you meant Lincoln. Not only that, but then it

00:14:42.100 --> 00:14:44.580
was upheld by the Court of Appeals with exclusive

00:14:44.580 --> 00:14:46.620
jurisdiction under this very phrase, regular

00:14:46.620 --> 00:14:48.100
importation. Can I back you up just a second?

00:14:48.159 --> 00:14:51.240
I'm sorry. You're talking so quickly. President

00:14:51.240 --> 00:14:54.879
Nixon did not rely on Tuia initially to impose

00:14:54.879 --> 00:14:56.960
the tariffs. Is that correct? I understood that

00:14:56.960 --> 00:14:59.379
was just a litigating position that he took once

00:14:59.379 --> 00:15:01.759
it was challenged. That was not his initial...

00:15:01.980 --> 00:15:04.600
I wouldn't put it that way, because he has a

00:15:04.600 --> 00:15:07.039
broad invocation. I'm invoking all range of statutes,

00:15:07.080 --> 00:15:10.200
something like that, in Proclamation 4074. And

00:15:10.200 --> 00:15:11.700
I think the understanding is he didn't want to

00:15:11.700 --> 00:15:14.200
kind of spook our allies by invoking the Trading

00:15:14.200 --> 00:15:16.279
with the Enemies Act, by specifically invoking

00:15:16.279 --> 00:15:18.200
it. But in litigation, it was defended on that

00:15:18.200 --> 00:15:19.860
ground. So the Department of Justice defended

00:15:19.860 --> 00:15:22.179
it as an exercise of Tuia and did so successfully.

00:15:22.259 --> 00:15:25.580
What's the significance of the Nixon example

00:15:25.580 --> 00:15:27.240
and precedent here? Because I think figuring

00:15:27.240 --> 00:15:30.240
that out. real important to deciding this case

00:15:30.240 --> 00:15:32.899
correctly, so. Well, there's one obvious, very

00:15:32.899 --> 00:15:35.279
powerful takeaway from it, which is that this

00:15:35.279 --> 00:15:37.620
very two -word phrase, regulate importation,

00:15:37.779 --> 00:15:40.159
that we say it carries with it the authority

00:15:40.159 --> 00:15:43.019
to tariff, impose regulatory tariffs at the border,

00:15:43.259 --> 00:15:45.600
forward -facing tariffs at the border, and we

00:15:45.600 --> 00:15:49.500
say that's a core application of the phrase regulate

00:15:49.500 --> 00:15:52.240
importation, had been interpreted two years before

00:15:52.240 --> 00:15:55.779
Congress re -enacted that language in IEPA, had

00:15:55.779 --> 00:15:58.529
been interpreted to carry with it. the authority

00:15:58.529 --> 00:16:02.389
to impose tariffs. So this court said in Algonquin,

00:16:02.470 --> 00:16:04.289
for example, with respect to President Nixon's...

00:16:04.289 --> 00:16:06.559
Just back on the Nixon, what was the... scope

00:16:06.559 --> 00:16:09.759
of the Nixon tariffs? He imposed a 10 percent

00:16:09.759 --> 00:16:12.000
tariff kind of across the board to all our major

00:16:12.000 --> 00:16:13.940
trading partners to address a balance of payments

00:16:13.940 --> 00:16:17.240
deficit where he was trying to bring all the

00:16:17.240 --> 00:16:21.200
major industrial nations to the negotiating table,

00:16:21.220 --> 00:16:23.419
which he successfully did, from the imposition

00:16:23.419 --> 00:16:25.139
of the tariffs and they negotiated the Smithsonian

00:16:25.139 --> 00:16:27.159
agreement in about five months after which he

00:16:27.159 --> 00:16:29.480
lifted the tariff. So the tariff there was used

00:16:29.480 --> 00:16:32.539
as here in part as leverage to get our trading

00:16:32.539 --> 00:16:34.659
partners to the negotiating table and it was

00:16:34.659 --> 00:16:36.460
subsequently upheld. by the Federal Circuit,

00:16:36.539 --> 00:16:38.419
the CCPA, it's Federal Circuit's predecessor,

00:16:38.559 --> 00:16:40.340
that had exclusive jurisdiction over that question

00:16:40.340 --> 00:16:43.799
to include the power to tariff. And then two

00:16:43.799 --> 00:16:46.120
years later, Congress took that same phrase and

00:16:46.120 --> 00:16:48.879
reenacted it in IEPA after carefully studying

00:16:48.879 --> 00:16:51.080
the problem of presidential emergency powers

00:16:51.080 --> 00:16:53.779
and being deeply concerned about excessive or

00:16:53.779 --> 00:16:57.100
abusive exercise of that power. So that whole

00:16:57.100 --> 00:17:00.059
sort of process gives sort of strong sort of

00:17:00.059 --> 00:17:02.100
confirmation that this phrase, regulated importation,

00:17:02.320 --> 00:17:03.919
carries with it the power to tariff. Now, of

00:17:03.919 --> 00:17:05.410
course, that's not our legal Our leading argument,

00:17:05.450 --> 00:17:07.970
our lead argument on interpretation is... There's

00:17:07.970 --> 00:17:11.210
a pedigree, historical pedigree of regulating

00:17:11.210 --> 00:17:13.769
imports specifically where the power to tariff

00:17:13.769 --> 00:17:16.490
is just the sort of a core application of that,

00:17:16.650 --> 00:17:18.789
a quintessential exercise of that power. That

00:17:18.789 --> 00:17:21.029
goes back to Gibbons against Ogden and Justice

00:17:21.029 --> 00:17:22.789
Torey's treatise and runs all the way through

00:17:22.789 --> 00:17:25.069
cases like McGoldrick and Board of Trustees and

00:17:25.069 --> 00:17:26.569
more. Well, General Sauer, can I just ask you

00:17:26.569 --> 00:17:29.190
a question? Can you point to any other place

00:17:29.190 --> 00:17:31.309
in the code or any other time in history where

00:17:31.309 --> 00:17:34.369
that phrase together, regulate importation, has

00:17:34.369 --> 00:17:36.730
been used to confer tariff imposing authority?

00:17:36.589 --> 00:17:40.490
Well, as to regulate importation, that was held

00:17:40.490 --> 00:17:42.529
in Tuia. So obviously, and that's - Okay, okay.

00:17:42.809 --> 00:17:44.450
So an intermediate appellate court held it in

00:17:44.450 --> 00:17:46.630
Tuia, but you just told Justice Kavanaugh that

00:17:46.630 --> 00:17:48.730
wasn't your lead argument, that your lead argument

00:17:48.730 --> 00:17:51.029
was this long history of the phrase regulate

00:17:51.029 --> 00:17:53.970
importation being understood to include tariff

00:17:53.970 --> 00:17:56.230
authority. So my question is, has there ever

00:17:56.230 --> 00:17:58.529
been another instance in which a statute has

00:17:58.529 --> 00:18:01.769
used that language to confer the power? Putting

00:18:01.769 --> 00:18:04.339
aside Yeshida. I mean, obviously, the other statutory

00:18:04.339 --> 00:18:06.500
example is just imports. The cases we rely on

00:18:06.500 --> 00:18:08.259
are cases where, for example, in Gibbons, it's

00:18:08.259 --> 00:18:09.940
Ogden and Justice Sorris - But that just shows

00:18:09.940 --> 00:18:11.980
the word can be used that way. None of those

00:18:11.980 --> 00:18:15.240
cases talked about it as conferring tariff authority.

00:18:16.680 --> 00:18:19.079
I understood you to be citing McGoldrick and

00:18:19.079 --> 00:18:21.619
Gibbons and those cases just to show that it's

00:18:21.619 --> 00:18:24.180
possible to say that regulating commerce includes

00:18:24.180 --> 00:18:27.109
the power to tariff. I think our argument goes

00:18:27.109 --> 00:18:28.670
a bit further than that as an interpretive matter,

00:18:28.849 --> 00:18:30.730
because if you look at that history, the history

00:18:30.730 --> 00:18:32.869
of delegation. Could you just answer the Justice's

00:18:32.869 --> 00:18:36.529
question? Can you identify any statute that used

00:18:36.529 --> 00:18:38.170
that phrase to confer territory? Yeah, the only

00:18:38.170 --> 00:18:40.849
two statutes I can identify now are Tuia, as

00:18:40.849 --> 00:18:43.529
interpreted in Yoshida, and then closely related,

00:18:43.710 --> 00:18:46.509
not regular importation, but adjust imports in

00:18:46.509 --> 00:18:49.470
section 232. Well, I think adjust imports is

00:18:49.470 --> 00:18:52.410
differently. So the answer is the contested application

00:18:52.410 --> 00:18:56.400
in Tuia, and then now in IEPA. And then, of course,

00:18:56.500 --> 00:18:58.559
I mean, there's a sort of direct line there.

00:18:58.559 --> 00:19:02.319
Yeah, I understand that. OK. More fundamentally,

00:19:02.500 --> 00:19:04.279
we rely on historical sources to show there's

00:19:04.279 --> 00:19:07.079
this long historical pedigree of broad delegations

00:19:07.079 --> 00:19:09.059
of the foreign commerce power, not the power

00:19:09.059 --> 00:19:11.000
to tax, that we're not asserting here, delegations

00:19:11.000 --> 00:19:13.420
of the foreign commerce power to the president,

00:19:14.059 --> 00:19:16.279
going back to Gibbons against Ogden, all the

00:19:16.279 --> 00:19:17.779
way through McGoldrick and Board of Trustees,

00:19:18.019 --> 00:19:21.380
where this court and founding era sources say

00:19:21.380 --> 00:19:23.759
the power to, in other words, the power to tariff

00:19:23.759 --> 00:19:25.960
is kind of this natural, you know, as everyone

00:19:25.960 --> 00:19:27.480
knows, that includes - I'll just ask you one

00:19:27.480 --> 00:19:29.619
other question about the plain text, General

00:19:29.619 --> 00:19:32.599
Sauer. You've referred to the other verbs in

00:19:32.599 --> 00:19:35.480
IEPA as capacious. Would you really describe

00:19:35.480 --> 00:19:37.839
them as capacious? Because to me, things like

00:19:37.839 --> 00:19:41.099
nullify and void have definite meanings. I agree

00:19:41.099 --> 00:19:43.380
with you that regulate is a broader term, but

00:19:43.380 --> 00:19:46.819
those words I think are powerful. They pack a

00:19:46.819 --> 00:19:49.680
punch, but I wouldn't describe them as capacious

00:19:49.680 --> 00:19:51.579
in the sense that they have a wide range of meaning.

00:19:51.640 --> 00:19:53.660
So can you describe what you mean by capacious?

00:19:53.759 --> 00:19:55.119
Let me put it this way. You look at all nine

00:19:55.119 --> 00:19:56.900
verbs together, and you're looking at a spectrum

00:19:56.900 --> 00:19:59.980
of powers from the most sort of negative, nullify,

00:20:00.160 --> 00:20:02.819
block, prohibit, void, to the most affirmative,

00:20:03.240 --> 00:20:05.980
direct, compel, and then also powers in between

00:20:05.980 --> 00:20:08.140
that are more intermediate, regulate, investigate,

00:20:08.160 --> 00:20:10.980
and so forth. So the natural common sense inference

00:20:10.980 --> 00:20:13.380
from that grammatical structure is the intention

00:20:13.380 --> 00:20:16.039
of Congress to sort of cover the Well, possible,

00:20:16.440 --> 00:20:18.779
General, possible, except Congress did take out

00:20:18.779 --> 00:20:22.140
a whole bunch of verbs. It took out confiscate,

00:20:22.440 --> 00:20:26.099
vest, hold, use, administer, liquidate, sell,

00:20:26.380 --> 00:20:30.980
which were in the prior statute. And crucially,

00:20:31.059 --> 00:20:34.180
what it doesn't have here is anything that refers

00:20:34.180 --> 00:20:37.240
to raising revenue. So it has a lot of verbs.

00:20:37.440 --> 00:20:39.980
It has a lot of actions that can be taken under

00:20:39.980 --> 00:20:42.779
this statute. It just doesn't have the one you

00:20:42.779 --> 00:20:45.440
want. I would say the notion that all these other

00:20:45.440 --> 00:20:48.440
verbs are not revenue -raising, like block and

00:20:48.440 --> 00:20:51.220
prohibit, I think that that argument is unconvincing

00:20:51.220 --> 00:20:53.759
for two reasons. One, of course, is that we're

00:20:53.759 --> 00:20:56.380
not saying it confers a revenue -raising power.

00:20:56.559 --> 00:20:58.640
We're saying it confers a regulatory power. And

00:20:58.640 --> 00:21:00.859
that's a crucial distinction. But also... Yes,

00:21:00.859 --> 00:21:03.019
but if I can just stop you there. Regulatory

00:21:03.019 --> 00:21:06.779
power. I mean, yes, it says regulate. But broaden

00:21:06.779 --> 00:21:09.420
out Justice Barrett's question. Is there any

00:21:09.420 --> 00:21:12.359
place that you can find in the entire code where

00:21:12.359 --> 00:21:17.740
regulate used just as regulate includes taxing

00:21:17.740 --> 00:21:20.460
power? We don't assert that. We say it includes

00:21:20.460 --> 00:21:23.150
terrifying power. when it's combined with importation.

00:21:23.269 --> 00:21:24.829
And that's just the most natural... Right, because

00:21:24.829 --> 00:21:27.849
the natural understanding of regulate, even though

00:21:27.849 --> 00:21:31.210
in fact we can regulate through taxes, but when

00:21:31.210 --> 00:21:34.410
the code uses regulate, we don't typically understand

00:21:34.410 --> 00:21:38.049
it to refer to duties or taxes or tariffs or

00:21:38.049 --> 00:21:40.549
anything of the kind. And then if you look at

00:21:40.549 --> 00:21:43.390
the flip side of this, and you look at all the

00:21:43.390 --> 00:21:46.250
tariff statutes that Congress has passed... I

00:21:46.250 --> 00:21:49.509
mean, they use language about revenue raising,

00:21:49.789 --> 00:21:52.730
tariffs and duties and taxes, all the language

00:21:52.730 --> 00:21:55.829
that does not appear in the statute you rely

00:21:55.829 --> 00:21:58.970
on. Start with the grammatical structure of the

00:21:58.970 --> 00:22:01.130
statute, then refer to the other statutes. Regulate

00:22:01.130 --> 00:22:03.869
importation. You put those two words in combination.

00:22:04.480 --> 00:22:06.559
The inference from that is, you know, the founders

00:22:06.559 --> 00:22:08.400
discussed with this sort of like, you know, as

00:22:08.400 --> 00:22:10.420
everyone knows, attitude, regulate importation.

00:22:10.660 --> 00:22:12.700
One of the most natural applications of that

00:22:12.700 --> 00:22:14.960
is the power to tariff. So when Congress confers

00:22:14.960 --> 00:22:18.220
the power to regulate imports, it is naturally

00:22:18.220 --> 00:22:20.440
conferring the power to tariff, which it has

00:22:20.440 --> 00:22:22.299
delegated to the executive branch, you know,

00:22:22.420 --> 00:22:24.180
again and again and again going back and forth.

00:22:24.180 --> 00:22:26.220
I'm sorry, counsel. It doesn't say regulate tariffs.

00:22:26.319 --> 00:22:30.799
It says regulate importations and exportations.

00:22:31.180 --> 00:22:34.140
You agree that they can't put tariffs, taxes

00:22:34.140 --> 00:22:37.819
on exportations? From the state, yes. All right.

00:22:38.240 --> 00:22:40.519
So why should we think that it's natural then

00:22:40.519 --> 00:22:45.059
to think that regulate importation includes taxing

00:22:45.059 --> 00:22:48.980
importations? Because that is how... In the conjunctive,

00:22:49.400 --> 00:22:52.660
importations and exportations, if they can't

00:22:52.660 --> 00:22:57.059
do it with respect to exportations, why are we

00:22:57.059 --> 00:23:00.299
permitting them to do it with respect to importations?

00:23:00.599 --> 00:23:02.980
Because as this Court has recognized, going back

00:23:02.980 --> 00:23:05.740
to gibbons against Ogden and going through McGoldrick

00:23:05.740 --> 00:23:08.940
and Board of Trustees, when you're regulating

00:23:08.940 --> 00:23:11.519
imports, tariffing is a core application of that.

00:23:12.259 --> 00:23:14.140
So in other words, if you're saying go regulate

00:23:14.140 --> 00:23:15.920
trading and securities, then you come with a

00:23:15.920 --> 00:23:18.140
tariffing competition. So why is it that Congress

00:23:18.140 --> 00:23:21.099
has always used regulate and tax together in

00:23:21.099 --> 00:23:24.559
the Code? Are you telling us that with respect

00:23:24.559 --> 00:23:28.759
to its use of regulate in other statutes, the

00:23:28.759 --> 00:23:32.819
taxing reference is superfluous. They didn't

00:23:32.819 --> 00:23:37.980
need to do that. I'm not sure what other statutes

00:23:37.980 --> 00:23:40.279
you use regulate and tax together, but this statute

00:23:40.279 --> 00:23:42.640
has a specific historical pedigree going back

00:23:42.640 --> 00:23:44.940
to its enactment during World War I in 1917,

00:23:45.319 --> 00:23:47.940
where the phrase regulate importation is evoking

00:23:47.940 --> 00:23:50.619
an inherent power to tariff that became established

00:23:50.619 --> 00:23:53.119
in the 19th century in cases like E .O. Hamilton

00:23:53.119 --> 00:23:54.559
against Dillon and so forth. And that history

00:23:54.559 --> 00:23:56.359
is, I think, set forth in Professor Banzai's

00:23:56.359 --> 00:24:01.359
amicus brief. Some time ago, you dismissed the

00:24:01.359 --> 00:24:03.460
applicability of the major questions doctrine,

00:24:03.779 --> 00:24:07.299
and I want you to explain that a little bit more.

00:24:07.420 --> 00:24:10.779
I mean, it seems that it might be directly applicable.

00:24:10.859 --> 00:24:15.059
You have a claim source, an IEPA, that had never

00:24:15.059 --> 00:24:19.500
before been used to justify tariffs. No one has

00:24:19.500 --> 00:24:24.180
argued that it does until this particular case.

00:24:24.640 --> 00:24:27.960
Congress uses tariffs in other provisions, but

00:24:27.789 --> 00:24:31.809
but not here, and yet, and correct me on this

00:24:31.809 --> 00:24:34.349
if I'm not right about it, the justification

00:24:34.349 --> 00:24:39.170
is being used for a power to impose tariffs on

00:24:39.170 --> 00:24:44.250
any product from any country in any amount for

00:24:44.250 --> 00:24:46.670
any length of time. That seems like I'm not suggesting

00:24:46.670 --> 00:24:49.529
it's not there, but it does seem like that's

00:24:49.529 --> 00:24:54.450
major authority and the basis for the claim seems

00:24:54.450 --> 00:24:57.170
to be a misfit. So why doesn't it apply again?

00:24:57.390 --> 00:24:59.950
Well, we agree that it's a major power, but it's

00:24:59.950 --> 00:25:02.890
in the context of a statute that is explicitly

00:25:02.890 --> 00:25:05.049
conferring major powers, that the point of the

00:25:05.049 --> 00:25:06.930
statute is to confer major powers to address

00:25:06.930 --> 00:25:09.269
major questions, which are emergency, so it would

00:25:09.269 --> 00:25:10.769
be unusual to say, look at the statute and say,

00:25:11.049 --> 00:25:12.529
we're not going to find a major power here. Well,

00:25:12.549 --> 00:25:15.809
but the exercise of the power is to impose tariffs,

00:25:16.009 --> 00:25:18.789
right? And the statute doesn't use the word tariffs.

00:25:19.390 --> 00:25:23.119
But it uses the word regular importation. Historically,

00:25:23.440 --> 00:25:26.299
a core central application of that, a big piece

00:25:26.299 --> 00:25:28.500
of that, has always been to tariff. If you had

00:25:28.500 --> 00:25:30.240
asked the founders, how do you regulate imports,

00:25:30.339 --> 00:25:31.400
they would say, of course, we tariff. That's

00:25:31.400 --> 00:25:33.140
what we do. So it'd be very unusual to say, we're

00:25:33.140 --> 00:25:36.000
giving you power to regulate importation and

00:25:36.000 --> 00:25:37.779
say, but you can't impose regulatory tariffs.

00:25:37.839 --> 00:25:39.940
That'd be almost a contradiction. And all the

00:25:39.940 --> 00:25:42.299
historical sources we cite in our brief relate

00:25:42.299 --> 00:25:44.079
to that particular historical pedigree. And as

00:25:44.079 --> 00:25:45.960
I was referring to earlier, there's a specific

00:25:45.960 --> 00:25:48.460
pedigree of regulated importation here in the

00:25:48.460 --> 00:25:50.799
specific context of the president's Polk and

00:25:50.799 --> 00:25:53.329
Lincoln and President McKinley asserting the

00:25:53.329 --> 00:25:56.430
authority to impose tariffs in wartime that was

00:25:56.430 --> 00:25:58.849
then codified in Tuia, and then recodified for

00:25:58.849 --> 00:26:01.230
peacetime in Tuia in 1933, and then carried over

00:26:01.230 --> 00:26:04.329
into IEPA. So there's that as well. But more

00:26:04.329 --> 00:26:05.769
importantly, if you look at the sort of triggering

00:26:05.769 --> 00:26:07.750
conditions that members of this court have identified

00:26:07.750 --> 00:26:10.769
for the major questions doctrine, there's a series

00:26:10.769 --> 00:26:12.930
of them, and we think all of them don't apply

00:26:12.930 --> 00:26:14.250
here. For example, the notion that the power

00:26:14.250 --> 00:26:17.230
is unheralded. You refer to the fact that IEPA

00:26:17.230 --> 00:26:19.549
has never been asserted to invoke tariffs, but

00:26:19.549 --> 00:26:22.160
of course, The immediately predecessor statute,

00:26:23.319 --> 00:26:24.980
the pairs that President Nixon imposed on that

00:26:24.980 --> 00:26:27.059
were upheld under this very language. So this,

00:26:27.119 --> 00:26:29.140
I would say this is, and it was recodified two

00:26:29.140 --> 00:26:30.700
years later. So this is kind of the opposite

00:26:30.700 --> 00:26:33.019
of unheralded power. It's also heralded because

00:26:33.019 --> 00:26:35.960
there's this long -standing delegation, a tradition

00:26:35.960 --> 00:26:38.279
of very broad delegations of the foreign commerce

00:26:38.279 --> 00:26:40.079
power going back to the founding, going back

00:26:40.079 --> 00:26:41.839
to... Well, the foreign commerce part, but I

00:26:41.839 --> 00:26:43.940
mean, and I think this is a question for the

00:26:43.940 --> 00:26:46.660
other side as well. It's two -facing. Yes, of

00:26:46.660 --> 00:26:49.319
course, there are dealings with foreign powers.

00:26:50.279 --> 00:26:54.460
The vehicle is imposition of taxes on Americans,

00:26:54.900 --> 00:26:57.099
and that has always been the core power of Congress.

00:26:57.619 --> 00:26:59.980
So to have the President's foreign affairs power

00:26:59.980 --> 00:27:06.759
trump that basic power for Congress seems to

00:27:06.759 --> 00:27:11.440
me to kind of at least neutralize between the

00:27:11.440 --> 00:27:14.559
two powers, the executive power and the legislative

00:27:14.559 --> 00:27:17.380
power. Let me say two things in response to that.

00:27:17.380 --> 00:27:19.740
First, the notion that the taxes are all borne

00:27:19.740 --> 00:27:23.599
by Americans and are not borne by foreign producers

00:27:23.599 --> 00:27:27.279
whose goods are imported is empirically, there's

00:27:27.279 --> 00:27:29.240
no basis for that in the record. It's actually

00:27:29.240 --> 00:27:31.680
a mixed... Well, who pays the tariffs? If a tariff

00:27:31.680 --> 00:27:37.339
is imposed on automobiles, who pays them? Typically,

00:27:38.079 --> 00:27:39.619
regardless of who the importer of record is,

00:27:39.740 --> 00:27:41.480
there'd be a contract that would go along the

00:27:41.480 --> 00:27:43.279
sort of line of transfer that would allocate

00:27:43.279 --> 00:27:45.859
the tariff, and there'd be different... Sometimes

00:27:45.859 --> 00:27:48.680
the foreign producer would pay them. Sometimes

00:27:48.680 --> 00:27:50.619
the importer would bear the cost. The importer

00:27:50.619 --> 00:27:52.359
could be an American, could be a foreign company.

00:27:52.420 --> 00:27:55.380
A lot of times it's a wholly owned American subsidiary

00:27:55.380 --> 00:27:57.480
of a foreign corporation. So it gets allocated.

00:27:57.960 --> 00:27:59.759
The empirical estimates range from like 30 %

00:27:59.759 --> 00:28:01.720
to 80 % of like how much is borne by Americans.

00:28:01.720 --> 00:28:03.700
I mean, it's been suggested that the tariffs

00:28:03.700 --> 00:28:06.140
are responsible for a significant reduction in

00:28:06.140 --> 00:28:08.539
our deficit. I would say that's raising revenue

00:28:08.539 --> 00:28:11.000
domestically. There certainly is an incidental

00:28:11.000 --> 00:28:12.519
and collateral effect to the tariffs that they

00:28:12.519 --> 00:28:14.700
do raise revenue, but it's a very important...

00:28:14.250 --> 00:28:16.589
that they are regulatory tariffs, not revenue

00:28:16.589 --> 00:28:18.450
raising tariffs. And the way you can see this,

00:28:18.470 --> 00:28:21.329
I think, if you look at this policy, this policy

00:28:21.329 --> 00:28:24.089
is by far the most effective if nobody ever pays

00:28:24.089 --> 00:28:26.069
the tariffs. And I say two policies, right? So

00:28:26.069 --> 00:28:28.450
if you look at the trade deficit emergency, if

00:28:28.450 --> 00:28:30.650
nobody ever pays the tariffs and instead Americans

00:28:30.650 --> 00:28:33.289
direct their consumption towards American producers

00:28:33.289 --> 00:28:35.230
and stimulate the rebuilding of our hollowed

00:28:35.230 --> 00:28:37.789
out manufacturing base, then the policy is by

00:28:37.789 --> 00:28:40.269
far the most effective. So a tariff, a regulatory

00:28:40.269 --> 00:28:42.960
tariff that - So why not? Why not? do what the

00:28:42.960 --> 00:28:46.359
statute permits, bar importation of products

00:28:46.359 --> 00:28:49.880
altogether. That would be the most effective

00:28:49.880 --> 00:28:54.519
way to do it. You follow the statute. The statute

00:28:54.519 --> 00:28:57.339
says the President can do that. What it doesn't

00:28:57.339 --> 00:29:01.920
say is the President can raise revenue. What

00:29:01.920 --> 00:29:04.700
it says is he can regulate importation and go

00:29:04.700 --> 00:29:06.500
about hundreds of years the way you regulate

00:29:06.500 --> 00:29:10.539
it. Regulate it by quotas, causing it. subjecting

00:29:10.539 --> 00:29:14.279
some countries and not others to importation

00:29:14.279 --> 00:29:19.720
bans has a lot of verbs, but none of them include

00:29:19.720 --> 00:29:24.900
generating revenue as a side effect or directly.

00:29:26.920 --> 00:29:29.460
Let me address that verb point, if I may, because

00:29:29.460 --> 00:29:31.400
think about the canonical example, a statute

00:29:31.400 --> 00:29:33.920
that refers to a list of swords, knives, daggers,

00:29:34.099 --> 00:29:37.099
dirks, and pikes. There you look at that list

00:29:37.099 --> 00:29:38.960
of things and you say, aha, those are all weapons,

00:29:39.140 --> 00:29:42.720
therefore a pike is a spear, not a fish, in that

00:29:42.720 --> 00:29:44.940
particular context. Now look at this list of

00:29:44.940 --> 00:29:47.740
verbs, block, prohibit, compel, direct, and so

00:29:47.740 --> 00:29:49.259
forth. You don't look at that naturally as an

00:29:49.259 --> 00:29:50.539
ordinary reader and say, oh, look, they're all

00:29:50.539 --> 00:29:52.579
not revenue raising. What you say is, they're

00:29:52.579 --> 00:29:56.299
all very broad. powerful, you know, actions that

00:29:56.299 --> 00:29:58.059
you can take. General, the verbs that are in

00:29:58.059 --> 00:30:01.039
the statute are actually doing something. I mean,

00:30:01.140 --> 00:30:03.619
they're in the statute for a reason, and as I

00:30:03.619 --> 00:30:06.519
understand it, Congress actually explained to

00:30:06.519 --> 00:30:10.599
us in its Senate report and House report when

00:30:10.599 --> 00:30:14.910
it enacted the 1941 amendments to Tuia, what

00:30:14.910 --> 00:30:17.269
it was doing, it said that what we are doing

00:30:17.269 --> 00:30:20.230
is authorizing the president in the Senate report,

00:30:20.230 --> 00:30:24.009
quote, to control or freeze property transactions

00:30:24.009 --> 00:30:26.750
where a foreign interest is involved. There's

00:30:26.750 --> 00:30:29.309
similar language about controlling, freezing

00:30:29.309 --> 00:30:32.950
control in the House report. So I appreciate

00:30:32.950 --> 00:30:35.589
that generally you can look at these words and

00:30:35.589 --> 00:30:37.630
you can imagine that they mean certain things,

00:30:37.670 --> 00:30:40.710
but here we have evidence. that Congress was

00:30:40.710 --> 00:30:43.130
actually trying to do a particular thing with

00:30:43.130 --> 00:30:45.809
respect to the authority that it was presenting

00:30:45.809 --> 00:30:48.769
to the President, and that thing was not raising

00:30:48.769 --> 00:30:53.349
revenue. I think that the powers that Congress

00:30:53.349 --> 00:30:55.769
was conferring on the President are best understood

00:30:55.769 --> 00:30:57.369
through the plain text of the statutes, which

00:30:57.369 --> 00:30:59.069
includes regulating... No, I know, but some of

00:30:59.069 --> 00:31:01.130
us care about the legislative history, and so

00:31:01.130 --> 00:31:03.650
the plain text of the statute has certain verbs

00:31:03.650 --> 00:31:07.069
in it. It also has regulate commerce, as you

00:31:07.069 --> 00:31:11.450
say, and... When I look at the legislative history,

00:31:11.690 --> 00:31:13.710
it appears as though Congress was trying to give

00:31:13.710 --> 00:31:16.809
the president the authority to, quote, control

00:31:16.809 --> 00:31:19.150
or freeze property transactions where foreign

00:31:19.150 --> 00:31:21.509
interest is involved. And in the TWA context,

00:31:21.670 --> 00:31:23.329
that makes perfect sense because we're talking

00:31:23.329 --> 00:31:27.299
about a wartime dynamic. And what is happening

00:31:27.299 --> 00:31:30.039
is the president needs the authority to prevent

00:31:30.039 --> 00:31:32.900
trading with the enemy in the midst of a war.

00:31:33.039 --> 00:31:35.400
And that seems to be the focus of this statute.

00:31:35.940 --> 00:31:38.920
So I guess I'm concerned about just sort of taking

00:31:38.920 --> 00:31:41.640
a particular word here and there and saying that

00:31:41.640 --> 00:31:45.339
the general view of it might include raising

00:31:45.339 --> 00:31:48.200
revenue when in fact it looks as though the aim

00:31:48.200 --> 00:31:51.079
of this was really to give the president a certain

00:31:51.079 --> 00:31:54.759
kind of authority. to freeze the assets of the

00:31:54.759 --> 00:31:56.500
enemy. And let me say two things in response

00:31:56.500 --> 00:31:58.640
to that. First, as the notion that this is a

00:31:58.640 --> 00:32:02.019
revenue raising tactic or power, it is not. We

00:32:02.019 --> 00:32:04.180
are asserting a regulatory power. It's a delegation

00:32:04.180 --> 00:32:06.279
of power to regulate foreign commerce. The way

00:32:06.279 --> 00:32:09.220
to control imports traditionally has been to

00:32:09.220 --> 00:32:11.200
tariff them. They say, well, you can impose quotas.

00:32:11.299 --> 00:32:14.039
Well, quotas are essentially economically equivalent

00:32:14.039 --> 00:32:15.819
to tariffs. So the question is, why would you

00:32:15.819 --> 00:32:17.779
be able to quota under regulate but not tariff

00:32:17.779 --> 00:32:19.599
under regulate when the tariffs are themselves

00:32:19.599 --> 00:32:21.519
regulatory? And let me turn back to the question

00:32:21.519 --> 00:32:26.289
I was given. Could the answer be that in other

00:32:26.289 --> 00:32:30.009
places where Congress wants that particular form

00:32:30.009 --> 00:32:34.269
of regulation to be used, they say impose duties.

00:32:34.829 --> 00:32:39.289
They say you can tax, Mr. President. Here they

00:32:39.289 --> 00:32:41.970
don't say that. I'd say two things in response

00:32:41.970 --> 00:32:43.970
to that. That's the very argument that this court

00:32:43.970 --> 00:32:46.450
rejected in Algonquin. that the fact that these

00:32:46.450 --> 00:32:48.690
other specific statutes, do you say a certain

00:32:48.690 --> 00:32:49.990
way you have to do it this way? If we disagree

00:32:49.990 --> 00:32:52.509
with you that Algonquin is a similar context,

00:32:52.750 --> 00:32:54.710
do you have another statute or another circumstance?

00:32:54.730 --> 00:32:57.109
And again, not to cite Algonquin again, but obviously,

00:32:57.450 --> 00:33:00.549
we discussed the phrase adjust imports. And they

00:33:00.549 --> 00:33:02.029
said, the natural way to do that is to tariff

00:33:02.029 --> 00:33:04.609
them. And they specifically said, it makes no

00:33:04.609 --> 00:33:08.109
sense at all to authorize quotas, which was conceded

00:33:08.109 --> 00:33:10.529
that that statute did authorize, but not tariffs,

00:33:10.609 --> 00:33:12.430
because those are equivalent. But it's said it's

00:33:12.430 --> 00:33:15.920
just by any means necessary. which kind of beefs

00:33:15.920 --> 00:33:18.859
up the adjust. And also, and this is actually,

00:33:18.920 --> 00:33:20.500
I just don't know the answer to this question,

00:33:20.559 --> 00:33:22.420
so maybe it can help and maybe the other side

00:33:22.420 --> 00:33:25.339
can help as well. Algonquin was very careful

00:33:25.339 --> 00:33:28.380
to always call it a license and a licensing fee,

00:33:28.519 --> 00:33:30.599
and in the oral argument that came up too, the

00:33:30.599 --> 00:33:32.240
distinction between a tariff and a licensing

00:33:32.240 --> 00:33:34.240
fee. And I can understand how in some context

00:33:34.240 --> 00:33:36.500
it would be very difficult. You would press on

00:33:36.500 --> 00:33:38.400
it and you would say, well, if this license fee

00:33:38.400 --> 00:33:42.220
is raising revenue. then it actually functions

00:33:42.220 --> 00:33:44.359
as a tariff. But what is the significance of

00:33:44.359 --> 00:33:47.640
that? Because in IEPA, it also says, it refers

00:33:47.640 --> 00:33:51.460
particularly to licenses. It says you can license.

00:33:51.740 --> 00:33:56.160
And license would be a way of giving permission.

00:33:56.819 --> 00:34:00.960
That's actually the language also used in the

00:34:00.960 --> 00:34:06.339
Civil War one, and what is it? It was a license,

00:34:06.339 --> 00:34:08.639
it was a license fee, and that's a way to grant

00:34:08.639 --> 00:34:11.079
permission. that you wouldn't otherwise have

00:34:11.079 --> 00:34:13.440
to trade and import and let it through. So tell

00:34:13.440 --> 00:34:15.800
me what the distinction is between licenses and

00:34:15.800 --> 00:34:17.699
fees and if it matters. It's hard for me to see

00:34:17.699 --> 00:34:20.219
one. because what President Lincoln said is,

00:34:20.380 --> 00:34:22.320
OK, we're going to allow imports from hostile

00:34:22.320 --> 00:34:24.119
foreign powers, basically rebellious Confederate

00:34:24.119 --> 00:34:27.260
states, of cotton subject to a license. But you've

00:34:27.260 --> 00:34:28.940
got to pay $0 .04 a pound of cotton. When you

00:34:28.940 --> 00:34:32.659
do it, that's the condition. That is so nearly

00:34:32.659 --> 00:34:33.960
equivalent to a tariff that says you can bring

00:34:33.960 --> 00:34:35.059
these goods into our country, but you've got

00:34:35.059 --> 00:34:42.079
to pay an ad valorem assessment on it. And of

00:34:42.079 --> 00:34:44.460
course, they have in their briefs conceded that

00:34:44.460 --> 00:34:47.860
quotas apply, that licensing may apply. in the

00:34:47.860 --> 00:34:49.780
beginning of 1701 that talks about instruments

00:34:49.780 --> 00:34:52.440
or other methods, instruments, licenses. But

00:34:52.440 --> 00:34:53.940
if that were true, why couldn't you just call

00:34:53.940 --> 00:34:57.019
this a license? And it's also true that in the

00:34:57.019 --> 00:34:59.539
Cotton example, the court said the exaction itself

00:34:59.539 --> 00:35:02.300
was not properly attached, but a bonus required

00:35:02.300 --> 00:35:05.400
as a conditioned precedent for engaging in the

00:35:05.400 --> 00:35:08.199
trade. So it seems like it was a little squirrely

00:35:08.199 --> 00:35:11.280
about how it was proceeding. And if there really

00:35:11.280 --> 00:35:13.059
is no distinction, why couldn't you just call

00:35:13.059 --> 00:35:15.230
it a license here? Very briefly, the other two

00:35:15.230 --> 00:35:17.530
cases, you know, the Polk case and then the President

00:35:17.530 --> 00:35:20.690
McKenna case talk about duties. So I see an equivalence

00:35:20.690 --> 00:35:22.449
there, Mr. Chief Justice. Thank you, counsel.

00:35:22.889 --> 00:35:26.630
Justice Thomas, anything further? The other side

00:35:26.630 --> 00:35:30.489
is going to argue, make an argue on delegation,

00:35:30.550 --> 00:35:33.329
I believe. Would you anticipate that and give

00:35:33.329 --> 00:35:36.489
us your understanding of the delegation argument?

00:35:37.449 --> 00:35:39.250
Yes, Justice Thomas, I'd say a couple things

00:35:39.250 --> 00:35:42.849
in response to that. First of all, This court

00:35:42.849 --> 00:35:45.170
has stated that the non -delegation doctrine

00:35:45.170 --> 00:35:47.710
does not apply with anything like the same force

00:35:47.710 --> 00:35:50.590
as it does in the domestic context in the foreign

00:35:50.590 --> 00:35:53.070
context. And that, again, to cite Dames and Moore

00:35:53.070 --> 00:35:56.030
again, Dames and Moore cites Youngstown and Youngstown

00:35:56.030 --> 00:35:58.789
in footnote two of Justice Jackson's opinion.

00:35:58.789 --> 00:36:00.829
He goes into detail about this. He addresses

00:36:00.829 --> 00:36:02.409
Curtis Wright. He says there's a lot of broad

00:36:02.409 --> 00:36:04.829
dicta in Curtis Wright. But the holding of Curtis

00:36:04.829 --> 00:36:07.710
Wright, the ratio dissidenti, is that the domestic

00:36:07.710 --> 00:36:09.409
non -delegation doctrine does not apply with

00:36:09.409 --> 00:36:10.760
the same force in the foreign context. foreign

00:36:10.760 --> 00:36:13.340
contacts. And he uses that phrase, does not apply.

00:36:13.480 --> 00:36:15.000
He says the strict limitations on delegation

00:36:15.000 --> 00:36:18.320
that apply in the internal context do not apply

00:36:18.320 --> 00:36:21.119
in the external context. And so we rely on that

00:36:21.119 --> 00:36:23.019
line of cases. And for the reasons I talked about

00:36:23.019 --> 00:36:24.800
earlier, we're talking about a situation where

00:36:24.800 --> 00:36:26.360
the president has his own inherent authority

00:36:26.360 --> 00:36:28.679
to address foreign arising emergencies. And Congress

00:36:28.679 --> 00:36:31.579
is conferring tools on him that expand his ability,

00:36:31.659 --> 00:36:34.260
his capacity to do so. We are in the area of

00:36:34.260 --> 00:36:38.349
Youngstown Zone 1. A few times you have alluded

00:36:38.349 --> 00:36:41.789
to the history as being important in interpreting

00:36:41.789 --> 00:36:47.170
the statute, and also that this language comes

00:36:47.170 --> 00:36:51.130
from the Trading with the Enemies Act, and that

00:36:51.130 --> 00:36:54.969
has its own pedigree. Could you just sketch out

00:36:54.969 --> 00:36:58.250
this direct line that you were alluding to as

00:36:58.250 --> 00:37:01.750
a basis for interpreting the current emergency

00:37:01.750 --> 00:37:04.800
statute as you would like it interpreted? Yes,

00:37:04.940 --> 00:37:06.340
Justice Thomas, and turning back to the response

00:37:06.340 --> 00:37:08.139
I was giving to Justice Barrett earlier, there

00:37:08.139 --> 00:37:10.019
is, I think it's very well set out in Professor

00:37:10.019 --> 00:37:12.820
Bomsai's amicus brief, there is this history

00:37:12.820 --> 00:37:16.099
of presidents using a tariffing power or a tariff

00:37:16.099 --> 00:37:18.079
equivalent power, very, very close to tariffing

00:37:18.079 --> 00:37:21.900
power, in wartime to tariff trading with enemies.

00:37:22.079 --> 00:37:23.820
And that is when the Trading with the Enemy Act

00:37:23.820 --> 00:37:27.059
was enacted in 1917, it was deliberately evoking

00:37:27.059 --> 00:37:29.219
that, and when it brings in the power to regulate

00:37:29.219 --> 00:37:33.829
importation, it's essentially codifying for an

00:37:33.829 --> 00:37:35.550
inherent power the president's already recognized

00:37:35.550 --> 00:37:38.150
to have. And then in 1933 when that power is

00:37:38.150 --> 00:37:40.150
expanded to an area where he wouldn't inherently

00:37:40.150 --> 00:37:42.809
have it, the peacetime context, that codification,

00:37:43.010 --> 00:37:44.809
the meaning of that remains the same. The regulated

00:37:44.809 --> 00:37:47.590
importation language that's brought in from Tuia

00:37:47.590 --> 00:37:51.030
and then ultimately to Iepa in 1977 is carrying

00:37:51.030 --> 00:37:53.190
with it that connotation. And that's reinforced

00:37:53.190 --> 00:37:54.909
by all the cases we've cited in our brief where

00:37:54.909 --> 00:37:56.969
there's been extremely broad delegations of the

00:37:56.969 --> 00:37:59.090
power to tariff specifically and the power to

00:37:59.090 --> 00:38:01.289
regulate foreign commerce more generally. going

00:38:01.289 --> 00:38:02.969
back to the time of the founding, which ties

00:38:02.969 --> 00:38:06.489
to your question about non -delegation. Justice

00:38:06.489 --> 00:38:17.309
Alito? The CCPA said things in Yoshida that are

00:38:17.309 --> 00:38:20.789
helpful to your position, but it also said some

00:38:20.789 --> 00:38:25.489
other things. It said that future surcharges

00:38:25.489 --> 00:38:28.829
quote, must of course comply with section 122

00:38:28.829 --> 00:38:34.750
of the Trade Act. of 1974 and it said that the

00:38:34.750 --> 00:38:37.690
trading with the enemy act did not authorize

00:38:37.690 --> 00:38:40.650
the president to quote fix rates of duty at will

00:38:40.650 --> 00:38:43.010
without regard to statutory rates prescribed

00:38:43.010 --> 00:38:48.510
by Congress. So do you think that Congress to

00:38:48.510 --> 00:38:52.070
the extent Congress had that decision in mind

00:38:52.070 --> 00:38:54.230
and relied on it do you think it also relied

00:38:54.230 --> 00:38:57.480
on those statements? in the opinion? Not in the

00:38:57.480 --> 00:38:59.260
same way, because those statements are read into

00:38:59.260 --> 00:39:01.239
other provisions of Tuia that Congress did not

00:39:01.239 --> 00:39:03.119
enact in Anipa. They may still be there in Tuia,

00:39:03.159 --> 00:39:04.659
but those are limitations that it wouldn't make

00:39:04.659 --> 00:39:07.099
sense to do. And I think the significance of

00:39:07.099 --> 00:39:09.000
Yoshida is at a higher level. Keep in mind that

00:39:09.000 --> 00:39:11.019
their principal position is no tariffs at all.

00:39:11.260 --> 00:39:13.699
Regulate importation just doesn't carry a connotation

00:39:13.699 --> 00:39:15.659
of the power to tariff. And we say we've got

00:39:15.659 --> 00:39:17.380
historical sources going back to Gibbons against

00:39:17.380 --> 00:39:19.980
Ogden that say the opposite, but more fundamentally,

00:39:20.409 --> 00:39:22.829
Everyone knew that, at the time IEPA was enacted,

00:39:23.030 --> 00:39:24.849
that irregular importation had just very visibly

00:39:24.849 --> 00:39:28.630
and very prominently been upheld to include a

00:39:28.630 --> 00:39:32.650
sweeping global tariff. Thank you. Mrs. Sohmeyer?

00:39:32.869 --> 00:39:35.329
I'd like to go back to Justice Barrett's question

00:39:35.329 --> 00:39:38.730
on the word license as used in IEPA. It's not

00:39:38.730 --> 00:39:44.250
used as a verb. It's used as a noun. The President

00:39:44.250 --> 00:39:47.269
may, under such regulations as he may prescribe,

00:39:47.519 --> 00:39:51.219
by means of instructions, licenses, or otherwise,

00:39:52.380 --> 00:39:55.619
then do what the verbs permit him to do. By license,

00:39:55.619 --> 00:39:59.880
he can nullify, void, prevent or prohibit any

00:39:59.880 --> 00:40:03.539
acquisition, etc. So license is not being used

00:40:03.539 --> 00:40:06.820
as a verb that through licensing he can raise

00:40:06.820 --> 00:40:11.139
revenue. He can only use licenses to accomplish

00:40:11.139 --> 00:40:16.139
the verbs. So I don't understand how we can treat

00:40:16.219 --> 00:40:23.079
licensing is equivalent to revenue raising. As

00:40:23.079 --> 00:40:26.420
used in IEPA, the license is only to accomplish

00:40:26.420 --> 00:40:29.519
what B permits. In Hamilton v. Dillon, license

00:40:29.519 --> 00:40:31.980
is once you have the license, then you had to

00:40:31.980 --> 00:40:35.219
pay the fees. But that's the point I'm making,

00:40:35.300 --> 00:40:38.320
which is that the only use of license here is

00:40:38.320 --> 00:40:42.269
a noun. You can license to accomplish the powers

00:40:42.269 --> 00:40:44.570
that begives the president. Let me be clear,

00:40:44.690 --> 00:40:46.889
we rely on the phrase regulate importation. We're

00:40:46.889 --> 00:40:48.610
not saying that executive order. Exactly. You're

00:40:48.610 --> 00:40:50.869
not relying on licenses for that reason. No,

00:40:50.869 --> 00:40:52.429
I only cite that language, that introductory

00:40:52.429 --> 00:40:54.090
language about, you know, instruments, licenses,

00:40:54.610 --> 00:40:57.590
or otherwise as another layer of breadth in this

00:40:57.590 --> 00:40:59.110
particular section. Counsel, would you listen

00:40:59.110 --> 00:41:01.690
to my question? You're not relying on license

00:41:01.690 --> 00:41:05.389
for the reason I just said, because it is a noun,

00:41:05.530 --> 00:41:08.989
not the verb. You're relying on regulate, correct?

00:41:09.389 --> 00:41:12.329
Yes, we're going to regulate importation. And

00:41:12.329 --> 00:41:16.210
despite the fact that no other president in the

00:41:16.210 --> 00:41:24.010
history of AEPA has ever used tariffs as a power

00:41:24.010 --> 00:41:27.449
under AEPA. Well, President Nixon did so under...

00:41:27.449 --> 00:41:29.929
Under a predecessor, and we have all the limitations

00:41:29.929 --> 00:41:34.869
of that. All right. Number two, whenever Congress

00:41:34.869 --> 00:41:39.849
intends to permit taxing and regulate, it uses

00:41:39.849 --> 00:41:43.250
the word tax and regulate in every other statute,

00:41:43.530 --> 00:41:46.949
correct? I don't see that. I mean, two very visible

00:41:46.949 --> 00:41:50.230
examples again are Tuia and Section 122. We're

00:41:50.230 --> 00:41:53.469
back to the question here. Okay. Thank you, counsel.

00:41:54.309 --> 00:41:57.630
Justice Sotomayor. No, she's Justice Sotomayor.

00:42:00.550 --> 00:42:07.280
She just finished. Justice Kagan. And they're

00:42:07.280 --> 00:42:11.780
friends? I want to take you back to Justice Thomas's

00:42:11.780 --> 00:42:14.039
question about non -delegation. And if I understood

00:42:14.039 --> 00:42:16.340
your answer correctly, it was really similar

00:42:16.340 --> 00:42:18.639
to the answer that you started off with when

00:42:18.639 --> 00:42:20.960
you talked with Justice Thomas about the major

00:42:20.960 --> 00:42:23.519
questions doctrine, which is sort of everything's

00:42:23.519 --> 00:42:26.300
different because the president has independent

00:42:26.300 --> 00:42:31.170
constitutional powers in this area. if one does

00:42:31.170 --> 00:42:34.230
not think that with respect to tariffs, if one

00:42:34.230 --> 00:42:37.829
thinks that a tariff is a taxing power, is a

00:42:37.829 --> 00:42:41.250
regulation of foreign commerce that is really

00:42:41.250 --> 00:42:45.210
delegated by the Constitution to Congress, that

00:42:45.210 --> 00:42:49.489
argument does not sound so well. And in fact,

00:42:49.630 --> 00:42:52.449
when you look at J .W. Hampton, which gives rise

00:42:52.449 --> 00:42:55.710
to the non -delegation test that we usually use,

00:42:56.389 --> 00:42:59.679
J .W. Hampton is a tariffs case. And the court

00:42:59.679 --> 00:43:02.579
did not say, oh, we need some special new principle

00:43:02.579 --> 00:43:05.639
here, some stricter rule, because we're dealing

00:43:05.639 --> 00:43:08.719
with tariffs in which presidents are directly

00:43:08.719 --> 00:43:12.360
concerned as a matter of foreign relations. It

00:43:12.360 --> 00:43:15.500
enunciated the test we use for all non -delegations.

00:43:15.860 --> 00:43:18.440
So how does that fit with your theory? Eight

00:43:18.440 --> 00:43:21.039
years later, in Curtis Wright, the court held

00:43:21.039 --> 00:43:23.119
the non -delegation doctrine for domestic affairs

00:43:23.119 --> 00:43:26.019
does not apply with the same forces. But not

00:43:26.019 --> 00:43:28.380
with respect to tariffs, not with respect to

00:43:28.380 --> 00:43:30.940
quintessential taxing powers, which are given

00:43:30.940 --> 00:44:02.420
by the Constitution to... Congress. of the Republic

00:44:02.420 --> 00:44:05.260
in 1790, for example, Congress conferred on President

00:44:05.260 --> 00:44:07.639
Washington basically the entire Indian commerce

00:44:07.639 --> 00:44:11.320
power is that go get licenses to do commerce

00:44:11.320 --> 00:44:12.920
with the Indians and they'll be subject to whatever

00:44:12.920 --> 00:44:14.760
rules and regulations President Washington can

00:44:14.760 --> 00:44:18.400
make. So I do think there is a profound consistency

00:44:18.400 --> 00:44:21.119
between the announcement of the intelligible

00:44:21.119 --> 00:44:23.420
principle test in J .W. Hampton and then the

00:44:23.420 --> 00:44:25.980
subsequent recognition by this court in Curtis

00:44:25.980 --> 00:44:28.510
Wright that The non -delegation doctrine doesn't

00:44:28.510 --> 00:44:30.449
apply to the same force in this context. In consumers'

00:44:30.730 --> 00:44:33.869
research just last year, we had a tax before

00:44:33.869 --> 00:44:36.769
us and the question was, was this a delegation

00:44:36.769 --> 00:44:41.969
issue? It was of course a much smaller tax, which

00:44:41.969 --> 00:44:47.110
dealt with many fewer taxpayers. Notwithstanding

00:44:47.110 --> 00:44:50.090
that, we said if there's no ceiling on this tax,

00:44:50.320 --> 00:44:52.820
We sort of assumed that if there were no ceiling

00:44:52.820 --> 00:44:55.940
on this tax, it would raise a delegation problem.

00:44:56.739 --> 00:45:00.059
And most of the opinion was given over to showing

00:45:00.059 --> 00:45:02.739
that there in fact was a ceiling on the tax,

00:45:02.780 --> 00:45:05.679
not a quantitative one, but a qualitative one.

00:45:06.420 --> 00:45:09.659
But how does your argument fit with the idea

00:45:09.659 --> 00:45:13.199
that a tax with no ceiling, a tax that can be

00:45:13.199 --> 00:45:16.119
anything, that here the president wants, there

00:45:16.119 --> 00:45:20.719
an agency wants, would raise a pretty deep delegation

00:45:20.719 --> 00:45:23.210
problem. First of all, I can't say enough, it

00:45:23.210 --> 00:45:26.190
is a regulatory tariff, not a tax. And that,

00:45:26.190 --> 00:45:28.650
I think, ties to my response to that, which is

00:45:28.650 --> 00:45:30.829
that this is a totally different context. This

00:45:30.829 --> 00:45:33.750
is IEPA, a statute that Congress carefully crafted

00:45:33.750 --> 00:45:36.610
to grant the president admittedly broad powers

00:45:36.610 --> 00:45:39.110
to address foreign arising emergencies. It's

00:45:39.110 --> 00:45:41.329
outward facing to foreign affairs, where there's

00:45:41.329 --> 00:45:43.510
the broadest level of deference to the political

00:45:43.510 --> 00:45:45.230
branches of this court as recognized in many

00:45:45.230 --> 00:45:47.989
cases. And it imposed not a floor or limit on

00:45:47.989 --> 00:45:49.369
the amount of a tariff that could be imposed,

00:45:49.429 --> 00:45:51.539
very naturally, because For example, as this

00:45:51.539 --> 00:45:54.059
court said in Loving, quoting Alexander Hamilton

00:45:54.059 --> 00:45:56.239
in the Federalist Number 23, it's impossible

00:45:56.239 --> 00:45:59.980
to foresee either what exigencies may arise or

00:45:59.980 --> 00:46:01.659
what tools may be needed to address those exigencies,

00:46:01.780 --> 00:46:03.480
the means that may be required to address those

00:46:03.480 --> 00:46:06.130
exigencies. Instead... Congress grant very broad

00:46:06.130 --> 00:46:07.989
powers, but they're confined to a particular

00:46:07.989 --> 00:46:10.929
domain. This domain is any property in which

00:46:10.929 --> 00:46:13.690
any foreign government or any national thereof

00:46:13.690 --> 00:46:16.650
has any interest. So the sort of discipline,

00:46:16.730 --> 00:46:18.389
if one were to apply, we say you shouldn't, but

00:46:18.389 --> 00:46:21.510
if you were to apply the non -delegation doctrine,

00:46:21.909 --> 00:46:23.570
the domestic -facing non -delegation doctrine

00:46:23.570 --> 00:46:26.150
in this context, there's a significant limitation

00:46:26.150 --> 00:46:29.409
there. Yeah, so my last question really does

00:46:29.409 --> 00:46:32.380
have to do with that point, which is how or whether

00:46:32.380 --> 00:46:35.239
this is confined, because if you look at Title

00:46:35.239 --> 00:46:38.659
19, which is loaded with tariffs and duties of

00:46:38.659 --> 00:46:42.500
various kinds, all of them have real constraints

00:46:42.500 --> 00:46:45.719
on them. They are, you know, you can't go over

00:46:45.719 --> 00:46:49.179
X percent or it can't last more than one year.

00:46:49.599 --> 00:46:52.900
And of course, the way you interpret this statute,

00:46:53.159 --> 00:46:55.900
it has none of those constraints. And the question

00:46:55.900 --> 00:47:00.639
arises why it is that any president ever would

00:47:00.639 --> 00:47:05.199
look to the tariffs in Title 19 if sub -celentia,

00:47:05.239 --> 00:47:08.119
if you will, this statute gives the president

00:47:08.119 --> 00:47:12.789
the opportunity to blow past those limits. This

00:47:12.789 --> 00:47:15.130
statute has its own constraints. They are constraints

00:47:15.130 --> 00:47:17.110
that are appropriate for the context, which is

00:47:17.110 --> 00:47:19.050
internationally arising emergencies. They are

00:47:19.050 --> 00:47:21.269
carefully crafted by Congress to address that,

00:47:21.489 --> 00:47:23.250
and they are admittedly different. They're in

00:47:23.250 --> 00:47:25.570
section 1701. The president has to make a formal

00:47:25.570 --> 00:47:27.590
declaration of a national emergency, which subjects

00:47:27.590 --> 00:47:31.530
him to particularly intensive oversight by Congress,

00:47:31.849 --> 00:47:34.809
you know, natural lapsing, repeated review, reports,

00:47:35.210 --> 00:47:36.989
and so forth. It says you have to consult with

00:47:36.989 --> 00:47:38.769
Congress to the maximum possible. I mean, you

00:47:38.769 --> 00:47:41.110
yourself think that the declaration of emergency

00:47:41.110 --> 00:47:44.130
is unreviewable. And even if it's not unreviewable,

00:47:44.489 --> 00:47:46.590
it's of course the kind of determination that

00:47:46.590 --> 00:47:49.070
this court would grant considerable deference

00:47:49.070 --> 00:47:52.090
to the president on. So that doesn't seem like

00:47:52.090 --> 00:47:57.769
much of a constraint. which deals with the president's

00:47:57.769 --> 00:47:59.949
emergency powers. And it turns out we're in emergencies

00:47:59.949 --> 00:48:02.849
everything all the time, about half the world.

00:48:03.349 --> 00:48:05.030
Well, this particular emergency is particularly

00:48:05.030 --> 00:48:07.949
existential, as Executive Order 14257 says. And

00:48:07.949 --> 00:48:09.809
of course, no one disputes the existential nature

00:48:09.809 --> 00:48:13.130
of the Fentanyl crisis, which we had an agreement

00:48:13.130 --> 00:48:15.670
last week to create progress on, which illustrates

00:48:15.670 --> 00:48:17.170
the effectiveness of the terrorist tool here.

00:48:17.469 --> 00:48:19.010
But the point I would make in response to that

00:48:19.010 --> 00:48:21.789
is, even if there's limited judicial review,

00:48:21.809 --> 00:48:23.389
which is very natural in the forward affairs

00:48:23.389 --> 00:48:26.309
context, this court has always always granted

00:48:26.309 --> 00:48:28.750
the President the presumption that he's acting

00:48:28.750 --> 00:48:30.570
in good faith. There are real hurdles there,

00:48:30.650 --> 00:48:31.969
very significant. It's got to be an unusual,

00:48:31.969 --> 00:48:34.090
extraordinary threat that arises in whole or

00:48:34.090 --> 00:48:35.909
substantial part outside the United States, so

00:48:35.909 --> 00:48:38.550
it's entirely foreign facing, into the national

00:48:38.550 --> 00:48:42.110
security economy or foreign policy of the United

00:48:42.110 --> 00:48:46.110
States. So there are those. Then there's 1701B,

00:48:46.130 --> 00:48:47.590
which talks about how it can be used for this

00:48:47.590 --> 00:48:50.190
and for no other purpose. Then there are limitations

00:48:50.190 --> 00:48:53.190
in section 1702B. Then there is the limitations

00:48:53.190 --> 00:48:54.710
that I referred to earlier about what he can

00:48:54.760 --> 00:48:57.079
actually do. He can do a heck of a lot, but only

00:48:57.079 --> 00:48:58.739
when he's dealing with property in which foreigners

00:48:58.739 --> 00:49:00.880
have an interest. And that's a pretty narrow

00:49:00.880 --> 00:49:03.639
domain. That's quite a silo, so to speak. And

00:49:03.639 --> 00:49:05.420
then, of course, overarching it all, there's

00:49:05.420 --> 00:49:07.179
congressional oversight. And you may say congressional

00:49:07.179 --> 00:49:09.199
oversight may not have much bite, but Congress

00:49:09.199 --> 00:49:11.980
didn't think so. Congress crafted this compromise.

00:49:12.179 --> 00:49:14.599
It balanced the never -ending tension. When it

00:49:14.599 --> 00:49:17.739
drafted it, it had its eyes open. As the descent

00:49:17.739 --> 00:49:20.000
below says, its eyes open looking at the problem

00:49:20.000 --> 00:49:23.260
of sweeping emergency powers for an executive

00:49:23.260 --> 00:49:25.820
who may them in a way that's excessive versus

00:49:25.820 --> 00:49:27.579
the need to address unforeseeable emergencies.

00:49:27.599 --> 00:49:31.000
Thank you, General. Justice Gorsuch. General,

00:49:31.199 --> 00:49:33.059
just a few questions following up on the major

00:49:33.059 --> 00:49:37.039
questions, discussions you've had. You say that

00:49:37.039 --> 00:49:40.300
we shouldn't be so concerned in the area of foreign

00:49:40.300 --> 00:49:43.219
affairs because of the President's inherent powers.

00:49:43.760 --> 00:49:46.099
That's the gist of it, as I understand it, why

00:49:46.099 --> 00:49:48.380
we should disregard both major questions and

00:49:48.380 --> 00:49:51.860
non -delegation. So could Congress delegate to

00:49:51.860 --> 00:49:55.139
the President the power to regulate commerce

00:49:55.139 --> 00:49:59.019
with foreign nations as he sees fit? To lay and

00:49:59.019 --> 00:50:03.300
collect duties as he sees fit? We don't assert

00:50:03.300 --> 00:50:05.179
that here. That would be a much harder case now

00:50:05.179 --> 00:50:08.280
in 1790. Isn't that the logic of your view, though?

00:50:08.300 --> 00:50:09.739
I don't think so, because we're dealing with

00:50:09.739 --> 00:50:11.980
a statute that was a carefully crafted compromise.

00:50:12.139 --> 00:50:14.000
It does have all the limitations that I just

00:50:14.000 --> 00:50:17.000
talked about. You're saying we shouldn't be concerned

00:50:17.000 --> 00:50:19.699
with... I want to explain to me... how you draw

00:50:19.699 --> 00:50:21.820
the line, because you say we shouldn't be concerned

00:50:21.820 --> 00:50:23.500
because this is foreign affairs and the president

00:50:23.500 --> 00:50:27.619
has inherent authority, and so delegation off

00:50:27.619 --> 00:50:30.860
the books, more or less. And if that's true,

00:50:31.079 --> 00:50:34.239
what would prohibit Congress from just abdicating

00:50:34.239 --> 00:50:36.980
all responsibility to regulate foreign commerce,

00:50:37.460 --> 00:50:40.059
for that matter declare war, to the president?

00:50:40.769 --> 00:50:42.989
We don't contend that he could do that if it

00:50:42.989 --> 00:50:44.829
did. Why not? Well, because we're dealing with

00:50:44.829 --> 00:50:46.610
a statute again that has a whole... I'm not asking

00:50:46.610 --> 00:50:48.750
about the statute. General, I'm not asking about

00:50:48.750 --> 00:50:51.550
the statute. I'm asking for your theory of the

00:50:51.550 --> 00:50:54.409
Constitution and why the major questions of non

00:50:54.409 --> 00:50:56.710
-delegation... what bite it would have in that

00:50:56.710 --> 00:50:58.809
case. I would say by then you would move from

00:50:58.809 --> 00:51:00.670
the area where there's enormous deference to

00:51:00.670 --> 00:51:02.550
the president, actually both the political branches,

00:51:02.769 --> 00:51:04.730
where here there's inherent authority and piled

00:51:04.730 --> 00:51:06.150
on top of that there's a broad delegation. You're

00:51:06.150 --> 00:51:08.030
saying there's inherent authority in foreign

00:51:08.030 --> 00:51:10.489
affairs, all foreign affairs, so regulate commerce,

00:51:10.670 --> 00:51:16.030
duties and tariffs and war. It's inherent authority

00:51:16.030 --> 00:51:19.110
all the way down, you say. Fine. Congress decides

00:51:19.110 --> 00:51:21.690
tomorrow, well, we're tired of this legislating

00:51:21.690 --> 00:51:23.650
business. We're just going to hand it all off

00:51:23.650 --> 00:51:26.530
to the president. What would stop Congress from

00:51:26.530 --> 00:51:29.710
doing that? That would be different than a situation

00:51:29.710 --> 00:51:31.550
where there are meets and bounds, so to speak.

00:51:31.690 --> 00:51:33.670
It would be a wholesale application. You say,

00:51:33.889 --> 00:51:36.369
we are not here to judge meets and bounds when

00:51:36.369 --> 00:51:38.269
the foreign... That's what I'm struggling with.

00:51:38.489 --> 00:51:40.969
You'd have to have some test. And if it isn't

00:51:40.969 --> 00:51:43.590
the intelligible principle test, or something

00:51:43.590 --> 00:51:46.219
with more bite than that... You're saying it's

00:51:46.219 --> 00:51:48.719
something less. What is that less? I think what

00:51:48.719 --> 00:51:50.659
the court has said in its opinions is just that

00:51:50.659 --> 00:51:53.519
it applies with much less force, more limited

00:51:53.519 --> 00:51:55.980
application in this context. So perhaps the right

00:51:55.980 --> 00:51:58.159
to approach it is a very, very deferential application

00:51:58.159 --> 00:52:00.820
of the intelligible principle test, that sort

00:52:00.820 --> 00:52:02.780
of wholesale abdication of... All right, so now

00:52:02.780 --> 00:52:05.079
you're admitting that there is some non -delegation

00:52:05.079 --> 00:52:07.900
principle at play here, and therefore major questions

00:52:07.900 --> 00:52:10.219
as well. Is that right? It's very limited. Very,

00:52:10.239 --> 00:52:13.579
very deferential. And again, the phrase that

00:52:13.579 --> 00:52:15.079
Justice Jackson uses, it just doesn't... not

00:52:15.079 --> 00:52:17.199
apply. I know, but that's where you started off,

00:52:17.260 --> 00:52:19.159
and now you've retreated from that as I understand

00:52:19.159 --> 00:52:21.920
it. Well, I think we would, as our frontline

00:52:21.920 --> 00:52:23.659
position is a stronger position, but the court

00:52:23.659 --> 00:52:26.179
doesn't accept it, then if there is a highly

00:52:26.179 --> 00:52:28.059
- Can you give me a reason to accept it, though?

00:52:28.059 --> 00:52:30.260
That's what I'm struggling and waiting for. What's

00:52:30.260 --> 00:52:32.139
the reason to accept the notion that Congress

00:52:32.139 --> 00:52:34.559
can hand off the power to declare war to the

00:52:34.559 --> 00:52:36.780
President? Well, we don't content that. Again,

00:52:36.840 --> 00:52:39.219
that would be - Well, you do. You say it's unreviewable,

00:52:39.300 --> 00:52:41.340
there's no manageable standard, nothing to be

00:52:41.340 --> 00:52:44.130
done, and now you're - I think you - Tell me

00:52:44.130 --> 00:52:48.170
if I'm wrong. You backed off that position. Maybe

00:52:48.170 --> 00:52:49.889
that's fair to say. Okay, all right. That would

00:52:49.889 --> 00:52:52.670
be an abdication. That would really be an abdication,

00:52:52.789 --> 00:52:55.269
not a delegation. I'm delighted to hear that,

00:52:55.269 --> 00:52:59.050
you know. All right, and I wanted to return to

00:52:59.050 --> 00:53:01.750
something Justice Sotomayor asked under this

00:53:01.750 --> 00:53:04.050
statute, okay? So now we're in the statute. It's

00:53:04.050 --> 00:53:06.969
a major question though. Could the President

00:53:06.969 --> 00:53:11.329
impose a 50 % tariff on gas -powered cars and

00:53:11.329 --> 00:53:14.809
auto parts? to deal with the unusual and extraordinary

00:53:14.809 --> 00:53:18.150
threat from abroad of climate change. It's very

00:53:18.150 --> 00:53:21.050
likely that that could be done. I think that

00:53:21.050 --> 00:53:23.489
has to be the logic of your view. In other words,

00:53:24.150 --> 00:53:25.510
this administration would say that's a hoax,

00:53:25.570 --> 00:53:28.630
it's not a real crisis, but... I'm sure you would.

00:53:28.889 --> 00:53:30.269
Yes, but that would be a question for Congress

00:53:30.269 --> 00:53:31.809
under our interpretation, not for the courts.

00:53:31.889 --> 00:53:36.289
All right. And then, on this inherent authority

00:53:36.289 --> 00:53:40.889
idea, does... I understand the President's inherent

00:53:40.889 --> 00:53:43.130
authority in wartime, and a lot of your examples

00:53:43.130 --> 00:53:45.570
of regulating commerce and maybe your best one,

00:53:45.710 --> 00:53:48.730
Hamilton, during the Civil War, they occurred

00:53:48.730 --> 00:53:50.630
during wartime when the President's commander

00:53:50.630 --> 00:53:54.849
-in -chief power is clearly in play. Does the

00:53:54.849 --> 00:53:57.670
President have inherent authority over tariffs

00:53:57.670 --> 00:54:01.510
and peacetime? No, we do not contend that. And

00:54:01.510 --> 00:54:05.150
in fact, if I may, I point the court to two cases

00:54:05.150 --> 00:54:07.190
that are loving against United States and then

00:54:07.190 --> 00:54:09.610
Masary that cited in loving. Those are situations,

00:54:09.809 --> 00:54:11.789
for example, loving against United States. The

00:54:11.789 --> 00:54:13.969
president had broad Article II inherent authority.

00:54:14.150 --> 00:54:16.429
There was the commander -in -chief power. But

00:54:16.429 --> 00:54:18.489
this court held he does not have inherent authority

00:54:18.489 --> 00:54:20.829
to do the power that was delegated to him, which

00:54:20.829 --> 00:54:23.530
is the power to identify aggravators that make

00:54:23.530 --> 00:54:25.349
you eligible for the death penalty in court martial

00:54:25.349 --> 00:54:27.289
trials. And yet this court said, well, we're

00:54:27.289 --> 00:54:29.750
not going to see a delegation problem here, even

00:54:29.750 --> 00:54:31.489
though it's really a wholesale delegation, which

00:54:31.489 --> 00:54:33.530
would otherwise be legislative authority. It

00:54:33.530 --> 00:54:35.510
would be kind of like a small version of what

00:54:35.510 --> 00:54:37.090
you're hypothetical. It would be an abdication.

00:54:37.349 --> 00:54:39.010
But because you're in a foreign affairs context

00:54:39.010 --> 00:54:40.389
where they are commander -in -chief, military

00:54:40.389 --> 00:54:42.579
context, But the president has his own delegation

00:54:42.579 --> 00:54:44.420
of authority. He doesn't have the power to do

00:54:44.420 --> 00:54:46.599
this. But because of his background, inherent

00:54:46.599 --> 00:54:49.059
authority, the court said, this is a situation

00:54:49.059 --> 00:54:50.659
where we're not going to see a delegation problem

00:54:50.659 --> 00:54:52.320
when there clearly would have been a delegation

00:54:52.320 --> 00:54:54.400
problem in the domestic context. And those cases,

00:54:54.420 --> 00:54:56.219
I think, are powerful here. General, if I can

00:54:56.219 --> 00:54:59.079
cut through those words, I think you're saying

00:54:59.079 --> 00:55:01.579
that, no, the president doesn't have inherent

00:55:01.579 --> 00:55:04.280
authority over tariffs in peacetime. Absolutely.

00:55:04.659 --> 00:55:06.840
We do not assert that. We say that Congress can

00:55:06.840 --> 00:55:09.420
delegate that to him and when Congress does so,

00:55:09.500 --> 00:55:11.880
as it does when it uses the phrase, regulate

00:55:11.880 --> 00:55:18.099
importation. I follow all of that. You emphasize

00:55:18.099 --> 00:55:20.500
that Congress can always take back its powers.

00:55:20.960 --> 00:55:23.800
You mentioned that a couple of times. But don't

00:55:23.800 --> 00:55:27.039
we have a serious retrieval problem here? Because

00:55:27.039 --> 00:55:30.519
once Congress delegates by a bare majority, and

00:55:30.519 --> 00:55:32.099
the president signs it. And of course, every

00:55:32.099 --> 00:55:34.019
president will sign a law that gives him more

00:55:34.019 --> 00:55:38.360
authority. Congress can't take that back without

00:55:38.360 --> 00:55:42.139
a supermajority. And even then, it's going to

00:55:42.139 --> 00:55:44.559
be veto proof. What president's ever going to

00:55:44.559 --> 00:55:47.539
give that power back? Pretty rare president.

00:55:48.900 --> 00:55:53.150
So how should that inform our view of delegations

00:55:53.150 --> 00:55:54.769
and major questions. I would look at the balance

00:55:54.769 --> 00:55:56.489
that Congress struck because what Congress did

00:55:56.489 --> 00:55:58.690
initially it had a two -house legislative veto

00:55:58.690 --> 00:56:01.510
and we struck that down and then Congress went

00:56:01.510 --> 00:56:03.710
back to the statute and amended it. It took out

00:56:03.710 --> 00:56:06.110
the legislative veto and left in the joint resolution

00:56:06.110 --> 00:56:08.369
but still left the president with all those sponsors.

00:56:08.690 --> 00:56:12.469
That's what Congress did? Yes. Fair enough. As

00:56:12.469 --> 00:56:14.869
a practical matter, in the real world, it can

00:56:14.869 --> 00:56:17.170
never get that power back. I disagree because

00:56:17.170 --> 00:56:19.989
in January of 2023, Congress voted to terminate

00:56:19.989 --> 00:56:21.969
one of the biggest IEPA emergencies ever, the

00:56:21.969 --> 00:56:24.010
COVID emergency, and the president went along

00:56:24.010 --> 00:56:25.969
with that. So what the statute reflects is there's

00:56:25.969 --> 00:56:28.590
going to be the ability for a sort of political

00:56:28.590 --> 00:56:30.550
consensus against a declared emergency. What

00:56:30.550 --> 00:56:33.690
happens when the president simply vetoes legislation

00:56:33.690 --> 00:56:36.510
to try to take these powers back? Well, he has

00:56:36.510 --> 00:56:38.409
the authority to veto legislation to terminate

00:56:38.409 --> 00:56:40.050
a national emergency, for example. I mean, he

00:56:40.050 --> 00:56:41.650
retains the powers in the background because

00:56:41.650 --> 00:56:43.690
IEFA is still on the books. But if he declares

00:56:43.690 --> 00:56:45.349
an emergency and Congress doesn't like it and

00:56:45.349 --> 00:56:47.469
passes a joint resolution, yes, he can absolutely

00:56:47.469 --> 00:56:50.349
veto that. Congress is a practical matter. It

00:56:50.349 --> 00:56:52.769
can't get this power back once it's handed it

00:56:52.769 --> 00:56:54.949
over to the president. It's a one -way ratchet

00:56:54.949 --> 00:56:58.590
toward the gradual but continual accretion of

00:56:58.590 --> 00:57:01.130
power. in the executive branch and away from

00:57:01.130 --> 00:57:03.289
the people's elected representatives. I disagree

00:57:03.289 --> 00:57:05.429
with that, and the recent historical counterexample

00:57:05.429 --> 00:57:07.469
of Congress's termination of the COVID emergency

00:57:07.469 --> 00:57:10.730
demonstrates that political, the political oversight

00:57:10.730 --> 00:57:13.829
- With the president's assent. With the president's

00:57:13.829 --> 00:57:16.030
assent, in fact, you know - Once he lost it by

00:57:16.030 --> 00:57:17.650
a veto -proof majority in the Senate, I think

00:57:17.650 --> 00:57:19.469
the position - Yeah, right. I think he realized,

00:57:19.650 --> 00:57:21.530
and that's the political process working. There

00:57:21.530 --> 00:57:21.929
was a political consensus against it to coalesce.

00:57:21.949 --> 00:57:24.130
Yeah, it takes a supermajority, a veto -proof

00:57:24.130 --> 00:57:29.550
majority to get it back. Yeah. Okay. One other

00:57:29.550 --> 00:57:31.469
question. Do you think tariffs are always foreign

00:57:31.469 --> 00:57:36.630
affairs? I do think they would I can't think

00:57:36.630 --> 00:57:38.449
of a situation where they're not foreign -facing

00:57:38.449 --> 00:57:40.070
if you're talking about tariffs on imports. I

00:57:40.070 --> 00:57:42.250
mean Maybe there are other tariff contexts that

00:57:42.250 --> 00:57:43.929
I'm not aware of, but yes, they typically would

00:57:43.929 --> 00:57:46.630
involve a foreign affairs thing. However, in

00:57:46.630 --> 00:57:48.929
Gibbons against Ogden, if they are revenue -raising

00:57:48.929 --> 00:57:51.050
tariffs, they would not raise the same sort of

00:57:51.050 --> 00:57:53.650
foreign affairs issues as regulatory tariffs,

00:57:53.949 --> 00:57:55.710
which are imposed not for the purpose of raising

00:57:55.710 --> 00:57:57.909
revenue, but to induce foreign powers to change

00:57:57.909 --> 00:58:00.190
their behaviors. So revenue -raising tariffs

00:58:00.190 --> 00:58:02.769
are not foreign affairs, but regulatory tariffs

00:58:02.769 --> 00:58:05.690
are. I don't think a revenue -raising tariff

00:58:05.690 --> 00:58:07.250
would be foreign affairs to the same degree,

00:58:07.269 --> 00:58:08.750
at least. I think it has a foreign application,

00:58:08.789 --> 00:58:10.690
obviously, but I don't think it would raise the

00:58:10.690 --> 00:58:14.190
same issues. Thank you, General. Justice Kavanaugh.

00:58:14.670 --> 00:58:17.489
Figuring out what regulate importation means

00:58:17.489 --> 00:58:20.869
is obviously central here. And for major question

00:58:20.869 --> 00:58:24.889
purposes, I think the way we think about that

00:58:24.889 --> 00:58:30.730
kind of question is, does the specific authority,

00:58:30.969 --> 00:58:34.949
power, major power, now asserted pursuant to

00:58:34.949 --> 00:58:38.409
that general statutory authorization. Was that

00:58:38.409 --> 00:58:43.050
the kind of power that would have been understood

00:58:43.050 --> 00:58:47.269
by people, by Congress at the time the general

00:58:47.269 --> 00:58:50.449
statute was passed, as distinct from being a

00:58:50.449 --> 00:58:54.050
novel kind of use of that general authority to

00:58:54.050 --> 00:58:56.829
do something different? Unheralded is the word

00:58:56.829 --> 00:59:01.579
in our cases. Okay. One problem you have is that

00:59:01.579 --> 00:59:05.440
President Sencaipa have not done this. Your primary

00:59:05.440 --> 00:59:07.780
answer, or one of your many answers to that,

00:59:07.960 --> 00:59:10.980
is the Nixon example. And that's a good example

00:59:10.980 --> 00:59:14.099
for you because Nixon relied on regulate importation

00:59:14.099 --> 00:59:17.500
to impose a worldwide tariff. Good example. What

00:59:17.500 --> 00:59:22.559
is our understanding of Congress in 1977 vis

00:59:22.559 --> 00:59:26.159
-a -vis that Nixon example when Congress re -enacts

00:59:26.159 --> 00:59:30.440
or enacts the regulate importation language into

00:59:30.440 --> 00:59:34.500
IEPA. Congress at that time was fully aware that

00:59:34.500 --> 00:59:37.019
a Court of Appeals with exclusive jurisdiction

00:59:37.019 --> 00:59:39.280
had interpreted that very phrase, very visibly,

00:59:39.400 --> 00:59:41.880
very prominently, to include the power to tariff,

00:59:41.920 --> 00:59:44.360
and then reenacted it without change. The court

00:59:44.360 --> 00:59:47.199
addressed a kind of lesser situation in Algonquin

00:59:47.199 --> 00:59:49.440
when it came to section 122, and the court said

00:59:49.440 --> 00:59:53.940
President Nixon interpreted this to include a

00:59:53.940 --> 00:59:56.880
tariffing -like power. And then Congress, a few

00:59:56.880 --> 00:59:58.440
months later, reenacted the language without

00:59:58.440 --> 01:00:00.179
change, and that's powerful evidence of congressional

01:00:00.179 --> 01:00:02.900
acquiescence. So the historical background is

01:00:02.900 --> 01:00:04.719
very powerful, and it's buttressed, of course,

01:00:04.679 --> 01:00:07.440
by sources going back to the founding where we

01:00:07.440 --> 01:00:10.139
say the phrase regulated importation, a quintessential

01:00:10.139 --> 01:00:12.699
application of that is the power to tariff. That's

01:00:12.699 --> 01:00:14.300
how you regulate import system. Why, this may

01:00:14.300 --> 01:00:16.800
require some speculation on your part, economic

01:00:16.800 --> 01:00:20.739
philosophy, et cetera, but I'll ask it. Why do

01:00:20.739 --> 01:00:25.119
you think Presidents Clinton, Bush, Obama have

01:00:25.119 --> 01:00:30.820
not used IEPA to impose tariffs on, because there

01:00:30.820 --> 01:00:34.090
have been trade disputes and certainly you know,

01:00:34.230 --> 01:00:36.789
President Bush, stealing ports and the like.

01:00:37.150 --> 01:00:39.489
Why do you think IEPA has not been used? If you

01:00:39.489 --> 01:00:41.530
look at those 69 emergencies, in fact, you go

01:00:41.530 --> 01:00:43.010
through them one at a time, which we had our

01:00:43.010 --> 01:00:45.550
team do, it's really hard to find one. When you

01:00:45.550 --> 01:00:47.679
look at that emergency, you say, oh. tariffs

01:00:47.679 --> 01:00:49.760
is the natural tool you would use to address

01:00:49.760 --> 01:00:52.300
that emergency. So, for example, the blood diamond

01:00:52.300 --> 01:00:55.219
emergency, you know, tariffing these sort of,

01:00:55.219 --> 01:00:57.219
you know, criminal organizations in Africa that

01:00:57.219 --> 01:00:58.940
are financing terrorism to the sale of diamonds,

01:00:59.000 --> 01:01:00.699
you don't really tariff them. Or you take, you

01:01:00.699 --> 01:01:03.579
know, the Iranian hostage crisis, President Carter

01:01:03.579 --> 01:01:05.440
didn't say, oh, you've seized all of our, you

01:01:05.440 --> 01:01:06.900
know, embassy personnel, you're holding them

01:01:06.900 --> 01:01:08.619
hostage, we're going to tariff you, right? And

01:01:08.619 --> 01:01:09.900
if you go through those emergencies, there are

01:01:09.900 --> 01:01:11.500
two emergencies, though, where tariffs are the

01:01:11.500 --> 01:01:14.340
obvious natural tool for a president to use.

01:01:14.599 --> 01:01:16.360
One is the Nixon balance of payments deficit.

01:01:16.539 --> 01:01:20.099
a problem, and the other is this particular emergency.

01:01:20.340 --> 01:01:23.159
And also, there's political reason. I think it's

01:01:23.159 --> 01:01:25.199
no question that President Trump is by far the

01:01:25.199 --> 01:01:28.400
most comfortable with the tariffs as a tool,

01:01:28.679 --> 01:01:31.480
both of economic and foreign policy, than many

01:01:31.480 --> 01:01:33.880
of the other presidents may have been. I mean,

01:01:34.019 --> 01:01:35.880
there are presidents like President Bush who

01:01:35.880 --> 01:01:38.440
probably wouldn't have naturally selected that

01:01:38.440 --> 01:01:40.360
particular tool or method. But if you go through

01:01:40.360 --> 01:01:42.699
all 69 of those intervening emergencies, what

01:01:42.699 --> 01:01:44.500
they have not done, at least, is they have not

01:01:44.500 --> 01:01:46.250
identified or they say, oh, here's one where

01:01:46.250 --> 01:01:48.309
tariffs would have been the obvious tool, but

01:01:48.309 --> 01:01:52.409
the President didn't use it. Algonquin, as you've

01:01:52.409 --> 01:01:54.449
mentioned many times, is obviously very important

01:01:54.449 --> 01:01:57.210
here for us to understand exactly what's going

01:01:57.210 --> 01:01:59.769
on in Algonquin. The phrase there is different,

01:02:00.369 --> 01:02:03.690
adjust imports, and they really, the other side,

01:02:03.730 --> 01:02:05.329
your friend on the other side, really relies

01:02:05.329 --> 01:02:07.510
on the difference in language. I just want you

01:02:07.510 --> 01:02:14.090
to give your best answer to why regulate importation

01:02:14.090 --> 01:02:20.719
encompasses tariffs, when adjust, we held that

01:02:20.719 --> 01:02:24.519
adjust imports would encompass monetary exactions.

01:02:25.400 --> 01:02:28.300
Three answers, if I may. Adjust is narrower than

01:02:28.300 --> 01:02:31.380
regulate. And so, therefore, the writer includes

01:02:31.380 --> 01:02:32.900
the last year. So it follows. Second answer.

01:02:33.239 --> 01:02:37.400
adjust is the second Black's law dictionary definition

01:02:37.400 --> 01:02:40.940
of regulate. The original plain meaning dictionary

01:02:40.940 --> 01:02:44.639
definition says adjust by rule mode or rule method

01:02:44.639 --> 01:02:47.079
or established mode. So there's just a plain

01:02:47.079 --> 01:02:50.880
meaning link there. Regulate, adjust is a kind

01:02:50.880 --> 01:02:53.559
of regulation. And then I think far more importantly,

01:02:53.960 --> 01:02:55.780
regulate importation. I can't emphasize enough.

01:02:56.260 --> 01:02:58.340
Going back to the time of the founding, going

01:02:58.340 --> 01:03:00.460
back to the time of the founding has been understood

01:03:00.460 --> 01:03:03.449
that the manner in which you regulate importation.

01:03:03.750 --> 01:03:05.969
The natural way to do that is to tariff. So it

01:03:05.969 --> 01:03:08.250
would be textually astonishing given that historical

01:03:08.250 --> 01:03:10.989
pedigree going back to Gibbons, going back to

01:03:10.989 --> 01:03:13.090
Madison's letter to Cabell and all the historical

01:03:13.090 --> 01:03:14.750
sources cited in our briefs, it would be kind

01:03:14.750 --> 01:03:16.730
of astonishing to say, hey, President, you can

01:03:16.730 --> 01:03:19.409
regulate imports, but we're not saying this explicitly,

01:03:19.489 --> 01:03:21.489
but you do not have the power to tariff when

01:03:21.489 --> 01:03:24.650
the tariffing is in many ways the quintessential

01:03:24.650 --> 01:03:27.570
way of regulating importation. So that historical

01:03:27.570 --> 01:03:31.170
pedigree sort of gives freighted meaning to that

01:03:31.170 --> 01:03:35.039
two word phrase. And last, you had some discussion

01:03:35.039 --> 01:03:38.699
about license fee versus tariffs, if there's

01:03:38.699 --> 01:03:42.159
a distinction. I mean, the Council in the oral

01:03:42.159 --> 01:03:44.619
argument in Algonquin said they're all monies

01:03:44.619 --> 01:03:46.840
exacted on imports, so in that sense it certainly

01:03:46.840 --> 01:03:48.900
is a tariff, and hence all the incidents and

01:03:48.900 --> 01:03:52.000
the economic effect of a tariff. But we can't

01:03:52.000 --> 01:03:55.400
rely on what the Council said in Algonquin. You

01:03:55.400 --> 01:04:00.449
know, isn't there a difference? of sorts, at

01:04:00.449 --> 01:04:02.750
least, between a tariff and a license fee. You

01:04:02.750 --> 01:04:04.889
answered this, I think, briefly before, but I

01:04:04.889 --> 01:04:06.409
want to make sure, because I think this could

01:04:06.409 --> 01:04:08.190
be an important point, because I want to know

01:04:08.190 --> 01:04:11.289
Algonquin to decide this case. So give me a best

01:04:11.289 --> 01:04:14.230
shot on that. I agree that there is maybe a minor,

01:04:14.230 --> 01:04:16.530
there's a formal distinction. But as a practical

01:04:16.530 --> 01:04:18.869
matter, I think what Council was probably arguing

01:04:18.869 --> 01:04:20.789
there is that there really isn't much of an important

01:04:20.789 --> 01:04:23.409
distinction and I would point to the passage

01:04:23.409 --> 01:04:25.690
in Algonquin where the court says look they've

01:04:25.690 --> 01:04:27.750
conceded that this includes the power to quota

01:04:27.750 --> 01:04:30.110
and since quotas are a quantitative mess it would

01:04:30.110 --> 01:04:32.469
make no sense for Congress not to grant the qualitative

01:04:32.469 --> 01:04:34.550
method, and all the more so here, if there's

01:04:34.550 --> 01:04:36.429
a concession, as they do in some of the red books.

01:04:36.429 --> 01:04:38.989
One time the court said, monetary methods, i

01:04:38.989 --> 01:04:41.409
.e. license fees. And the next page said, monetary

01:04:41.409 --> 01:04:45.250
exactions, i .e. license fees and duties. I think

01:04:45.250 --> 01:04:46.909
the court bought the argument correctly. It's

01:04:46.909 --> 01:04:48.429
important to be consistent. There's really not

01:04:48.429 --> 01:04:50.329
a lot of daylight between those two. As a practical

01:04:50.329 --> 01:04:52.150
matter, certainly almost no daylight. And so

01:04:52.150 --> 01:04:54.210
then the question that you say. You say, almost

01:04:54.210 --> 01:04:58.500
no daylight. I mean, I would say that they're

01:04:58.500 --> 01:05:00.760
economic equivalents. Legally, they're pretty

01:05:00.760 --> 01:05:03.280
much the same. So I really don't see a big distinction

01:05:03.280 --> 01:05:06.139
there. And of course, the logic of Algonquin

01:05:06.139 --> 01:05:10.860
was quantitative methods, quotas are allowed.

01:05:11.159 --> 01:05:12.760
Therefore, it would make no sense at all to interpret

01:05:12.760 --> 01:05:15.400
this not to include the qualitative or the monetary

01:05:15.400 --> 01:05:17.780
exaction methods. Well, if we're talking about

01:05:17.780 --> 01:05:19.239
a distinction between regulated importation,

01:05:19.320 --> 01:05:21.119
including licenses that could come with fees,

01:05:21.400 --> 01:05:24.360
but not tariffs, that logic applies all the more

01:05:24.360 --> 01:05:26.590
so. Thank you. It makes no sense. Justice Barrett.

01:05:27.530 --> 01:05:29.530
Well, I think in Algonquin there was a formal

01:05:29.530 --> 01:05:31.349
distinction that mattered because at that oral

01:05:31.349 --> 01:05:34.789
argument, counsel pointed out that the uniformity

01:05:34.789 --> 01:05:38.030
clause would kick in and the constitutional uniformity

01:05:38.030 --> 01:05:41.050
requirement would apply to tariffs, if it was

01:05:41.050 --> 01:05:43.530
that way, and speculated that the reason that

01:05:43.530 --> 01:05:45.409
the government may have set it up as a licensing

01:05:45.409 --> 01:05:48.210
scheme with licensing fees was to avoid that.

01:05:48.230 --> 01:05:50.909
So I do think there are some distinctions, but

01:05:50.909 --> 01:05:53.190
keeping that in mind, if you say that there really

01:05:53.190 --> 01:05:55.710
is, as a practical matter, no difference, This

01:05:55.710 --> 01:05:57.710
is kind of what I'm hung up on in license that

01:05:57.710 --> 01:06:02.409
maybe you can help. So in IEPA, Justice Sotomayor

01:06:02.409 --> 01:06:05.469
is right, license is used as a noun, but it's

01:06:05.469 --> 01:06:07.750
one of the means necessary. So in Algonquin,

01:06:07.829 --> 01:06:11.530
it was by any means necessary adjust. Here the

01:06:11.530 --> 01:06:14.610
statute says the president may, under such regulations

01:06:14.610 --> 01:06:18.130
as he may prescribe, by means of instructions,

01:06:18.590 --> 01:06:22.429
licenses, or otherwise, regulate importation,

01:06:22.530 --> 01:06:25.280
which is. the key part for our purposes. So the

01:06:25.280 --> 01:06:28.320
means it specifies are instructions, licenses,

01:06:28.639 --> 01:06:33.179
or otherwise. So I think it would, I mean, one

01:06:33.179 --> 01:06:35.780
argument might be that it would have been natural

01:06:35.780 --> 01:06:39.420
for Congress to put the President may by means

01:06:39.420 --> 01:06:43.300
of instructions, licenses, tariffs, or otherwise,

01:06:43.900 --> 01:06:46.039
with an adjunct and generous thing, I think you

01:06:46.039 --> 01:06:49.139
have to rely on the or otherwise picking up more.

01:06:49.519 --> 01:06:51.840
Or if there really is no practical difference

01:06:51.840 --> 01:06:53.800
between licenses and tariffs, why aren't you

01:06:53.800 --> 01:06:56.199
making the argument, or why didn't the president

01:06:56.199 --> 01:07:00.260
structure this as a licensing fee scheme? How

01:07:00.260 --> 01:07:03.280
do I understand that language? Or am I just misunderstanding

01:07:03.280 --> 01:07:04.719
it, and this language is totally irrelevant?

01:07:06.000 --> 01:07:08.260
Here's the way I'd respond to that. I think that

01:07:08.260 --> 01:07:10.260
language powerfully reinforces our position,

01:07:10.500 --> 01:07:12.820
as the way you've laid it out right there. Because

01:07:12.820 --> 01:07:16.809
first of all, regular importation we say, and

01:07:16.809 --> 01:07:19.710
based on extensive historical pedigree, the core

01:07:19.710 --> 01:07:22.150
application of that is tariffing. To list tariffing

01:07:22.150 --> 01:07:23.889
again would have been essentially redundant and

01:07:23.889 --> 01:07:26.090
unnecessary, especially if you look at the specific

01:07:26.090 --> 01:07:28.369
historical background of Tuia, where Tuia was

01:07:28.369 --> 01:07:30.889
enacting a tariffing power or a licensing -like

01:07:30.889 --> 01:07:33.530
power that was described as, again, duties and

01:07:33.530 --> 01:07:35.769
tariffs equivalently. OK, but I don't understand,

01:07:35.849 --> 01:07:39.710
because I think you have to put together A1 and

01:07:39.710 --> 01:07:42.619
then... So I think what you would be saying is,

01:07:42.940 --> 01:07:47.599
he may prescribe by means of tariffs. I think

01:07:47.599 --> 01:07:50.019
what you're saying is by means of instruments,

01:07:50.659 --> 01:07:52.820
licenses, or otherwise. By instructions, licenses,

01:07:53.079 --> 01:07:59.760
or otherwise imposed tariffs? If you say instructions,

01:07:59.880 --> 01:08:01.599
license, or otherwise, and we're asserting a

01:08:01.599 --> 01:08:04.199
power that's very, very similar to licensing,

01:08:04.780 --> 01:08:06.619
otherwise naturally carries that with it. But

01:08:06.619 --> 01:08:07.980
that's not our principal position. Our principal

01:08:07.980 --> 01:08:10.190
position is regular importation means that. So

01:08:10.190 --> 01:08:13.150
you don't need to say it again. However, if Congress

01:08:13.150 --> 01:08:15.170
has authorized them to do it by licenses that

01:08:15.170 --> 01:08:17.210
could come with fees that are economically equivalent

01:08:17.210 --> 01:08:20.189
to tariffs, and then it says otherwise, that

01:08:20.189 --> 01:08:22.250
just reinforces the same conclusion that we get

01:08:22.250 --> 01:08:24.109
by using the phrase. Okay, then question just

01:08:24.109 --> 01:08:26.210
to follow up on Justice Gorsuch's thing about

01:08:26.210 --> 01:08:28.350
how can Congress ever get this delegation back.

01:08:28.890 --> 01:08:31.449
You said, well listen, you point to the Congress's

01:08:31.449 --> 01:08:33.470
ability to terminate emergencies, which it's

01:08:33.470 --> 01:08:35.970
done. But if Congress ever wanted to get the

01:08:35.970 --> 01:08:39.199
tariffing power back? it would have to have a

01:08:39.199 --> 01:08:42.060
veto -proof majority because, regardless of the

01:08:42.060 --> 01:08:44.319
emergency, so if Congress wanted to reject the,

01:08:44.399 --> 01:08:46.500
let's say that we adopt your interpretation of

01:08:46.500 --> 01:08:49.760
the statute, if Congress said, whoa, we don't

01:08:49.760 --> 01:08:51.920
like that, that gives a president too much authority

01:08:51.920 --> 01:08:54.920
under AIIPA, it's gonna have a very hard time

01:08:54.920 --> 01:08:57.819
pulling the tariff power out of AIIPA, correct?

01:08:58.819 --> 01:09:00.260
I don't know if it'd be a hard time, certainly

01:09:00.260 --> 01:09:01.760
would have to have a statute amendment, which

01:09:01.760 --> 01:09:03.619
would be the true of any case when this court

01:09:03.619 --> 01:09:07.750
definitively interprets a statute. But definitively

01:09:07.750 --> 01:09:10.229
interpreting a statute that grants presidential

01:09:10.229 --> 01:09:14.329
power makes it particularly hard to get the president

01:09:14.329 --> 01:09:17.909
to not want to veto something which, as Justice

01:09:17.909 --> 01:09:20.470
Gorsuch is pointing out, has him lose power.

01:09:21.869 --> 01:09:23.350
All right. I want to ask you a question about

01:09:23.350 --> 01:09:25.350
unusual and extraordinary threats, which we have

01:09:25.350 --> 01:09:27.449
not talked about yet. And I specifically want

01:09:27.449 --> 01:09:30.489
to talk about the reciprocal tariffs. These are

01:09:30.489 --> 01:09:32.890
imposed on, I mean, these are kind of across

01:09:32.890 --> 01:09:36.250
the board. And so is it your contention that

01:09:36.250 --> 01:09:39.250
every country needed to be tariffed because of

01:09:39.250 --> 01:09:43.819
threats to the defense and industrial base? Spain,

01:09:44.140 --> 01:09:46.079
France, I mean, I could see it with some countries,

01:09:46.239 --> 01:09:49.399
but explain to me why as many countries needed

01:09:49.399 --> 01:09:52.359
to be subject to the reciprocal tariff policy

01:09:52.359 --> 01:09:57.579
as are. Executive Order 14257 spells out the

01:09:57.579 --> 01:09:59.619
nature of the emergency and basically says that

01:09:59.619 --> 01:10:02.199
there's this... this sort of lack of reciprocity,

01:10:02.399 --> 01:10:06.140
this asymmetric treatment of our trade with respect

01:10:06.140 --> 01:10:08.180
to foreign countries' trade that does run across

01:10:08.180 --> 01:10:10.060
the board. This is a global problem. I think

01:10:10.060 --> 01:10:12.380
that puts in context the argument they make that

01:10:12.380 --> 01:10:13.899
this power to tariff is so broad because you're

01:10:13.899 --> 01:10:15.680
applying to every country in the world. That

01:10:15.680 --> 01:10:18.180
conflates the nature of the tool, tariffing,

01:10:18.180 --> 01:10:20.060
which they're challenging here, with the nature

01:10:20.060 --> 01:10:21.840
of the declared emergency, which they haven't

01:10:21.840 --> 01:10:23.779
disputed. They haven't disputed, for example,

01:10:23.779 --> 01:10:26.180
that the president has correctly identified that

01:10:26.180 --> 01:10:28.880
virtually every major trading partner has this

01:10:28.880 --> 01:10:31.810
long -standing So asymmetric unfair treatment

01:10:31.810 --> 01:10:34.989
of our trade. So the argument, this power is

01:10:34.989 --> 01:10:37.069
so broad, this power is so broad, is really based

01:10:37.069 --> 01:10:39.109
on a conflation of two different things. One

01:10:39.109 --> 01:10:41.449
is the power, right? Imagine this. Imagine that,

01:10:41.449 --> 01:10:44.189
for example, President Reagan had wanted to convince

01:10:44.189 --> 01:10:46.229
South Africa to change his apartheid policies,

01:10:46.489 --> 01:10:48.529
and he'd impose tariffs on them. No one would

01:10:48.529 --> 01:10:50.149
bat an eyelash and say, well, that's too broad.

01:10:50.170 --> 01:10:52.210
That's too broad. That can't be an IEPA. The

01:10:52.210 --> 01:10:54.770
power to tariff is a sort of fits naturally with

01:10:54.770 --> 01:10:56.409
all those powers to block, prohibit, and seize,

01:10:56.430 --> 01:10:58.090
and so forth. They're saying this is so broad

01:10:58.090 --> 01:11:00.279
because the emergency is so broad. But of course,

01:11:00.420 --> 01:11:02.960
that's a presidential determination, and there's

01:11:02.960 --> 01:11:05.140
all kinds of basis for it. And also, keep in

01:11:05.140 --> 01:11:07.199
mind that the emergency is not just the asymmetric

01:11:07.199 --> 01:11:09.319
treatment. It's the impact of the asymmetry,

01:11:09.319 --> 01:11:11.220
the underlying conditions, the hollowing out

01:11:11.220 --> 01:11:15.539
of our manufacturing base, the vulnerability

01:11:15.539 --> 01:11:18.800
of our supply chains, and of course, our defense

01:11:18.800 --> 01:11:20.739
industrial base's vulnerability of key inputs.

01:11:21.340 --> 01:11:23.920
Justice Jackson? So as I understand your response

01:11:23.920 --> 01:11:26.319
to Justice Barrett in that last question, you're

01:11:26.319 --> 01:11:29.520
saying that the Power to tariff fits naturally

01:11:29.520 --> 01:11:31.720
with the power to block and seize. That was your

01:11:31.720 --> 01:11:34.380
example. But I guess I'm trying to understand

01:11:34.380 --> 01:11:37.399
then your argument from the text of the actual

01:11:37.399 --> 01:11:41.800
statute. Because the statute, unlike what you

01:11:41.800 --> 01:11:45.720
suggested to Justice Kagan, is focused on the

01:11:45.720 --> 01:11:48.600
actual actions that the president can take. In

01:11:48.600 --> 01:11:50.560
response to Justice Kagan, I understood you to

01:11:50.560 --> 01:11:53.800
say that Congress was giving the president brought

01:11:53.800 --> 01:11:57.060
authority to act, and it was within a particular

01:11:57.060 --> 01:12:00.239
domain, which is the domain of emergencies with

01:12:00.239 --> 01:12:02.060
respect to foreign power, but the president could

01:12:02.060 --> 01:12:04.920
basically do a lot of things. But when I read

01:12:04.920 --> 01:12:08.000
the statute, it is telling the president exactly

01:12:08.000 --> 01:12:11.619
what he can do. Investigate, block during the

01:12:11.619 --> 01:12:14.460
pendency of an investigation, regulate, direct,

01:12:14.640 --> 01:12:17.659
and compel, nullify, void, prevent, or prohibit.

01:12:18.199 --> 01:12:20.500
And I guess what is a little concerning to me

01:12:20.500 --> 01:12:23.100
is that your argument suggest that we should

01:12:23.100 --> 01:12:26.640
see the word imposed, the phrase imposed tariffs

01:12:26.640 --> 01:12:29.479
in that same series of things that the president

01:12:29.479 --> 01:12:32.340
could do. We don't see that word and instead

01:12:32.340 --> 01:12:35.819
you take regulate and say that must mean that.

01:12:36.159 --> 01:12:38.600
So I guess I'm getting back to Justice Barrett's

01:12:38.600 --> 01:12:41.619
maybe original question which was where else

01:12:41.619 --> 01:12:46.220
in the code has Congress used the word regulate

01:12:46.220 --> 01:12:51.739
to sub in for imposed tariffs? And then this

01:12:51.739 --> 01:12:54.060
court's opinions, of course, have used regulate

01:12:54.060 --> 01:12:56.619
and import or have pointed out that duties are

01:12:56.619 --> 01:12:58.840
the natural way to regulate foreign commerce.

01:12:58.840 --> 01:13:00.560
But you're saying we should not have expected

01:13:00.560 --> 01:13:03.399
to see the same level of granularity with respect

01:13:03.399 --> 01:13:06.739
to the president's authority to impose tariffs

01:13:06.739 --> 01:13:11.630
as we see here investigate, block. direct and

01:13:11.630 --> 01:13:13.529
compel, nullify, et cetera. I think it would

01:13:13.529 --> 01:13:15.689
be very unusual for Congress to spell out all

01:13:15.689 --> 01:13:17.750
the ways that you can regulate in that sense.

01:13:17.810 --> 01:13:19.850
So regulate becomes a big catch -all. The rest

01:13:19.850 --> 01:13:21.569
of the other things. Well, I mean, we have a

01:13:21.569 --> 01:13:22.970
concession of that from the other side, that

01:13:22.970 --> 01:13:24.689
regulated lease includes qualitative methods,

01:13:24.890 --> 01:13:28.829
quantitative methods, quotas, licenses. They

01:13:28.829 --> 01:13:30.909
can see that there's a lot in regulate that's

01:13:30.909 --> 01:13:33.029
not spelled out there. And our point is you don't

01:13:33.029 --> 01:13:34.489
need to spell out tariffs, because that's, like,

01:13:34.489 --> 01:13:36.409
of all of them, the most natural, the most quintessential

01:13:36.409 --> 01:13:39.550
method of regulating imports. And yet many, many

01:13:39.550 --> 01:13:42.789
presidents have not used regulate in this way

01:13:42.789 --> 01:13:44.789
to impose tariffs. I understand you point to

01:13:44.789 --> 01:13:47.250
President Nixon. We have licenses from Lincoln,

01:13:48.090 --> 01:13:51.270
but no one else. As is Justice Kavanaugh, presidents

01:13:51.270 --> 01:13:54.350
who are faced with international crises to which

01:13:54.350 --> 01:13:57.170
tariffing is the natural response, that's President

01:13:57.170 --> 01:13:59.069
Nixon and President Trump, have invoked this

01:13:59.069 --> 01:14:00.930
authority. And also, frankly, President Trump

01:14:00.930 --> 01:14:03.310
invoked this authority in May of 2019 as well.

01:14:03.390 --> 01:14:04.630
Can I ask you one question? So it's more historically

01:14:04.630 --> 01:14:06.989
attested than they can see. Let me just ask one

01:14:06.989 --> 01:14:12.949
more question about the unusual threat. So in

01:14:12.949 --> 01:14:15.310
your conversation with Justice Gorsuch, that

01:14:15.310 --> 01:14:18.390
we had the climate change tariff hypo, and you

01:14:18.390 --> 01:14:22.229
indicated that there would be challengers to

01:14:22.229 --> 01:14:25.829
the notion that that was an unusual and extraordinary

01:14:25.829 --> 01:14:28.090
threat. And I'm just wondering, under your position,

01:14:28.250 --> 01:14:29.989
would they be able to make a legal challenge?

01:14:30.069 --> 01:14:32.890
Are you saying the court would not be able to

01:14:32.890 --> 01:14:35.010
review that term? On that particular hypothetical,

01:14:35.130 --> 01:14:36.770
I think I said that'd be a question for Congress.

01:14:37.000 --> 01:14:39.279
So not a court? In other words, that wouldn't

01:14:39.279 --> 01:14:40.520
be the sort of thing that courts would want to

01:14:40.520 --> 01:14:43.720
wait into. Is this really an emergency? That

01:14:43.720 --> 01:14:46.140
would not be probably very unlikely. That'd be

01:14:46.140 --> 01:14:48.300
a situation where at least there'd be very, very,

01:14:48.300 --> 01:14:50.300
very deferential judicial review of that kind

01:14:50.300 --> 01:14:52.539
of determination. No, I'm asking about those

01:14:52.539 --> 01:14:54.880
are two different things. Is there no judicial

01:14:54.880 --> 01:14:57.739
review, or is there deferential? I mean, Trump

01:14:57.739 --> 01:14:59.460
against Hawaii. Our front line position is that

01:14:59.460 --> 01:15:01.020
it falls within Dalton against Specter. It's

01:15:01.020 --> 01:15:02.539
committed to the president's discretion when

01:15:02.539 --> 01:15:04.300
he makes his termination of a national emergency.

01:15:04.560 --> 01:15:07.279
But the court doesn't have to decide that. because

01:15:07.279 --> 01:15:09.319
whatever review is very, very deferential, it's

01:15:09.319 --> 01:15:12.479
easily satisfied here. Thank you. Thank you,

01:15:12.579 --> 01:15:22.279
counsel. Mr. Katyal? Thank you, Mr. Chief Justice,

01:15:22.340 --> 01:15:24.920
and may it please the Court. Tariffs are taxes.

01:15:25.100 --> 01:15:27.579
They take dollars from Americans' pockets and

01:15:27.579 --> 01:15:30.380
deposit them in the U .S. Treasury. Our founders

01:15:30.380 --> 01:15:34.140
gave that taxing power to Congress alone. Yet

01:15:34.140 --> 01:15:36.520
here, the President bypassed Congress and imposed

01:15:36.520 --> 01:15:39.720
one of the largest tax increases in our lifetimes.

01:15:40.079 --> 01:15:42.880
Many doctrines explain why this is illegal, like

01:15:42.880 --> 01:15:45.039
the presumption that Congress speaks clearly

01:15:45.039 --> 01:15:48.000
when it imposes taxes and duties, and the major

01:15:48.000 --> 01:15:50.859
questions doctrine. But it comes down to common

01:15:50.859 --> 01:15:54.109
sense. It's simply implausible that in enacting

01:15:54.109 --> 01:15:56.729
AIIPA, Congress handed the president the power

01:15:56.729 --> 01:15:59.590
to overhaul the entire tariff system and the

01:15:59.590 --> 01:16:02.109
American economy in the process, allowing him

01:16:02.109 --> 01:16:05.270
to set and reset tariffs on any and every product

01:16:05.270 --> 01:16:08.109
from any and every country at any and all times.

01:16:08.350 --> 01:16:10.630
And as Justices Gorsuch and Barrett just said,

01:16:10.850 --> 01:16:13.550
this is a one -way ratchet. We will never get

01:16:13.550 --> 01:16:16.130
this power back if the government wins this case.

01:16:16.470 --> 01:16:19.850
What president wouldn't veto legislation to rein

01:16:19.850 --> 01:16:22.510
this power in? and pull out the tariff power.

01:16:22.989 --> 01:16:26.010
AIIPA is a sanctioned statute. It's not a tax

01:16:26.010 --> 01:16:29.029
statute where Congress gave away the store. Congress

01:16:29.029 --> 01:16:31.470
knows exactly how to delegate its tariff powers

01:16:31.470 --> 01:16:35.529
every time for 238 years. It's done so explicitly,

01:16:35.970 --> 01:16:38.930
always with real limits. AIIPA looks nothing

01:16:38.930 --> 01:16:42.010
like those laws. It uses Regulate, which Congress

01:16:42.010 --> 01:16:45.109
has used hundreds of times, never once to include

01:16:45.109 --> 01:16:47.970
tariffs, and it lacks the limits of every other

01:16:47.970 --> 01:16:50.270
tariff statute. And that is why, even though

01:16:50.279 --> 01:16:53.319
presidents have used AIIPA to impose economic

01:16:53.319 --> 01:16:56.539
sanctions thousands of times, no president in

01:16:56.539 --> 01:16:59.600
AIIPA's 50 -year lifetime has ever tried to impose

01:16:59.600 --> 01:17:02.460
tariffs. And the president bypassed statutes

01:17:02.460 --> 01:17:05.859
that do address tariffs, like Section 122 for

01:17:05.859 --> 01:17:08.640
large and serious trade deficits, but that imposes

01:17:08.640 --> 01:17:12.720
a clear guardrail. 15 % cap, 150 -day limit.

01:17:12.970 --> 01:17:16.449
This is Youngstown at its lowest level. If the

01:17:16.449 --> 01:17:18.970
government wins, another president could declare

01:17:18.970 --> 01:17:22.630
a climate emergency and impose huge tariffs without

01:17:22.630 --> 01:17:24.949
fines or without floors or ceilings, as Justice

01:17:24.949 --> 01:17:28.329
Gorsuch said. My friend's answer, this administration

01:17:28.329 --> 01:17:31.390
would declare it a hoax. The next president may

01:17:31.390 --> 01:17:34.529
not quite say that. This is an open -ended power

01:17:34.529 --> 01:17:37.430
to junk the tariff laws and is certainly not

01:17:37.430 --> 01:17:40.670
conveyed by the word regulate. I welcome the

01:17:40.670 --> 01:17:44.560
court's questions. Wouldn't your argument also

01:17:44.560 --> 01:17:48.460
apply to embargoes? So, and this is the argument

01:17:48.460 --> 01:17:51.180
in the fine descent below, and I think there

01:17:51.180 --> 01:17:54.060
are three answers to that, Justice Thomas. The

01:17:54.060 --> 01:17:57.520
first is revenue raising. Embargoes stop the

01:17:57.520 --> 01:18:00.619
shipment. Tariffs start the tax bill. They are

01:18:00.619 --> 01:18:03.079
first and foremost ways of regulating revenue,

01:18:03.199 --> 01:18:05.399
as some of your own opinions said. This is the

01:18:05.399 --> 01:18:07.840
way we actually chiefly got revenue for the first

01:18:07.840 --> 01:18:12.479
hundred years of our republic. Tariffs are constitutionally

01:18:12.479 --> 01:18:15.579
special because our founders feared revenue raising

01:18:15.579 --> 01:18:19.500
unlike embargoes. There was no Boston Embargo

01:18:19.500 --> 01:18:22.119
Party, but there was certainly a Boston Tea Party.

01:18:22.699 --> 01:18:25.579
The second thing, textually, in the statute.

01:18:25.869 --> 01:18:28.329
It's different. Regulate appears in a cluster

01:18:28.329 --> 01:18:30.789
of verbs, as was said before, investigate, block,

01:18:30.970 --> 01:18:33.390
nullify, and the like. They describe embargo

01:18:33.390 --> 01:18:35.949
-like controls, prevent and prohibit, for example.

01:18:36.470 --> 01:18:39.310
But they don't describe revenue exactions. That's

01:18:39.310 --> 01:18:41.949
Justice Kagan's point. The one verb that's missing

01:18:41.949 --> 01:18:46.050
here is anything about raising revenue whatsoever.

01:18:46.359 --> 01:18:49.479
Another point, congressional displacement. Today

01:18:49.479 --> 01:18:52.560
there is a whole host of statutes in the tariff

01:18:52.560 --> 01:18:56.239
architecture of Title 19, which both expressly

01:18:56.239 --> 01:18:59.579
confer the power to tariff and always impose

01:18:59.579 --> 01:19:02.739
clear limits. Embargos by the president, embargoes

01:19:02.739 --> 01:19:05.060
don't have any of that. They don't set aside

01:19:05.060 --> 01:19:06.899
that whole thing. If you look at the learning

01:19:06.899 --> 01:19:09.659
resources brief at page five, it goes through

01:19:09.659 --> 01:19:13.319
these statutes in detail. Section 122 expressly

01:19:13.319 --> 01:19:40.300
says duties and then limits it 15%. Let's go

01:19:40.300 --> 01:19:44.479
back to your non -delegation point. It would

01:19:44.479 --> 01:19:51.359
seem that if the tariff power cannot be delegated,

01:19:51.500 --> 01:19:54.319
your argument on non -delegation would also have

01:19:54.319 --> 01:19:58.189
to apply. to embargoes and to quotas? No, Your

01:19:58.189 --> 01:20:00.649
Honor, because I think tariffs, because they're

01:20:00.649 --> 01:20:03.810
uniquely revenue raising, impose special, unique

01:20:03.810 --> 01:20:07.350
concerns that go back to our founding. And so

01:20:07.350 --> 01:20:09.369
I don't think that they apply to embargoes. And

01:20:09.369 --> 01:20:12.710
indeed, the history of this is very clear. As

01:20:12.710 --> 01:20:15.689
you just heard my friend say, in 1790, George

01:20:15.689 --> 01:20:18.569
Washington was delegated massive embargo power

01:20:18.569 --> 01:20:20.890
from the Congress. But what did Congress not

01:20:20.890 --> 01:20:22.729
do? And this is why the example cuts the other

01:20:22.729 --> 01:20:25.350
way. They never gave the president any sort of

01:20:25.350 --> 01:20:28.229
delegation of tariff authority at the time. Our

01:20:28.229 --> 01:20:30.550
point is not you can't delegate tariff authority.

01:20:30.590 --> 01:20:33.310
It's simply that you've got to do so with intelligible

01:20:33.310 --> 01:20:35.510
principles. And what you just heard my friend

01:20:35.510 --> 01:20:39.550
say is every single limit in AIIPA is one that

01:20:39.550 --> 01:20:42.390
is not judicially enforceable. There's no limit

01:20:42.390 --> 01:20:44.869
whatsoever. And indeed the main limit that was

01:20:44.869 --> 01:20:47.090
in there, he calls this some compromise position.

01:20:47.390 --> 01:20:50.409
The only compromise in 1977 was the legislative

01:20:50.409 --> 01:20:53.470
veto. And as this case comes to the court, that's

01:20:53.470 --> 01:20:58.500
no longer in the statute at all. Yes, sure. The

01:20:58.500 --> 01:21:01.460
tariffs are a tax, and that's a core power of

01:21:01.460 --> 01:21:04.180
Congress. But they're a foreign -facing tax,

01:21:04.260 --> 01:21:06.859
right? And that foreign affair is a core power

01:21:06.859 --> 01:21:10.920
of the executive. And I don't think you can dismiss

01:21:10.920 --> 01:21:14.140
the consequences. I mean, we didn't stay in this

01:21:14.140 --> 01:21:17.779
case. And one thing is quite clear, is that the

01:21:17.779 --> 01:21:20.640
foreign -facing tariffs have in several situations

01:21:20.640 --> 01:21:24.579
been quite - I'm sorry. were quite effective

01:21:24.579 --> 01:21:29.159
in achieving a particular objective. So I don't

01:21:29.159 --> 01:21:30.899
think you can just separate it when you say,

01:21:30.899 --> 01:21:34.710
well, this is a tax. Congress's power, it implicates

01:21:34.710 --> 01:21:36.649
very directly the President's foreign affairs

01:21:36.649 --> 01:21:39.529
power. Mr. Chief Justice, we don't disagree with

01:21:39.529 --> 01:21:41.569
a large part of that. We think instead of thinking

01:21:41.569 --> 01:21:43.850
about foreign versus domestic, the better way

01:21:43.850 --> 01:21:46.569
of thinking about it is Article 1 versus Article

01:21:46.569 --> 01:21:50.010
2. And as my friend finally conceded to Justice

01:21:50.010 --> 01:21:53.630
Gorsuch, there is no Article 2 power here, at

01:21:53.630 --> 01:21:55.489
least when we're talking about peacetime. Well,

01:21:55.489 --> 01:21:57.609
you don't agree with a large part. What's the

01:21:57.609 --> 01:21:59.729
little part that you do disagree with? So we

01:21:59.729 --> 01:22:02.310
agree with the idea that terror have foreign

01:22:02.310 --> 01:22:04.909
policy implications. Absolutely. Our founders

01:22:04.909 --> 01:22:07.050
recognize that. That's in the Federalist Papers.

01:22:07.409 --> 01:22:10.810
But nonetheless, they exclusively committed that

01:22:10.810 --> 01:22:14.130
power to the Congress in Article 1, Section 8,

01:22:14.130 --> 01:22:16.569
and gave it as its first power. So when you hear

01:22:16.569 --> 01:22:19.170
my friends cite cases like Egan and Garamundi,

01:22:19.250 --> 01:22:21.890
they just don't apply to this specific unique

01:22:21.890 --> 01:22:24.829
situation in which Congress has given that power.

01:22:25.050 --> 01:22:27.550
And if you were tempted by this, I think the

01:22:27.550 --> 01:22:30.050
best place to look is Youngstown, because what

01:22:30.050 --> 01:22:32.409
Justice Jackson said and I was surprised that

01:22:32.409 --> 01:22:34.989
he quoted page 652 because what Justice Jackson

01:22:34.989 --> 01:22:37.850
said is quote, emergency powers tend to kindle

01:22:37.850 --> 01:22:40.449
emergencies so it's essential the public may

01:22:40.449 --> 01:22:43.210
know the extent and limitations of the powers

01:22:43.210 --> 01:22:46.029
that can be asserted and persons affected may

01:22:46.029 --> 01:22:49.090
be informed from the statute of its rights and

01:22:49.090 --> 01:22:51.630
duties. And Justice Jackson went on to say there

01:22:51.630 --> 01:22:55.250
that it's notable our founders didn't give the

01:22:55.250 --> 01:22:58.909
president revenue -raising power even in a time

01:22:58.909 --> 01:23:02.939
of war. clarification of your answer, which is

01:23:02.939 --> 01:23:06.340
you agree if the word tariff were in the statute,

01:23:06.460 --> 01:23:09.140
that would be acceptable and constitutionally

01:23:09.140 --> 01:23:13.880
permissible, correct? No. Well, it would be constitutionally

01:23:13.880 --> 01:23:17.220
permissible. The question would then be, is the

01:23:17.220 --> 01:23:20.039
open -ended assertion of power here? Because

01:23:20.039 --> 01:23:20.939
every other tariff statute has limitations. Oh,

01:23:20.939 --> 01:23:23.340
I get as applied to this case. But the general

01:23:23.340 --> 01:23:26.199
point is, yes, Congress, you said it's assigned

01:23:26.199 --> 01:23:29.880
to Congress. But Congress can... grant authority

01:23:29.880 --> 01:23:33.539
to presidents to impose tariffs as a general

01:23:33.539 --> 01:23:36.340
proposition. Okay, so we have to figure out then

01:23:36.340 --> 01:23:39.939
what regulate importation means. And you've heard

01:23:39.939 --> 01:23:42.500
my questions. If this statute came out of nowhere

01:23:42.500 --> 01:23:47.520
in 1977, I think your case would be, you know,

01:23:48.399 --> 01:23:50.319
obviously stronger. We have to figure out, at

01:23:50.319 --> 01:23:52.529
least I... want to figure out what the Nixon

01:23:52.529 --> 01:23:55.649
precedent stands for and what Algonquin stands

01:23:55.649 --> 01:23:58.170
for. On the Nixon precedent, the question is,

01:23:58.250 --> 01:24:00.869
I think, was Congress aware of that, meaning

01:24:00.869 --> 01:24:03.430
that when they used regulated importation and

01:24:03.430 --> 01:24:06.130
it's now being used to encompass tariffs, that's

01:24:06.130 --> 01:24:09.310
not unheralded because Congress was well aware.

01:24:09.909 --> 01:24:12.029
You know, President Nixon announced those tariffs

01:24:12.029 --> 01:24:16.930
in a nationwide primetime speech, 10 percent,

01:24:17.130 --> 01:24:20.329
across the board in August 1971. It was not some

01:24:20.350 --> 01:24:23.489
kind of little piece of paper. So it was well

01:24:23.489 --> 01:24:25.850
known. The question then is, was Congress, why

01:24:25.850 --> 01:24:27.550
didn't they change the language? Why didn't they

01:24:27.550 --> 01:24:30.409
say regulate but not tariffs? That's kind of

01:24:30.409 --> 01:24:32.770
the difficult question from the Nixon precedent

01:24:32.770 --> 01:24:35.409
that I'll give you an opportunity. Thank you,

01:24:35.470 --> 01:24:37.609
Justice Kavanaugh. So five answers on the Nixon

01:24:37.609 --> 01:24:41.550
precedent. First, there is no evidence that Congress

01:24:41.550 --> 01:24:43.949
thought it was ratifying Yoshida. It was a single

01:24:43.949 --> 01:24:46.810
court of appeals case. It's not some of my question.

01:24:46.970 --> 01:24:50.319
I never mentioned Yoshida. It's the Use by the

01:24:50.319 --> 01:24:52.979
president of that power under regulated import

01:24:52.979 --> 01:24:55.279
importation if we're just talking about that

01:24:55.279 --> 01:24:58.680
President Nixon did not rely on the statute whatsoever

01:24:58.680 --> 01:25:00.979
I mean, that's very clear In fact, we have a

01:25:00.979 --> 01:25:03.279
Marshall McLuhan moment here because you have

01:25:03.279 --> 01:25:05.979
before you Alan Wolf The person who was there

01:25:05.979 --> 01:25:09.720
in the room with Nixon saying Nixon totally disagreed

01:25:09.720 --> 01:25:11.840
that this statute applied So if we're just talking

01:25:11.840 --> 01:25:14.220
about Nixon, I don't think it can get the government

01:25:14.220 --> 01:25:16.439
where go to your other four Yeah, so I think

01:25:16.439 --> 01:25:19.819
the only way it does any work is if the president

01:25:19.819 --> 01:25:23.100
is through the. the vehicle of Yoshida. And that's

01:25:23.100 --> 01:25:25.859
what I take it. The government is arguing. And

01:25:25.859 --> 01:25:29.199
with respect to that, this cert denied intermediate

01:25:29.199 --> 01:25:31.000
court appeals decision, I don't think it can

01:25:31.000 --> 01:25:34.500
come close to overcoming the clear plain text.

01:25:34.939 --> 01:25:37.760
The word regulate is words regulate importation.

01:25:37.779 --> 01:25:40.319
The word regulate has never been used. It's been

01:25:40.319 --> 01:25:43.300
it's the Congress uses the term 1 ,499 times.

01:25:43.300 --> 01:25:44.979
We've got about that number of hits when we looked

01:25:44.979 --> 01:25:47.159
at it. And maybe there's some double counting,

01:25:47.439 --> 01:25:52.239
but it is never used even once. to impose taxes

01:25:52.239 --> 01:25:54.220
or revenue raising. And that was the question

01:25:54.220 --> 01:25:56.800
that Justice Barrett was asking. And so I don't

01:25:56.800 --> 01:25:58.720
think that this intermediate court of appeals

01:25:58.720 --> 01:26:01.539
decision will get you there. And then even if

01:26:01.539 --> 01:26:04.789
you thought that Congress knew about Yoshida.

01:26:05.829 --> 01:26:07.529
Even if you thought they liked it, which there's

01:26:07.529 --> 01:26:10.090
absolutely zero evidence of, I don't think that

01:26:10.090 --> 01:26:11.850
helps the government for reasons that Justice

01:26:11.850 --> 01:26:14.890
Alito was pointing to, because Yoshida said three

01:26:14.890 --> 01:26:18.409
things. A, TWA doesn't give the unlimited authority

01:26:18.409 --> 01:26:20.989
that the government is seeking here. B, they

01:26:20.989 --> 01:26:24.270
were only upholding the limited specific assertion

01:26:24.270 --> 01:26:26.789
of authority that President Nixon sought there.

01:26:27.090 --> 01:26:30.130
And third, going forward, the solution, they

01:26:30.130 --> 01:26:34.130
said in footnote 33, was to use Section 122 of

01:26:34.130 --> 01:26:38.609
the 1974 Trade Act, 15%, 150 days. We have no

01:26:38.609 --> 01:26:41.010
problem with the president doing that. It's just

01:26:41.010 --> 01:26:43.909
that this president has torn up the entire tariff

01:26:43.909 --> 01:26:47.409
architecture. For example, he's tariffing Switzerland,

01:26:47.630 --> 01:26:50.250
one of our allies, which we have a trade surplus.

01:26:50.569 --> 01:26:54.510
39 percent. That is just not something that any

01:26:54.510 --> 01:26:57.350
president has ever had the power to do in our

01:26:57.350 --> 01:27:00.890
history. And the idea that Congress, by implication,

01:27:01.069 --> 01:27:04.729
did this in 1977 and handed him all this power,

01:27:04.949 --> 01:27:12.199
I think is really difficult. Let's start with

01:27:12.199 --> 01:27:15.880
just the bare statutory language. You have arguments

01:27:15.880 --> 01:27:18.920
about structure. You have arguments about history.

01:27:20.920 --> 01:27:24.079
They're strong arguments, but let's just start

01:27:24.079 --> 01:27:28.739
with the bare statutory language, regulate importation.

01:27:29.479 --> 01:27:32.680
If we disregard all of the rest, would you dispute

01:27:32.680 --> 01:27:35.659
that that would include the imposition of a fee?

01:27:36.219 --> 01:27:39.800
So if it's revenue yeah, we do dispute that absolutely

01:27:39.800 --> 01:27:42.300
What if there were a statute that said I mean

01:27:42.300 --> 01:27:44.380
suppose that there's a particular national park

01:27:44.380 --> 01:27:46.560
that's very crowded and then Congress passes

01:27:46.560 --> 01:27:48.979
a statute that says the National Park Service

01:27:48.979 --> 01:27:51.800
May regulate admission to the park would you

01:27:51.800 --> 01:27:54.560
say well that does not allow them to impose a

01:27:54.560 --> 01:27:57.220
fee? So, you know, Your Honor, sometimes we think

01:27:57.220 --> 01:28:00.119
of fees as not revenue raising, but rather capturing

01:28:00.119 --> 01:28:02.659
the cost of government services, in your example,

01:28:03.060 --> 01:28:06.300
the going to the park. That may, you know, those

01:28:06.300 --> 01:28:08.079
kinds of cases which you think... Suppose it

01:28:08.079 --> 01:28:14.079
goes beyond the cost of running the park. Congress

01:28:14.079 --> 01:28:16.279
just wants to control admission to the park,

01:28:16.640 --> 01:28:18.960
regulate admission. Wouldn't that include the

01:28:18.960 --> 01:28:22.550
imposition of the fee? So, if it doesn't raise

01:28:22.550 --> 01:28:25.569
revenue and it's not about that, then I think

01:28:25.569 --> 01:28:28.289
that's fine. If it does... It raises revenue.

01:28:28.609 --> 01:28:31.770
That's the hypothetical. That wouldn't apply?

01:28:31.869 --> 01:28:34.810
So, I think in that circumstance that it wouldn't

01:28:34.810 --> 01:28:38.369
be a regulation in context and wouldn't be permitted.

01:28:38.630 --> 01:28:40.970
That is, at least in the context of tariffs and

01:28:40.970 --> 01:28:43.750
trade, we know, Justice Alito... Well, that gets

01:28:43.750 --> 01:28:46.770
into your other arguments. We start out... with

01:28:46.770 --> 01:28:51.710
the bare statutory language. And that was what

01:28:51.710 --> 01:28:54.029
my question was about. Do you think all tariffs

01:28:54.029 --> 01:28:58.449
are revenue raising? Suppose that instead of

01:28:58.449 --> 01:29:05.109
imposing these across the board tariffs, suppose

01:29:05.109 --> 01:29:10.689
that an executive order imposed a tariff on one

01:29:10.689 --> 01:29:16.010
particular country. provided that this would

01:29:16.010 --> 01:29:20.989
take effect in 90 days and suppose that within

01:29:20.989 --> 01:29:24.569
those 90 days an agreement is reached with that

01:29:24.569 --> 01:29:28.369
country so that no tariff is ever collected.

01:29:28.770 --> 01:29:31.310
Would that be a revenue raising tariff? I take

01:29:31.310 --> 01:29:34.550
it the initial point, and on its face, it is

01:29:34.550 --> 01:29:36.970
revenue raising, that that's what it's for, and

01:29:36.970 --> 01:29:39.470
so I think that would. And look, I don't doubt

01:29:39.470 --> 01:29:41.329
that there are edge cases. That is what this

01:29:41.329 --> 01:29:43.930
court's confronted just recently in FCC versus

01:29:43.930 --> 01:29:46.329
Consumer Research, and you said, look, what is

01:29:46.329 --> 01:29:48.470
a tax? It's sometimes very hard. What is revenue

01:29:48.470 --> 01:29:51.310
raising? This is obviously revenue raising. Their

01:29:51.310 --> 01:29:53.729
own brief to the court says it's going to raise

01:29:53.729 --> 01:29:56.829
four trillion dollars. And Justice Alito, you

01:29:56.829 --> 01:29:59.869
and your consumers research dissent, or Justice

01:29:59.869 --> 01:30:02.670
Gorsuch's dissent that you joined, said taxation

01:30:02.670 --> 01:30:06.109
is special and different, and it is the most

01:30:06.109 --> 01:30:08.949
powerful thing the government does. And the idea

01:30:08.949 --> 01:30:11.970
that Congress, when they know exactly how to

01:30:11.970 --> 01:30:14.909
write tariff and tax statutes, gave this power

01:30:14.909 --> 01:30:17.729
by implication through the word regulate, I think

01:30:17.729 --> 01:30:21.489
is very, very hard to... You cite many different...

01:30:21.710 --> 01:30:26.329
statutory provisions that impose tariffs. And

01:30:26.329 --> 01:30:28.470
you have a point if that's the relevant universe.

01:30:28.590 --> 01:30:32.569
What if the relevant universe is tariffs that

01:30:32.569 --> 01:30:37.359
are imposed in emergency situations? Yes, so

01:30:37.359 --> 01:30:39.539
I think it cuts the other way so you know as

01:30:39.539 --> 01:30:42.239
Justice Jackson said it's when you're in an emergency

01:30:42.239 --> 01:30:44.920
situation the statutes actually have to speak

01:30:44.920 --> 01:30:47.460
with more precision the public needs to know

01:30:47.460 --> 01:30:51.500
because emergencies beget emergencies and I would

01:30:51.500 --> 01:30:54.020
say the best way of understanding what Congress

01:30:54.020 --> 01:30:56.579
does in emergencies is to look at their emergency

01:30:56.579 --> 01:31:00.260
statutes not one has ever given the president

01:31:00.260 --> 01:31:03.319
a taxation power or a tariff power. We've had

01:31:03.319 --> 01:31:07.239
all sorts of emergencies for 238 years. No president

01:31:07.239 --> 01:31:09.539
has ever said, oh, the way to deal with that

01:31:09.539 --> 01:31:11.960
is I need to have a tariff authority. And as

01:31:11.960 --> 01:31:15.100
Justice Sotomayor said, AIPA gives already a

01:31:15.100 --> 01:31:18.279
quota power so you can get what the foreign policy

01:31:18.279 --> 01:31:20.939
piece of it is through that. I'd also say, Justice

01:31:20.939 --> 01:31:23.680
Alito, Dames and Moore, which the Chief Justice

01:31:23.680 --> 01:31:26.560
referred to earlier, I think is really important

01:31:26.560 --> 01:31:29.300
here because the solicitor general in that case

01:31:29.300 --> 01:31:31.840
made a similar argument to what you just heard

01:31:31.840 --> 01:31:35.840
on the claims provisions. He said it falls within

01:31:35.840 --> 01:31:38.579
regulate. Regulate is a capacious term. He said,

01:31:38.699 --> 01:31:40.979
Justice Alito, what you said, this is an emergency

01:31:40.979 --> 01:31:43.800
situation. And he said you've got to defer to

01:31:43.800 --> 01:31:46.460
the president on a major issue of national security

01:31:46.460 --> 01:31:49.380
about this very statute. And what did the court

01:31:49.380 --> 01:31:52.539
do? It rejected those arguments and said IEPA

01:31:52.539 --> 01:31:54.560
doesn't cover the argument. You say that this

01:31:54.560 --> 01:31:58.250
is not, this case does not. that these executive

01:31:58.250 --> 01:32:02.010
orders do not address an unusual and extraordinary

01:32:02.010 --> 01:32:10.770
threat. I understand that argument. Suppose that

01:32:10.770 --> 01:32:15.470
there was an imminent threat of war, not a declared

01:32:15.470 --> 01:32:18.729
war, but an imminent threat of war with a very

01:32:18.729 --> 01:32:22.529
powerful enemy whose economy was heavily dependent

01:32:22.529 --> 01:32:26.609
on US trade. Could a president under this provision

01:32:26.829 --> 01:32:31.329
impose a tariff as a way of trying to stave off

01:32:31.329 --> 01:32:33.920
that war? Or would you say no? the president

01:32:33.920 --> 01:32:36.159
lacks that power. Couldn't do tariff, but could

01:32:36.159 --> 01:32:38.939
do quota, embargo, all of those things. Could

01:32:38.939 --> 01:32:41.260
do all those things, but the president could

01:32:41.260 --> 01:32:43.439
not impose the power. There's one thing he couldn't

01:32:43.439 --> 01:32:46.300
do. There's a category shift between a tariff

01:32:46.300 --> 01:32:49.159
and the other eight powers in IEPA because it

01:32:49.159 --> 01:32:51.100
is revenue raising. So it's not a difference

01:32:51.100 --> 01:32:53.640
in degree or something like that. That's why,

01:32:53.800 --> 01:32:55.600
you know, I don't doubt tomorrow. Even if the

01:32:55.600 --> 01:32:58.140
purpose of this had nothing whatsoever to do

01:32:58.140 --> 01:33:00.319
with raising one penny, the president didn't

01:33:00.319 --> 01:33:02.180
want to raise one penny, the president wanted

01:33:02.180 --> 01:33:04.779
to deter aggression that would bring the United

01:33:04.779 --> 01:33:07.119
States into a war. You would say, no, can't do

01:33:07.119 --> 01:33:09.119
that. Just Alito, I think you've said many times

01:33:09.119 --> 01:33:11.159
the purpose isn't what you look at. You look

01:33:11.159 --> 01:33:13.340
to actually what the government is doing. And

01:33:13.340 --> 01:33:19.560
if you disagree, if you ruled for us and the

01:33:19.560 --> 01:33:22.199
president says, I need this power, he can go

01:33:22.199 --> 01:33:24.460
across the street to Congress tomorrow and get

01:33:24.460 --> 01:33:26.840
it by a simple majority through reconciliation.

01:33:27.260 --> 01:33:31.430
But if you vote for them, This power, as Justice

01:33:31.430 --> 01:33:34.010
Gorsuch said, as Justice Barrett said, is going

01:33:34.010 --> 01:33:37.109
to be stuck with us forever. The power to generalize.

01:33:39.430 --> 01:33:41.970
I just wanted to give you a chance to address

01:33:41.970 --> 01:33:44.989
kind of the other argument that's been submerged

01:33:44.989 --> 01:33:47.689
here textually. Again, just bare text for a moment,

01:33:47.789 --> 01:33:52.210
okay? We've been focused on regulate importation,

01:33:52.289 --> 01:33:54.909
but actually the statute says the president may,

01:33:55.369 --> 01:34:01.090
by means of licenses or otherwise, regulate importation.

01:34:01.470 --> 01:34:04.289
And we've had some discussion today about the

01:34:04.289 --> 01:34:07.869
fact that maybe the President could simply re

01:34:07.869 --> 01:34:11.970
-characterize these tariffs as licenses or rejigger

01:34:11.970 --> 01:34:17.210
the scheme so that they are licenses. We've also

01:34:17.210 --> 01:34:20.569
heard the suggestion that otherwise, you know,

01:34:20.729 --> 01:34:24.050
licenses and tariffs are very similar, so otherwise

01:34:24.050 --> 01:34:26.859
might encompass tariffs there. Thoughts? Yeah,

01:34:26.960 --> 01:34:29.979
a few thoughts, Justice Gorsuch. First is the

01:34:29.979 --> 01:34:32.300
SG is not even making that argument, and I think

01:34:32.300 --> 01:34:34.260
they're not making it for a number of reasons.

01:34:34.640 --> 01:34:37.359
One is that there's a strong presumption against

01:34:37.359 --> 01:34:40.199
reading statutes this way in the unique tax and

01:34:40.199 --> 01:34:43.659
duties context. Hartramp is one of those cases

01:34:43.659 --> 01:34:46.380
which says if there's doubt, you don't read the

01:34:46.380 --> 01:34:49.579
statute to confer such powers. Second, if you

01:34:49.579 --> 01:34:51.779
were to do that, it's open -ended. It allows,

01:34:51.819 --> 01:34:53.939
and this was your hypothetical, it allows under

01:34:53.939 --> 01:34:59.130
the word license. them to tariff the world. Seems

01:34:59.130 --> 01:35:01.289
like you're putting a major questions thumb.

01:35:01.560 --> 01:35:04.819
or an interpretive lens thumb on the plain text

01:35:04.819 --> 01:35:06.819
there. Is that fair? I think it's, I think you

01:35:06.819 --> 01:35:08.880
could call in major questions. I just think it's

01:35:08.880 --> 01:35:10.880
like Justice Barrack said in Nebraska versus

01:35:10.880 --> 01:35:13.619
Biden, the most natural way of understanding

01:35:13.619 --> 01:35:16.239
what the statute is about. We're talking about

01:35:16.239 --> 01:35:18.800
under the government's reading, a statute that

01:35:18.800 --> 01:35:21.500
gives the power to the president to junk the

01:35:21.500 --> 01:35:23.779
entire territory. I understand that, but you're

01:35:23.779 --> 01:35:26.600
not disputing licenses or otherwise means what

01:35:26.600 --> 01:35:29.880
it says. You're saying we should interpret that

01:35:29.880 --> 01:35:32.539
narrowly for particular reasons. So I think,

01:35:32.760 --> 01:35:34.840
well, I am disputing it as well. I think the

01:35:34.840 --> 01:35:36.899
license isn't something Justice Sotomayor was

01:35:36.899 --> 01:35:39.880
saying. Don't expand the power. They are not

01:35:39.880 --> 01:35:42.699
verbs. And so it is limited to the nine verbs

01:35:42.699 --> 01:35:44.460
there. Oh, I understand that. And so regulate,

01:35:44.460 --> 01:35:46.899
I don't think. Thank you. Thank you, counsel.

01:35:47.119 --> 01:35:50.859
Justice Thomas, anything further? I'd like to

01:35:50.859 --> 01:35:53.659
just revisit the point that Justice Alito was

01:35:53.659 --> 01:35:59.989
making with a similar question. If one of our

01:35:59.989 --> 01:36:04.989
major trading partners, for example China, held

01:36:04.989 --> 01:36:09.989
a U .S. citizen hostage, could the President,

01:36:10.409 --> 01:36:13.770
short of embargoing or setting quotas, say the

01:36:13.770 --> 01:36:17.810
most effective way to gain leverage is to impose

01:36:17.810 --> 01:36:22.510
a tariff for the purpose of leveraging his position

01:36:22.510 --> 01:36:26.899
to recover our hostage? No, your honor. So tariffs

01:36:26.899 --> 01:36:28.939
are different because they're revenue raising

01:36:28.939 --> 01:36:31.140
and there's, and I think it goes to the point

01:36:31.140 --> 01:36:33.119
I was saying to you in our very first colloquy,

01:36:33.220 --> 01:36:35.600
which is quotas embargoes and stuff are different

01:36:35.600 --> 01:36:37.899
for a different reason, which is there's no,

01:36:38.180 --> 01:36:41.659
there's a tariff architecture around title 19

01:36:41.659 --> 01:36:44.880
in title 19 that in tariff would like in your

01:36:44.880 --> 01:36:47.979
hypothetical would supersede. And here the president

01:36:47.979 --> 01:36:50.989
is seeking the power to set aside. all of our

01:36:50.989 --> 01:36:54.149
trade treaties unilaterally under the word regulate.

01:36:54.569 --> 01:36:59.569
I just don't think it can bear that weight. Justice

01:36:59.569 --> 01:37:04.010
Alito? You mentioned other tariff provisions

01:37:04.010 --> 01:37:08.550
that you think would be rendered redundant if

01:37:08.550 --> 01:37:12.409
we adopted the government's interpretation of

01:37:12.409 --> 01:37:16.250
AIIPA. One that you didn't mention which is discussed

01:37:16.250 --> 01:37:19.529
in an amicus brief, is Section 338 of the Tariff

01:37:19.529 --> 01:37:24.170
Act of 1930. Why doesn't the plain language of

01:37:24.170 --> 01:37:27.909
that provision, which does speak specifically

01:37:27.909 --> 01:37:34.029
about duties, provide a basis for all or virtually

01:37:34.029 --> 01:37:36.579
all of the tariffs that are at issue here? Yeah,

01:37:36.720 --> 01:37:38.539
the government's never made that argument, Justice

01:37:38.539 --> 01:37:41.359
Alito, and I think for very good reason, because

01:37:41.359 --> 01:37:44.779
it only applies to MFN violations, which are

01:37:44.779 --> 01:37:47.119
not at issue here. You can only tariff if the

01:37:47.119 --> 01:37:49.739
president, quote, finds as a fact that a country

01:37:49.739 --> 01:37:52.920
satisfies two conditions, including that it discriminates

01:37:52.920 --> 01:37:55.140
against the United States. There are also a host

01:37:55.140 --> 01:37:58.479
of other reasons why Section 338 may have lapsed,

01:37:58.479 --> 01:38:00.520
and that's why no president has ever used it.

01:38:00.779 --> 01:38:03.859
But look. What is the argument that it's lapsed?

01:38:04.759 --> 01:38:08.060
And we put this case on a very expedited schedule,

01:38:08.180 --> 01:38:12.140
and therefore there are limitations on what and

01:38:12.140 --> 01:38:14.859
the party's ability to answer each other's arguments

01:38:14.859 --> 01:38:18.880
or arguments that are made by amici. The amicus

01:38:18.880 --> 01:38:22.560
brief says that it hasn't lapsed. There are articles

01:38:22.560 --> 01:38:25.319
that say it hasn't lapsed. What is your argument?

01:38:25.659 --> 01:38:28.359
What is the basis for your argument that it lapsed?

01:38:28.520 --> 01:38:31.020
So two things, Justice Alito. Sections 252 and

01:38:31.020 --> 01:38:34.640
301 have been understood by many to have superseded

01:38:34.640 --> 01:38:37.560
section 338. And second, I don't think you have

01:38:37.560 --> 01:38:39.640
to get into this issue at all. We're not here

01:38:39.640 --> 01:38:42.539
saying that the government doesn't have a 338

01:38:42.539 --> 01:38:44.600
power. That's something that can be decided by

01:38:44.600 --> 01:38:47.199
other courts at other times. As these folks come

01:38:47.199 --> 01:38:48.779
to the court, as the government comes to the

01:38:48.779 --> 01:38:51.439
court today, they're citing one statute and one

01:38:51.439 --> 01:38:54.239
statute only, AIIPA. And we submit to you, it

01:38:54.239 --> 01:38:57.439
doesn't come even close to authorizing these

01:38:57.439 --> 01:39:00.079
worldwide tariffs? Well, what if the President

01:39:00.079 --> 01:39:05.399
tomorrow were to say, I'm reissuing these executive

01:39:05.399 --> 01:39:08.539
orders and I'm invoking, in addition to other

01:39:08.539 --> 01:39:12.500
authorities, Section 338 of the Tariff Act, 1930?

01:39:13.119 --> 01:39:15.520
I think at that point, we'd have that case. I

01:39:15.520 --> 01:39:18.340
mean, I'm not here to say that 338 does or doesn't

01:39:18.340 --> 01:39:21.079
do one thing. I'm responding to the government's

01:39:21.079 --> 01:39:23.600
argument, which is the invocation of IEPA and

01:39:23.600 --> 01:39:26.739
IEPA alone. But perhaps that point, Justice Alito,

01:39:26.880 --> 01:39:28.159
may get the court's comfort. So then, I mean,

01:39:28.159 --> 01:39:31.300
I understand party presentation and all of that

01:39:31.300 --> 01:39:35.159
and not being a court of first view. But in these

01:39:35.159 --> 01:39:38.640
circumstances, if that were to happen, and it

01:39:38.640 --> 01:39:40.960
might be a realistic possibility, you think,

01:39:41.079 --> 01:39:44.659
well, OK, then Government would continue to try

01:39:44.659 --> 01:39:48.500
to collect these tariffs and the plaintiffs here

01:39:48.500 --> 01:39:50.880
would have to go back to the Court of International

01:39:50.880 --> 01:39:53.739
Trade or the District Court and challenge it

01:39:53.739 --> 01:39:56.239
again and it would have to progress through those

01:39:56.239 --> 01:39:58.939
lower courts and come back to us when? A year

01:39:58.939 --> 01:40:02.119
from now? Six months from now? While the tariffs

01:40:02.119 --> 01:40:05.279
continue to be collected and the amount that's

01:40:05.279 --> 01:40:10.039
at stake mounts into the Billions, I mean, what

01:40:10.039 --> 01:40:13.279
are we at now? $100 billion? We get up to a trillion?

01:40:13.539 --> 01:40:15.939
That's what you're suggesting? So, Justice Alito,

01:40:16.079 --> 01:40:18.659
I think a few things. One is I think it's rich

01:40:18.659 --> 01:40:20.600
for the government to be making this argument

01:40:20.600 --> 01:40:23.439
about the refunds undermining us because they

01:40:23.439 --> 01:40:26.159
oppose the preliminary injunction in this case

01:40:26.159 --> 01:40:28.260
by saying, oh, don't worry, we'll give the refunds

01:40:28.260 --> 01:40:30.439
later. And they sought a stay in the Federal

01:40:30.439 --> 01:40:33.439
Circuit on exactly that ground, which was you

01:40:33.439 --> 01:40:36.180
don't need to implement the Federal Circuit's

01:40:36.180 --> 01:40:38.180
decision because we'll give the refunds later.

01:40:38.909 --> 01:40:42.550
Well, that really wasn't my question, Mr. Katyal.

01:40:42.869 --> 01:40:45.510
The question was whether it would make more sense

01:40:45.510 --> 01:40:48.069
for us to address that, if that is a possible

01:40:48.069 --> 01:40:50.909
justification for these tariffs, for us to address

01:40:50.909 --> 01:40:54.970
that now and get it over with rather than having

01:40:54.970 --> 01:40:57.670
this continue for who knows how long while it

01:40:57.670 --> 01:41:00.119
goes through the... through the procedures in

01:41:00.119 --> 01:41:02.039
the lower courts. Justice Alito, I think that

01:41:02.039 --> 01:41:05.100
has forfeited nine ways to Sunday. This amicus

01:41:05.100 --> 01:41:07.380
brief has been filed in every single stage of

01:41:07.380 --> 01:41:09.680
this case. The government's never embraced that

01:41:09.680 --> 01:41:12.239
argument. For them to be able to do so now I

01:41:12.239 --> 01:41:15.500
think is way, way too late. But I do think if

01:41:15.500 --> 01:41:18.300
you ruled, as we're suggesting you do, against

01:41:18.300 --> 01:41:20.600
the government, they can go and try and seek

01:41:20.600 --> 01:41:23.579
to use other authorities, whether it's 338, Section

01:41:23.579 --> 01:41:27.140
122, et cetera. Those are the ways prescribed

01:41:27.140 --> 01:41:29.640
by the Congress. As Justice Kavanaugh was saying

01:41:29.640 --> 01:41:33.439
earlier, every other president has used all this

01:41:33.439 --> 01:41:37.199
suite of other authorities, 201 for steel, for

01:41:37.199 --> 01:41:39.760
autos and things like that, 301 for countries

01:41:39.760 --> 01:41:42.560
like China. This president has come along and

01:41:42.560 --> 01:41:45.060
said something different. And with all due respect,

01:41:45.239 --> 01:41:47.960
we don't think IEPA allows him to do this junking

01:41:47.960 --> 01:41:49.939
of the worldwide tariff architecture. And what

01:41:49.939 --> 01:41:54.520
was the view, what were the views of President

01:41:54.520 --> 01:41:58.189
Trump's? immediate predecessors on the question

01:41:58.189 --> 01:42:01.609
of imposing tariffs or allowing free trade? What

01:42:01.609 --> 01:42:04.449
was their policy view? on that question. There's

01:42:04.449 --> 01:42:07.350
been a variety of different views about that,

01:42:07.630 --> 01:42:10.810
but the executive order, my friend said, well,

01:42:11.149 --> 01:42:14.609
prior presidents had no occasion to use the tariff

01:42:14.609 --> 01:42:17.510
power, which is belied by the very executive

01:42:17.510 --> 01:42:20.329
order he's defending here, which says that the

01:42:20.329 --> 01:42:22.329
trade deficits have been large and persistent

01:42:22.329 --> 01:42:26.329
every single quarter since 1976. And we've had

01:42:26.329 --> 01:42:29.750
trade wars, President Reagan initiated different

01:42:29.750 --> 01:42:31.989
ones and the use of different authorities, but

01:42:31.989 --> 01:42:35.380
never won. did a president try and seek AIIPA

01:42:35.380 --> 01:42:38.579
as the basis to rewrite the entire tariff code?

01:42:40.319 --> 01:42:43.979
I found it interesting to hear you make the non

01:42:43.979 --> 01:42:47.100
-delegation argument, Mr. Katyal. I wonder if

01:42:47.100 --> 01:42:50.560
you ever thought that your legacy as a constitutional

01:42:50.560 --> 01:42:55.420
advocate would be the man who revived the non

01:42:55.420 --> 01:42:58.670
-delegation argument. Heck yes, Justice Alito.

01:42:59.149 --> 01:43:01.170
I think Justice Gorsuch nailed it on the head

01:43:01.170 --> 01:43:04.270
when saying that when you're dealing with a statute

01:43:04.270 --> 01:43:07.729
that is this open -ended, unlike anything we've

01:43:07.729 --> 01:43:10.069
ever seen, to give the president this kind of

01:43:10.069 --> 01:43:12.729
power, yes, this isn't just delegation running

01:43:12.729 --> 01:43:14.970
riot. This is delegation that's a legislative

01:43:14.970 --> 01:43:18.789
attitude. Wouldn't you agree that statutes that

01:43:18.789 --> 01:43:22.149
confer on the president real emergency powers

01:43:22.149 --> 01:43:26.109
are often phrased much more broadly? than other

01:43:26.109 --> 01:43:29.090
statutes. Isn't that the very nature of an emergency?

01:43:29.270 --> 01:43:31.250
I know you dispute the fact that this is a real

01:43:31.250 --> 01:43:33.890
emergency, maybe it's not, but isn't it the very

01:43:33.890 --> 01:43:36.930
nature of an emergency provision that is going

01:43:36.930 --> 01:43:41.300
to be more open -ended? So, Justice Alito, we

01:43:41.300 --> 01:43:43.319
think it actually cuts the other way, as I was

01:43:43.319 --> 01:43:45.399
saying earlier. That's what Justice Jackson said.

01:43:45.819 --> 01:43:48.020
And, you know, you already confronted that in

01:43:48.020 --> 01:43:50.420
Dames and Moore and said it's not that open -ended,

01:43:50.460 --> 01:43:52.840
even though it's an emergency. And by the way,

01:43:53.199 --> 01:43:55.640
other emergency statutes have very serious limits.

01:43:55.859 --> 01:43:59.239
Section 122 is literally about President Nixon's

01:43:59.239 --> 01:44:02.359
proclamation of an emergency. That's what it's

01:44:02.359 --> 01:44:05.359
about. And it's limited 15%, 150 days. And what

01:44:05.359 --> 01:44:07.899
about the authorization for the use of military

01:44:07.899 --> 01:44:11.699
force in 2001, which gave the president the power

01:44:11.699 --> 01:44:16.220
to use all appropriate force? That's pretty open

01:44:16.220 --> 01:44:23.319
-ended. Would you apply the same non -delegation?

01:44:23.500 --> 01:44:26.060
argument there that you do here? Of course not,

01:44:26.100 --> 01:44:28.439
because there you have shared powers between

01:44:28.439 --> 01:44:30.699
the President and Article 1 and Article 2 powers.

01:44:30.880 --> 01:44:32.380
That's what I was saying. Well, it gets into

01:44:32.380 --> 01:44:34.720
the question of whether it was delegated or not.

01:44:34.720 --> 01:44:36.859
What was the scope of the delegation? Absolutely.

01:44:37.159 --> 01:44:39.659
But there, you know, it's military. There's a

01:44:39.659 --> 01:44:42.199
whole unique history behind that. But here you're

01:44:42.199 --> 01:44:45.159
talking about something that is exclusively committed

01:44:45.159 --> 01:44:49.039
to Congress and Article 1. And there, yes, when

01:44:49.039 --> 01:44:51.119
you have delegations of, I would say, Justice

01:44:51.119 --> 01:44:52.899
Alito, even when you have delegations in some...

01:44:52.909 --> 01:44:56.010
military cases and emergency statutes, they have

01:44:56.010 --> 01:44:59.909
all sorts of limits. So, 10 U .S .C. 2808 says

01:44:59.909 --> 01:45:03.149
that in a declaration of war or a national emergency,

01:45:03.529 --> 01:45:05.609
the President can, quote, undertake military

01:45:05.609 --> 01:45:08.350
construction necessary to support emergency use

01:45:08.350 --> 01:45:13.890
of the armed forces, but it has limits. I'm fascinated

01:45:13.890 --> 01:45:19.029
that the two instances where presidents have

01:45:19.029 --> 01:45:24.579
used their war powers to impose a tariff, Lincoln

01:45:24.579 --> 01:45:28.960
and Nixon, that Congress found it necessary to

01:45:28.960 --> 01:45:33.060
ratify their actions and that the court in both

01:45:33.060 --> 01:45:37.560
those cases, the intermediate court of appeals

01:45:37.560 --> 01:45:43.920
in Nixon and our own court, included that as

01:45:43.920 --> 01:45:48.220
part of their reasoning as justifying the use

01:45:48.220 --> 01:45:52.319
of war power in that situation. So I'm a little

01:45:52.319 --> 01:45:57.140
concerned why the fact that this act, a domestic

01:45:57.140 --> 01:46:01.199
act on emergency that uses a word, a general

01:46:01.199 --> 01:46:05.279
word like regulate, should take on a war power's

01:46:05.279 --> 01:46:09.199
meaning when in every other situation, whenever

01:46:09.199 --> 01:46:12.739
Congress intended domestic tax taxation, it said

01:46:12.739 --> 01:46:15.619
tax and regulate. Oh, Justice Ottemeyer, I wish

01:46:15.619 --> 01:46:17.659
I had an hour to talk about this with you because

01:46:17.659 --> 01:46:19.619
this is just this argument by the government

01:46:19.619 --> 01:46:22.760
advanced in their reply brief is wrong, you know,

01:46:23.000 --> 01:46:25.060
every which way. I'm saying that's another, that's

01:46:25.060 --> 01:46:27.600
your sixth way of differentiating your CETA,

01:46:27.600 --> 01:46:30.659
correct? So that was a war powers case. So it's

01:46:30.659 --> 01:46:33.680
a war powers case about conquered territory.

01:46:33.840 --> 01:46:36.659
It has nothing to do whatsoever with domestic

01:46:36.659 --> 01:46:40.539
tariffs. And absolutely, you're right in saying

01:46:40.539 --> 01:46:43.060
that the way that court, even in those cases,

01:46:43.220 --> 01:46:45.000
even at the height of the government's power,

01:46:45.180 --> 01:46:47.880
war powers, they said Congress had to ratify

01:46:47.880 --> 01:46:50.260
it. And that's what page 96 is saying. That hasn't

01:46:50.260 --> 01:46:52.220
happened here. That has not happened here, not

01:46:52.220 --> 01:46:54.199
even close. Well, it might not with Congress

01:46:54.199 --> 01:46:57.319
closed, but they can't even think about it right

01:46:57.319 --> 01:47:00.279
now. I'm going to assume, and maybe he can shake

01:47:00.279 --> 01:47:04.159
his head yes or no, that Justice Kapanor will

01:47:04.159 --> 01:47:08.130
ask you to go to Algonquin, which you didn't

01:47:08.130 --> 01:47:10.289
answer, and he's shaking his head. So I'll let

01:47:10.289 --> 01:47:13.609
him do that part, OK? Excellent. Algonquin, your

01:47:13.609 --> 01:47:15.810
honor, is under the - No, I'll let him do it.

01:47:15.869 --> 01:47:20.829
Oh, sorry. That was his question, but I want

01:47:20.829 --> 01:47:23.350
to make sure you get to it. We'll hear from Justice

01:47:23.350 --> 01:47:27.149
Kagan first. I have one specific question, one

01:47:27.149 --> 01:47:29.170
more general question. The specific question

01:47:29.170 --> 01:47:33.149
is, does it matter in the way we think about

01:47:33.149 --> 01:47:35.430
AIIPA, what Congress thought it was doing in

01:47:35.430 --> 01:47:39.470
AIIPA, what AIIPA in fact did, that at the time

01:47:39.470 --> 01:47:42.329
Congress thought it had available to it a legislative

01:47:42.329 --> 01:47:45.949
veto. I do think it's relevant, at least for

01:47:45.949 --> 01:47:49.369
delegation purposes, because, you know, as this

01:47:49.369 --> 01:47:52.390
case comes to the court, the one check that was

01:47:52.390 --> 01:47:55.369
in there, the so -called compromise, is a legislative

01:47:55.369 --> 01:47:58.149
veto which now no longer exists. And that's why

01:47:58.149 --> 01:48:00.850
I said to Justice Alito, this statute now looks

01:48:00.850 --> 01:48:03.489
unlike any other statute with respect to... I

01:48:03.489 --> 01:48:05.130
guess I'm wondering whether, though, it cuts

01:48:05.130 --> 01:48:07.250
against you as well, that Congress thought it

01:48:07.250 --> 01:48:10.189
had a legislative veto, so it didn't put in a

01:48:10.189 --> 01:48:12.210
variety of checks that it might have put in.

01:48:12.560 --> 01:48:15.180
had it not thought it had a legislative veto

01:48:15.180 --> 01:48:18.180
and you know that's just tough luck on Congress

01:48:18.180 --> 01:48:20.319
now. Yeah, I don't think so. I mean, Justice

01:48:20.319 --> 01:48:22.539
Kagan, I think it's a very tough common sense

01:48:22.539 --> 01:48:25.460
argument to make because every single delegation

01:48:25.460 --> 01:48:29.220
of tariff power statute from Congress to the

01:48:29.220 --> 01:48:32.239
president always has limits and including, you

01:48:32.239 --> 01:48:35.739
know, Section 122 passed just right before AIPA

01:48:35.739 --> 01:48:39.199
had in the case of the exact problem that this

01:48:39.199 --> 01:48:41.380
executive order is dealing with, large and serious

01:48:41.380 --> 01:48:43.399
trade deficits that said the way to deal with

01:48:43.399 --> 01:48:47.340
it is 15%, 150 days. The idea that three years

01:48:47.340 --> 01:48:50.489
later they just said, oh, no, junk the rule book,

01:48:50.729 --> 01:48:52.930
I think, is very difficult, and no Congress,

01:48:52.949 --> 01:48:55.449
I think, would rely just on the legislative veto

01:48:55.449 --> 01:48:57.829
for such a thing of such momentous importance.

01:48:58.130 --> 01:49:00.670
As you said to my colleague earlier, why would

01:49:00.670 --> 01:49:04.390
any president look to all of the different tariff

01:49:04.390 --> 01:49:07.630
statutes in Title 19 if you can just IEPA them

01:49:07.630 --> 01:49:11.329
all, French Revolution them all? General Sauer

01:49:11.329 --> 01:49:14.449
rests a lot on the President's inherent authority

01:49:14.449 --> 01:49:17.489
and I want to make sure I understand your answer

01:49:17.489 --> 01:49:20.729
to the Chief Justice and to Justice Alito as

01:49:20.729 --> 01:49:23.470
to where you think that authority exists in a

01:49:23.470 --> 01:49:26.289
way that actually would affect our interpretation

01:49:26.289 --> 01:49:28.890
of a statute and where you think it doesn't and

01:49:28.890 --> 01:49:32.090
why this falls into the second category. Given

01:49:32.090 --> 01:49:36.689
that, in General Sauer's view, this is obviously

01:49:36.689 --> 01:49:38.909
what the Chief Justice called foreign -facing.

01:49:39.119 --> 01:49:41.319
Yeah, so it may be foreign facing, but there

01:49:41.319 --> 01:49:44.239
is still no article to power whatsoever. There

01:49:44.239 --> 01:49:47.380
is No citation whatsoever in the government's

01:49:47.380 --> 01:49:50.920
brief to any notion that the president has article

01:49:50.920 --> 01:49:54.039
two tariff authority. Now look, I will say in

01:49:54.039 --> 01:49:57.079
wartime conquered territory, maybe, but this

01:49:57.079 --> 01:49:59.659
is not a, this is not a wartime or conquered

01:49:59.659 --> 01:50:02.939
territory statute. This is, or a use of the statute.

01:50:03.039 --> 01:50:06.640
They are terrifying the entire world in peacetime

01:50:06.640 --> 01:50:09.640
and they are doing it and asserting a power that

01:50:09.640 --> 01:50:12.260
no president in our history has ever had. Even

01:50:12.260 --> 01:50:15.020
justice Kavanaugh's example of Nixon. really

01:50:15.020 --> 01:50:17.979
far more limited, didn't blow past Congress's

01:50:17.979 --> 01:50:21.100
limits, as was said in Yoshida. This is a whole

01:50:21.100 --> 01:50:23.760
different animal. And maybe Congress has that

01:50:23.760 --> 01:50:26.039
power, as I agree with Justice Gorsuch. I don't

01:50:26.039 --> 01:50:28.699
think that it does. But boy, they got to say

01:50:28.699 --> 01:50:31.359
so really clearly. And here, there's nothing

01:50:31.359 --> 01:50:34.420
like that in the text of IEPA. Thank you. Justice

01:50:34.420 --> 01:50:37.739
Gorsuch. Well, I don't know if I agree with what

01:50:37.739 --> 01:50:42.869
you say I say, but at any rate. Back to the plain

01:50:42.869 --> 01:50:45.970
language, and just stick with me for a moment.

01:50:47.170 --> 01:50:50.949
The Constitution says that Congress gets to regulate

01:50:50.949 --> 01:50:54.729
commerce, and everybody understood that that

01:50:54.729 --> 01:50:58.229
meant and included the power to tariff. Story,

01:50:58.510 --> 01:51:03.850
Madison, okay? So that's sort of a problem, right?

01:51:04.090 --> 01:51:08.039
Regulate is a capacious verb. And then you've

01:51:08.039 --> 01:51:10.819
got the otherwise language as well, which we've

01:51:10.819 --> 01:51:13.859
sort of discussed. And just on the plain language,

01:51:14.260 --> 01:51:17.500
forget about the backdrop. Do you need major

01:51:17.500 --> 01:51:20.100
questions to win? I kind of think you might.

01:51:20.340 --> 01:51:22.659
No, I don't think so. I mean, if we did, I think

01:51:22.659 --> 01:51:24.560
we'd win for reasons expressed. But I don't think

01:51:24.560 --> 01:51:26.880
so at all. So Justice Gorsuch, our position is

01:51:26.880 --> 01:51:29.979
not. that regulate can never mean tax or tariff.

01:51:30.500 --> 01:51:32.520
Okay. Our brief at page 15 gives you an example.

01:51:32.920 --> 01:51:36.159
A president may regulate cars coming in to the

01:51:36.159 --> 01:51:38.939
city and then if it adds by charging tolls or

01:51:38.939 --> 01:51:41.220
something like that, absolutely in context it

01:51:41.220 --> 01:51:45.079
does. Here the context you're referring to, story

01:51:45.079 --> 01:51:48.199
and so on, says nothing about this case. That

01:51:48.199 --> 01:51:51.960
is the constitutional context about Congress's

01:51:51.960 --> 01:51:54.180
use of power. But it's part of how we understand

01:51:54.180 --> 01:51:57.779
language is used and And it's relevant for that

01:51:57.779 --> 01:52:02.000
purpose. And then when you've got licenses, which

01:52:02.000 --> 01:52:05.039
are economically the same thing, would you agree

01:52:05.039 --> 01:52:06.960
they're basically economically the same thing

01:52:06.960 --> 01:52:08.939
as tariffs? Sometimes they can be relatively

01:52:08.939 --> 01:52:10.479
similar. Okay, so you've got something that's

01:52:10.479 --> 01:52:13.560
economically identical to a tariff authorized

01:52:13.560 --> 01:52:16.760
by this statute. Where does that leave you as

01:52:16.760 --> 01:52:17.939
a matter of plain language? So let me take the

01:52:17.939 --> 01:52:20.720
question in two parts. One is about the word

01:52:20.720 --> 01:52:23.500
regulate, and the other is about licensing. With

01:52:23.500 --> 01:52:26.100
respect to the word regulate, when it's used

01:52:26.100 --> 01:52:28.560
in the constitutional sense, it's very different

01:52:28.560 --> 01:52:31.020
than the sense in IEPA that my friend is asserting.

01:52:31.340 --> 01:52:33.659
When we're asserting IEPA, we're talking about

01:52:33.659 --> 01:52:37.020
a statute that is granting the president massive

01:52:37.020 --> 01:52:40.220
powers. And so the relevant context that I think

01:52:40.220 --> 01:52:42.699
you look at in asking the question, what did

01:52:42.699 --> 01:52:46.079
Congress mean in 1977? The best context, the

01:52:46.079 --> 01:52:49.119
most natural context, is what does Congress say

01:52:49.119 --> 01:52:51.779
every time they grant the president such a power?

01:52:52.239 --> 01:52:56.060
And then just one other point on this. Constitutions

01:52:56.060 --> 01:52:58.819
are read totally differently. Story and Madison

01:52:58.819 --> 01:53:00.680
are talking about the constitutional phrase.

01:53:00.920 --> 01:53:03.119
And as Chief Justice Marshall said in McCulloch,

01:53:03.359 --> 01:53:05.600
a constitutional expounding, the prolixity of

01:53:05.600 --> 01:53:08.420
a legal code is the opposite of the way you read

01:53:08.420 --> 01:53:09.920
the Constitution. I do follow that argument.

01:53:10.460 --> 01:53:13.539
OK. What about otherwise, again? I just really

01:53:13.539 --> 01:53:15.859
want to make sure I understand. You say that

01:53:15.859 --> 01:53:17.619
there's a good reason why the Solicitor General

01:53:17.619 --> 01:53:19.239
didn't make that argument. I'll be curious to

01:53:19.239 --> 01:53:23.079
see what he has to say about that. But what's

01:53:23.079 --> 01:53:25.680
your best reasoning why the otherwise language

01:53:25.680 --> 01:53:27.640
doesn't exist? Because it's only a mechanism

01:53:27.640 --> 01:53:30.960
to implement the nine powers. And that licenses

01:53:30.960 --> 01:53:33.659
sometimes can be revenue raising and sometimes

01:53:33.659 --> 01:53:37.699
not. So if licenses can be revenue raising and

01:53:37.699 --> 01:53:40.500
you can do this otherwise through revenue raising

01:53:40.500 --> 01:53:42.739
things, why wouldn't that capture tariffs? So

01:53:42.739 --> 01:53:45.859
because I think, again, our point to you is that

01:53:46.239 --> 01:53:50.600
That there's two kinds of licenses come in two

01:53:50.600 --> 01:53:54.560
flavors. If an executive order is asserting a

01:53:54.560 --> 01:53:56.840
license fee to recoup the cost of government

01:53:56.840 --> 01:53:58.779
services or something like that, as I was saying

01:53:58.779 --> 01:54:01.539
to Justice Alito, that doesn't look different

01:54:01.539 --> 01:54:04.159
than the other verbs. That's not revenue raising.

01:54:04.260 --> 01:54:06.220
It doesn't implicate the founder's concern. It

01:54:06.220 --> 01:54:08.220
doesn't implicate the concerns you wrote about

01:54:08.220 --> 01:54:11.680
in consumer's research about the fear of the

01:54:11.680 --> 01:54:13.680
government. You're not answering my question,

01:54:13.800 --> 01:54:15.140
though, Mr. Katcha. I'm talking about just the

01:54:15.140 --> 01:54:19.449
plain text. And you're moving to major questions

01:54:19.449 --> 01:54:22.109
or a non -delete. That's the move you're making,

01:54:22.489 --> 01:54:25.710
which I think, you know, fine. We can consider

01:54:25.710 --> 01:54:27.750
that. I'm just talking about on the text, okay?

01:54:28.130 --> 01:54:30.770
It says by means of licenses or otherwise. You've

01:54:30.770 --> 01:54:32.850
conceded that licenses are economically equivalent

01:54:32.850 --> 01:54:35.970
to tariffs. And the statute says by means of

01:54:35.970 --> 01:54:41.449
licenses or otherwise. Regulate. It's only a

01:54:41.449 --> 01:54:45.149
means. Yeah, it's a means. Why isn't tariff a

01:54:45.149 --> 01:54:48.050
permissible means on the statute? Because, again,

01:54:48.289 --> 01:54:51.050
it has to be related to the nine powers. Well,

01:54:51.310 --> 01:54:53.449
a license can be. We have to acknowledge that.

01:54:53.590 --> 01:54:55.069
And you've said a license can raise revenue,

01:54:55.289 --> 01:54:57.149
and you've said a license is equivalent to a

01:54:57.149 --> 01:55:01.529
tariff economically. What about otherwise? Justice

01:55:01.529 --> 01:55:05.189
Gorsuch, if the license or the otherwise is raising

01:55:05.189 --> 01:55:08.050
revenue, then it is a difference in kind from

01:55:08.050 --> 01:55:10.270
the other verbs. And we looked at the history

01:55:10.270 --> 01:55:13.109
of licenses under TWIA, and we were not able

01:55:13.109 --> 01:55:16.109
to find any involving licenses or license fees.

01:55:16.890 --> 01:55:20.810
Okay. Last question. A little further afield.

01:55:21.670 --> 01:55:24.250
The parties discussed a little bit the analogy

01:55:24.250 --> 01:55:26.770
to the Foreign Commerce Clause. Of course, next

01:55:26.770 --> 01:55:30.180
to it is the Indian Commerce Clause. and delegations

01:55:30.180 --> 01:55:34.300
there were very broad initially, and involved

01:55:34.300 --> 01:55:40.340
licenses once again. And why shouldn't that inform

01:55:40.340 --> 01:55:42.239
our understanding of the Foreign Commerce Clause?

01:55:42.939 --> 01:55:45.659
I don't know that I have a position on that.

01:55:47.100 --> 01:55:49.140
It maybe is a little too a field for me to...

01:55:49.140 --> 01:55:52.180
Well, if the President has broad authority in

01:55:52.180 --> 01:55:54.699
one part of the Commerce Clause... Why wouldn't

01:55:54.699 --> 01:55:56.619
he have him in the next door neighbor? Oh, I

01:55:56.619 --> 01:55:58.779
see. Because here, Congress has specifically

01:55:58.779 --> 01:56:01.859
been given the exclusive power over tariffs.

01:56:01.920 --> 01:56:04.380
And so if they're to part with it, I think, as

01:56:04.380 --> 01:56:06.720
this Court has said in J .W. Hampton, which is

01:56:06.720 --> 01:56:08.640
a tariffs case. So you'd say the same principle

01:56:08.640 --> 01:56:10.939
would apply with tariffs, with the Indian Congress

01:56:10.939 --> 01:56:13.020
clause, is a tariff -specific argument. I think

01:56:13.020 --> 01:56:15.720
it's at least the intelligible principles is

01:56:15.720 --> 01:56:18.279
what this Court has used for tariffs specifically.

01:56:18.279 --> 01:56:20.100
And we think that's the way you should look at

01:56:20.100 --> 01:56:22.199
this. And then under intelligible principles,

01:56:22.479 --> 01:56:25.369
this is miles away. from any delegation we have

01:56:25.369 --> 01:56:28.970
ever seen. Thank you. Justice Kavanaugh. Just

01:56:28.970 --> 01:56:31.609
on the Nixon point, because you said, I think,

01:56:31.689 --> 01:56:34.590
that the current tariffs are unprecedented. I

01:56:34.590 --> 01:56:37.729
mean, that was a 10 percent worldwide tax on

01:56:37.729 --> 01:56:40.130
every import into the United States, I believe.

01:56:40.189 --> 01:56:42.090
I mean, we don't need – I just think that's a

01:56:42.090 --> 01:56:43.869
fact. You have arguments about that. You made

01:56:43.869 --> 01:56:46.149
good arguments about that. But I just wanted

01:56:46.149 --> 01:56:52.869
that point to be clear. On Algonquin. to pick

01:56:52.869 --> 01:56:58.449
up on just sort of my worst kind assist. Your

01:56:58.449 --> 01:57:00.750
argument here is that the statute has to use

01:57:00.750 --> 01:57:05.109
the word tariffs, I think, basically. And we

01:57:05.109 --> 01:57:07.949
went through Nixon and Yoshida, but then Algonquin,

01:57:08.170 --> 01:57:11.670
the statute for 232 does not use the word tariffs.

01:57:12.510 --> 01:57:16.949
It uses adjust imports. And President Ford had

01:57:16.949 --> 01:57:20.180
imposed, again, a pretty significant tariff on

01:57:20.180 --> 01:57:22.840
oil imports. It was a challenge. It got to this

01:57:22.840 --> 01:57:26.039
court. The attorney standing where you are stood

01:57:26.039 --> 01:57:28.399
up and said the license fee now before the court

01:57:28.399 --> 01:57:30.699
involves the broadest exercise of the tariff

01:57:30.699 --> 01:57:32.779
power in the history of the American Republic.

01:57:33.300 --> 01:57:35.819
In fact, we would have to go back to George III's

01:57:35.819 --> 01:57:38.560
stamp tax to determine as broad an executive

01:57:38.560 --> 01:57:41.619
power is claimed in this case. The statute is

01:57:41.619 --> 01:57:44.720
a simple one. It does not mention the tariff

01:57:44.720 --> 01:57:48.289
on its face. The argument there was the word

01:57:48.289 --> 01:57:51.729
tariff was not mentioned, used to just imports.

01:57:52.289 --> 01:57:55.649
The Court obviously 9 -0 rejects that argument

01:57:55.649 --> 01:57:59.130
in part because, as others have pointed out,

01:57:59.329 --> 01:58:00.949
the Court does a lot of questioning. What's the

01:58:00.949 --> 01:58:04.590
difference between a quota and a tariff? And

01:58:04.590 --> 01:58:06.189
what's the difference between an embargo and

01:58:06.189 --> 01:58:10.649
a tariff? And so when the Court writes the opinion,

01:58:11.090 --> 01:58:13.729
it says we find no support in the language of

01:58:13.729 --> 01:58:17.800
the statute, the language, for respondents' contention

01:58:17.800 --> 01:58:19.859
that the authorization of the President to adjust

01:58:19.859 --> 01:58:22.960
imports should be written to encompass only quantitative

01:58:22.960 --> 01:58:25.739
methods, i .e. quotas, as opposed to monetary

01:58:25.739 --> 01:58:29.159
methods, i .e. license fees, of effecting such

01:58:29.159 --> 01:58:33.020
adjustments. So on your basic point that you

01:58:33.020 --> 01:58:36.399
need the word tariff, Algonquin says you don't

01:58:36.399 --> 01:58:38.840
need the word tariff. And that was President

01:58:38.840 --> 01:58:43.220
Ford's oil imports. It's 9 -0. The oral argument

01:58:43.220 --> 01:58:46.680
goes through this. Your answer. There's a lot

01:58:46.680 --> 01:58:48.739
there, Justice Kavanaugh, so please bear with

01:58:48.739 --> 01:58:52.199
me. First, I'd like to clarify what our position

01:58:52.199 --> 01:58:54.640
is generally, and then deal with Algonquin. Our

01:58:54.640 --> 01:58:57.020
position is not that you have to use the word

01:58:57.020 --> 01:58:59.779
tariff or any other magic word. It's true that

01:58:59.779 --> 01:59:02.800
Congress has used a specialized vocabulary since

01:59:02.800 --> 01:59:06.000
the founding, since 1790, using words like tariffs

01:59:06.000 --> 01:59:08.159
or duties. But as I was saying earlier to Justice

01:59:08.159 --> 01:59:10.319
Gorsuch, you could even use the word regulate,

01:59:10.680 --> 01:59:12.859
as page 15 of our brief says. Or you could even

01:59:12.859 --> 01:59:15.159
imagine something that says, quote, the president

01:59:15.159 --> 01:59:18.510
may regulate importation by requiring importers

01:59:18.510 --> 01:59:21.590
to pay 10 % of the value of goods to the treasury.

01:59:21.770 --> 01:59:24.090
So I don't think you have to use any particular

01:59:24.090 --> 01:59:27.229
word. The question is, in context, is it does

01:59:27.229 --> 01:59:28.770
it? Algonquin didn't have anything like that,

01:59:28.789 --> 01:59:31.310
but keep going. So Algonquin does have, I think,

01:59:31.770 --> 01:59:35.819
a context that's. miles apart from what the government

01:59:35.819 --> 01:59:38.380
is seeking here to do with IEPA. So first of

01:59:38.380 --> 01:59:41.199
all, it is a common sense statute. I understand

01:59:41.199 --> 01:59:43.199
there's some rhetoric by, common sense reading

01:59:43.199 --> 01:59:44.319
of the statute. I know there's some rhetoric

01:59:44.319 --> 01:59:47.039
by the lawyer who stood here before, which is,

01:59:47.039 --> 01:59:51.680
of course, forgivable. But it was a statute about

01:59:51.680 --> 01:59:55.680
one product. 232 is article by article. It's

01:59:55.680 --> 01:59:59.239
one product. This is a billion products or even

01:59:59.239 --> 02:00:01.699
more that the government is seeking. The Algonquin

02:00:01.699 --> 02:00:04.619
was expressly a trade statute. It was the 1962

02:00:04.619 --> 02:00:08.220
Trade Act. It's everything this case isn't. Algonquin

02:00:08.220 --> 02:00:10.859
had a specific reference to the word duties in

02:00:10.859 --> 02:00:13.979
a separate provision. Algonquin had a legislative

02:00:13.979 --> 02:00:17.520
history that was clear as day that the president

02:00:17.520 --> 02:00:20.960
was given this power. And I understand this court

02:00:20.960 --> 02:00:23.500
today doesn't look to legislative history, but

02:00:23.500 --> 02:00:26.739
the way Algonquin got to where it was was by

02:00:26.739 --> 02:00:29.500
saying the legislative history, the chief sponsor

02:00:29.500 --> 02:00:31.760
of the act. I think I'll disagree with you on

02:00:31.760 --> 02:00:33.880
that. It does a plain text and then says, is

02:00:33.880 --> 02:00:35.659
there anything in the legislative history to

02:00:35.659 --> 02:00:38.060
defeat the plain text? So I disagree pretty strongly

02:00:38.060 --> 02:00:39.739
with you on that, but it doesn't defeat your

02:00:39.739 --> 02:00:42.859
point. Keep going. Okay. So I'd also say in the,

02:00:42.939 --> 02:00:46.220
maybe the most important point. Our argument

02:00:46.220 --> 02:00:49.319
is not just that you have to specifically authorize

02:00:49.319 --> 02:00:52.279
a tariff with some sort of word, but also that

02:00:52.279 --> 02:00:55.640
one way of understanding whether Congress is

02:00:55.640 --> 02:00:59.380
delegating its awesome It's awesome taxing powers

02:00:59.380 --> 02:01:02.039
to ask, are there limits to what Congress has

02:01:02.039 --> 02:01:05.279
put in? And in Algonquin, in section 232, the

02:01:05.279 --> 02:01:07.920
court points to and goes painstakingly through

02:01:07.920 --> 02:01:10.640
all the limits. The first words of the decision

02:01:10.640 --> 02:01:13.279
are all about how constrained the statute is.

02:01:13.439 --> 02:01:16.420
It's a reticulated scheme. The cabinet secretaries

02:01:16.420 --> 02:01:19.199
have to make certain findings. There are specific

02:01:19.199 --> 02:01:22.279
statutory factors Congress says the president

02:01:22.279 --> 02:01:25.180
must look at before acting. There are public

02:01:25.180 --> 02:01:29.100
hearings. There are limited to the extent necessary.

02:01:29.399 --> 02:01:31.680
All of that is in the statute. All of that is

02:01:31.680 --> 02:01:34.439
in the Algonquin opinion. None of it is in AIIPA.

02:01:34.859 --> 02:01:37.680
That's the problem. And that's why, just like

02:01:37.680 --> 02:01:40.220
Dames and Moore, the Algonquin case said this

02:01:40.220 --> 02:01:42.859
is a very limited decision, limited just to the

02:01:42.859 --> 02:01:46.680
facts. Thank you. Justice Barrett. So this license

02:01:46.680 --> 02:01:51.020
thing is important to me. And do you agree that

02:01:51.020 --> 02:01:55.210
pursuant to AIIPA, the president could impose,

02:01:55.609 --> 02:01:58.510
could regulate commerce by imposing a license

02:01:58.510 --> 02:02:01.909
fee? Sorry, could you say that again? Could the

02:02:01.909 --> 02:02:05.340
President regulate commerce under AIIPA? by using

02:02:05.340 --> 02:02:08.359
a licensing fee. Not a fee. So I should have

02:02:08.359 --> 02:02:11.100
said this earlier, but license is different from

02:02:11.100 --> 02:02:15.680
a licensing fee. AIPA and TUIA authorize licenses,

02:02:16.319 --> 02:02:20.119
not license fees, and no president is ever charged,

02:02:20.140 --> 02:02:23.159
to my knowledge, fees under those two statutes

02:02:23.159 --> 02:02:27.119
for the licenses. So fees impermissible, licenses

02:02:27.119 --> 02:02:29.600
okay. Fees permissible if they cover the costs

02:02:29.600 --> 02:02:33.260
of... The scheme might be might be. I mean, but

02:02:33.260 --> 02:02:35.859
but once they start revenue raising, you implicate

02:02:35.859 --> 02:02:38.579
the most serious concern. But I thought you conceded

02:02:38.579 --> 02:02:40.399
a justice score such there was no difference

02:02:40.399 --> 02:02:43.600
between a tariff and a licensing fee functionally

02:02:43.600 --> 02:02:50.699
if. If the licensing fee is just to recoup the

02:02:50.699 --> 02:02:53.180
cost of government services, I think that may

02:02:53.180 --> 02:02:55.319
be okay. I don't think you need to get into it.

02:02:55.500 --> 02:02:57.720
Here, the government is asserting a power which

02:02:57.720 --> 02:03:01.880
they say, in their briefs to you, raises $4 trillion.

02:03:02.380 --> 02:03:06.180
So you understand the statute to permit licensing

02:03:06.180 --> 02:03:09.840
in the sense of permission. Like, we will not

02:03:09.840 --> 02:03:12.520
allow you to trade with us. We will not allow

02:03:12.520 --> 02:03:15.380
your goods to be imported unless we license it.

02:03:15.699 --> 02:03:17.819
Absolutely. And, Justice Barrett, I think, like,

02:03:17.880 --> 02:03:20.399
just the natural reading, if you're to look at

02:03:20.399 --> 02:03:23.399
the word licenses and think, wow, Congress smuggled

02:03:23.399 --> 02:03:27.479
this incredible power to do all of these different

02:03:27.479 --> 02:03:29.720
things that the government is doing here, 39

02:03:29.720 --> 02:03:33.079
% taxes on some countries and others, through

02:03:33.079 --> 02:03:34.619
the word license, that's a tough one. Can you

02:03:34.619 --> 02:03:38.350
license exportation? I don't think so, for the

02:03:38.350 --> 02:03:40.670
reason that, you know... Well, right now, I actually

02:03:40.670 --> 02:03:42.550
looked into this. I mean, I think you're maybe

02:03:42.550 --> 02:03:45.189
not licensing fees. Exactly. But could you license

02:03:45.189 --> 02:03:47.109
exportation, like saying we're not going to allow

02:03:47.109 --> 02:03:49.050
certain products that have national security

02:03:49.050 --> 02:03:51.930
implications to be exported? Yes. So licensing

02:03:51.930 --> 02:03:54.270
could be used in that sense, not as a revenue

02:03:54.270 --> 02:03:56.810
aging... Yes. Okay. So you went back and forth

02:03:56.810 --> 02:04:00.470
with Justice Korsuch about the implications of

02:04:00.470 --> 02:04:02.170
the president's authority over foreign affairs

02:04:02.170 --> 02:04:04.350
and whether the major questions doctrine applies.

02:04:04.909 --> 02:04:09.489
You say that in IEPA, the president's war powers

02:04:09.489 --> 02:04:11.670
are not implicated. And that was part of the

02:04:11.670 --> 02:04:14.630
reason why you say that we should think of this

02:04:14.630 --> 02:04:16.649
differently than some of the historical examples

02:04:16.649 --> 02:04:19.189
where the commander in chief power, war powers,

02:04:19.390 --> 02:04:22.789
were implicated. But the same language appears

02:04:22.789 --> 02:04:25.359
in the Trading with the Enemies Act. in which

02:04:25.359 --> 02:04:27.819
war powers would be implicated. So do you think

02:04:27.819 --> 02:04:29.539
that language should be, and of course, that

02:04:29.539 --> 02:04:32.180
is what President Nixon relied on. So do you

02:04:32.180 --> 02:04:33.800
think that the language would be interpreted

02:04:33.800 --> 02:04:37.159
differently in that context, even though the

02:04:37.159 --> 02:04:38.720
commander -in -chief power and the war power

02:04:38.720 --> 02:04:40.680
would be implicated? A hundred percent, I think

02:04:40.680 --> 02:04:42.920
it would be interpreted differently. The same

02:04:42.920 --> 02:04:45.180
regulate commerce language. Yes, because once

02:04:45.180 --> 02:04:48.720
you're talking about... Carrying over wartime

02:04:48.720 --> 02:04:51.079
precedents to peacetime for I don't understand

02:04:51.079 --> 02:04:52.939
that then because everybody agrees the language

02:04:52.939 --> 02:04:55.979
came in IEPA came from the trading with the enemy

02:04:55.979 --> 02:04:58.520
act So you're saying it has one meaning in the

02:04:58.520 --> 02:04:59.960
Trading with the Enemy Act and a different meaning

02:04:59.960 --> 02:05:02.560
in IEPA, that same regulate commerce? No, I think

02:05:02.560 --> 02:05:04.840
that the conquered territory language and all

02:05:04.840 --> 02:05:07.100
of that may go to the president's Article II

02:05:07.100 --> 02:05:10.300
powers as inherent powers in conquered territory,

02:05:10.359 --> 02:05:12.260
but I don't think it gets the government where

02:05:12.260 --> 02:05:14.939
they need to go. The CAC brief and the brief

02:05:14.939 --> 02:05:18.159
by Professor Paul Stephen goes through and explains

02:05:18.159 --> 02:05:23.039
why in 1933, when Congress decided to bring these

02:05:23.039 --> 02:05:26.340
concepts into peacetime, it severed the wartime

02:05:26.340 --> 02:05:28.779
roots. And there's an extensive legislative history.

02:05:28.800 --> 02:05:30.960
OK, I understand that. But I thought that was

02:05:30.960 --> 02:05:35.279
about maybe I'm just not tracking. I mean, I

02:05:35.279 --> 02:05:36.720
think there's been some discussion of whether

02:05:36.720 --> 02:05:39.560
the president would have inherent Article II

02:05:39.560 --> 02:05:44.220
authority in wartime to impose tariffs to this.

02:05:44.279 --> 02:05:46.609
Is that what you're talking about? Are you actually

02:05:46.609 --> 02:05:49.630
talking about a statute that said regulate importation

02:05:49.630 --> 02:05:53.369
in wartime? And you think it could have the tariff

02:05:53.369 --> 02:05:56.010
power conferred through that language in a war

02:05:56.010 --> 02:05:58.470
-making statute, but not an IEPA? No. I don't

02:05:58.470 --> 02:06:00.229
think it confers it in either place. I think

02:06:00.229 --> 02:06:03.050
the president and the, it's located the president's

02:06:03.050 --> 02:06:05.770
power in conquered territories, not in the trading

02:06:05.770 --> 02:06:08.270
with any exact or anything like that. So it's

02:06:08.270 --> 02:06:10.310
inherent constitutional power coming from the

02:06:10.310 --> 02:06:14.210
law of war. Okay. And then if, if you win, Tell

02:06:14.210 --> 02:06:15.829
me how the reimbursement process would work.

02:06:15.949 --> 02:06:17.470
Would it be a complete mess? I mean, you're saying

02:06:17.470 --> 02:06:19.689
before the government promised reimbursement,

02:06:19.970 --> 02:06:22.789
and now you're saying, you know, oh, well, that's

02:06:22.789 --> 02:06:25.250
rich. But how would this work? It seems to me

02:06:25.250 --> 02:06:27.090
like it could be a mess. So the first thing I'd

02:06:27.090 --> 02:06:29.130
say is that just underscores just how major a

02:06:29.130 --> 02:06:31.189
question this is, the very fact that you were

02:06:31.189 --> 02:06:33.270
dealing with this with quotas. There's no refund

02:06:33.270 --> 02:06:36.229
process to the tunes of billions of dollars or

02:06:36.229 --> 02:06:39.369
embargoes, but there is here. But for our case,

02:06:39.430 --> 02:06:41.829
the way it would work is, in this case, the government

02:06:41.829 --> 02:06:44.140
stipulated for the five plaintiffs that they

02:06:44.140 --> 02:06:46.500
would get the refunds. So for us, that's how

02:06:46.500 --> 02:06:48.699
it would work. Your question, I take it, is about

02:06:48.699 --> 02:06:50.840
everyone else. We don't have a class action or

02:06:50.840 --> 02:06:52.960
anything like that. With respect to everyone

02:06:52.960 --> 02:06:56.289
else, there's a whole specialized body of trade

02:06:56.289 --> 02:07:01.130
law and it's in 19 USC 1514 outlines all these

02:07:01.130 --> 02:07:03.909
administrative procedures. It's a very complicated

02:07:03.909 --> 02:07:05.970
thing. There's got to be an administrative protest.

02:07:06.250 --> 02:07:09.210
There was a harbor management case earlier that

02:07:09.210 --> 02:07:11.170
this court was involved with in United States

02:07:11.170 --> 02:07:13.850
shoe in which, you know, the refund process took

02:07:13.850 --> 02:07:16.529
a long time. There were any number of claims

02:07:16.529 --> 02:07:20.039
and equitable release. So a mess. So it's difficult,

02:07:20.319 --> 02:07:23.140
absolutely. We don't deny that it's difficult,

02:07:23.260 --> 02:07:27.659
but I think what this court has said in the McKesson

02:07:27.659 --> 02:07:30.800
case in 1990 is that serious economic dislocation

02:07:30.800 --> 02:07:33.340
isn't a reason to do something. Northern Pipeline,

02:07:33.380 --> 02:07:35.800
you guys staged your decision for a while in

02:07:35.800 --> 02:07:38.539
order to let the congressional process unfold.

02:07:38.840 --> 02:07:41.140
There may be a congressional process here as

02:07:41.140 --> 02:07:45.479
well. You may be able to also... be that this

02:07:45.479 --> 02:07:47.800
court could limit its decision to prospective

02:07:47.800 --> 02:07:50.039
relief under the John Q. Hammond's case. So there's

02:07:50.039 --> 02:07:53.119
lots of possibilities. Justice Jackson? So I

02:07:53.119 --> 02:07:56.260
think I read Algonquin differently than Justice

02:07:56.260 --> 02:08:01.880
Kavanaugh. When I look at its analysis, it absolutely

02:08:01.880 --> 02:08:04.560
does a textual review. But then it says, quote,

02:08:04.840 --> 02:08:08.699
turning from Section 232's language to its legislative

02:08:08.699 --> 02:08:11.880
history, again, there is much to suggest that

02:08:11.880 --> 02:08:13.840
the president's authority extends to the imposition

02:08:13.840 --> 02:08:19.539
of monetary exactions. And I appreciate that

02:08:19.539 --> 02:08:24.000
perhaps that factor is no longer in vogue, but

02:08:24.000 --> 02:08:26.640
did you look into the legislative history here

02:08:26.640 --> 02:08:29.680
to determine whether there is anything that supports

02:08:29.680 --> 02:08:32.100
the conclusion that Congress actually intended

02:08:32.100 --> 02:08:36.010
for this AIIPA statute? to allow or authorize

02:08:36.010 --> 02:08:39.279
the president to. impose these tariffs. I did

02:08:39.279 --> 02:08:42.340
and if I blinked I would miss it because it was

02:08:42.340 --> 02:08:45.539
virtually nothing and in fact both page two of

02:08:45.539 --> 02:08:48.199
both the House and Senate report outline all

02:08:48.199 --> 02:08:52.140
of the powers that are given under AIIPA and

02:08:52.140 --> 02:08:55.800
none of them have tariff. There's one brief mention

02:08:55.800 --> 02:08:59.760
of tariff in the legislative history but nothing

02:08:59.760 --> 02:09:02.819
else. And by the way AIIPA passed by voice vote.

02:09:03.460 --> 02:09:05.939
There was not controversial. We don't deny AIIPA

02:09:05.939 --> 02:09:08.890
is a big major statute, but the question is,

02:09:08.989 --> 02:09:12.189
did it authorize tariffs? One of the most contested

02:09:12.189 --> 02:09:14.609
things since our founding. And you say there's

02:09:14.609 --> 02:09:16.270
nothing in the legislative history to suggest

02:09:16.270 --> 02:09:20.289
it. Now, to the extent that Congress did authorize

02:09:20.289 --> 02:09:23.310
the president to do something, that those verbs

02:09:23.310 --> 02:09:25.529
are there, that the Congress was giving the president

02:09:25.529 --> 02:09:29.569
some authority, Do you see a theme connecting

02:09:29.569 --> 02:09:31.649
those verbs? What was Congress trying to do?

02:09:31.750 --> 02:09:34.510
And let me just say that I see in the Senate

02:09:34.510 --> 02:09:37.050
report, which I mentioned earlier, that Congress

02:09:37.050 --> 02:09:39.250
says that it was trying to give the president

02:09:39.250 --> 02:09:43.189
the authority to, quote, control or freeze property

02:09:43.189 --> 02:09:45.829
transactions where a foreign interest is involved.

02:09:46.229 --> 02:09:48.949
And that seems to dovetail with the verbs that

02:09:48.949 --> 02:09:51.130
are being used in the statute. But what's your

02:09:51.130 --> 02:09:53.529
view of what Congress was trying to do with this

02:09:53.529 --> 02:09:55.909
legislation? That's exactly right. The responding

02:09:55.909 --> 02:10:00.239
to all sorts of foreign policy emergencies and

02:10:00.239 --> 02:10:02.460
foreign threats, and they're giving the president

02:10:02.460 --> 02:10:05.420
economic sanctions power. So what does the word

02:10:05.420 --> 02:10:10.039
regulate importation do under that framework?

02:10:10.220 --> 02:10:12.260
If we understand that Congress was trying to

02:10:12.260 --> 02:10:15.199
give this kind of embargo authority in the time

02:10:15.199 --> 02:10:18.380
of an emergency, when it says regulate importation,

02:10:18.579 --> 02:10:21.300
what was it envisioning? It was envisioning all

02:10:21.300 --> 02:10:24.220
the things that the president since 1977, going

02:10:24.220 --> 02:10:26.760
back to Justice Kavanaugh's question, have used

02:10:26.760 --> 02:10:29.880
it for. So they've used it for quotas, like limitations

02:10:29.880 --> 02:10:32.539
on the number of goods. They've used it for screening

02:10:32.539 --> 02:10:35.079
and reporting requirements, like Executive Order

02:10:35.079 --> 02:10:38.819
12284 about reporting property of the Shaw. And

02:10:38.819 --> 02:10:40.880
they've used it for standards, like domestic

02:10:40.880 --> 02:10:44.159
safety standards, environmental standards, labor

02:10:44.159 --> 02:10:46.239
requirements. They've used it for embargoes.

02:10:46.479 --> 02:10:49.420
So all of those are things that I think Congress

02:10:49.420 --> 02:10:52.319
had in mind in IEPA. And I think the proof of

02:10:52.319 --> 02:10:55.340
this, that it's not this massive statute that

02:10:55.340 --> 02:10:57.880
allows the government to do anything, is Dames

02:10:57.880 --> 02:11:00.439
and Moore itself, because this court rejected

02:11:00.439 --> 02:11:05.460
the idea that regulate includes the claims extinguishment

02:11:05.460 --> 02:11:08.500
that was at issue in that case. It's a much more

02:11:08.500 --> 02:11:11.260
limited statute. And Justice Jackson, there was

02:11:11.260 --> 02:11:15.319
a predecessor, Justice Jackson, who said, you

02:11:15.319 --> 02:11:17.560
know, that quote, for all its defects, delays,

02:11:17.699 --> 02:11:20.340
and inconveniences, men have discovered no technique

02:11:20.340 --> 02:11:23.060
for long preserving free government except that

02:11:23.060 --> 02:11:26.039
the executive be under the law and that the law

02:11:26.039 --> 02:11:28.659
be made by parliamentary deliberations. Such

02:11:28.659 --> 02:11:31.439
institutions may be destined to pass away, but

02:11:31.439 --> 02:11:34.159
it is the duty of this court to be last, not

02:11:34.159 --> 02:11:37.180
first, to give it up. And I take it my friend's

02:11:37.180 --> 02:11:40.060
argument on the other side is in deep tension

02:11:40.060 --> 02:11:42.699
with Youngstown and that canonical principle.

02:11:42.939 --> 02:11:54.899
Thank you. Thank you, counsel. Mr. Gutman. Mr.

02:11:54.920 --> 02:11:57.239
Chief Justice, and may it please the court. I'd

02:11:57.239 --> 02:11:59.359
like to begin by picking up with the exchanges

02:11:59.359 --> 02:12:02.140
with Justice Barrett and Justice Gorsuch about

02:12:02.140 --> 02:12:05.939
licenses and license fees. Because I think we

02:12:05.939 --> 02:12:07.619
ended on the right note, but I just wanted to

02:12:07.619 --> 02:12:10.380
make sure that at least my client's position

02:12:10.380 --> 02:12:12.880
is clear on this. Licenses are different from

02:12:12.880 --> 02:12:16.989
license fees. And I am not aware of any history

02:12:16.989 --> 02:12:20.229
in the five decades that IEPA has been in force

02:12:20.229 --> 02:12:25.149
of any fees charged for the licenses under this

02:12:25.149 --> 02:12:29.729
statute. Licenses can be used, for example, the

02:12:29.729 --> 02:12:32.270
president might ban certain transactions with

02:12:32.270 --> 02:12:35.029
a foreign country, but then grant licenses to

02:12:35.029 --> 02:12:37.829
do them for humanitarian reasons. But as far

02:12:37.829 --> 02:12:39.710
as I'm aware, there's never been a fee charged

02:12:39.710 --> 02:12:42.819
for that. And I do welcome the Court's questions.

02:12:43.600 --> 02:12:45.560
But I think that's, I just want to make absolutely

02:12:45.560 --> 02:12:47.739
clear. I think the question is, what does or

02:12:47.739 --> 02:12:51.579
otherwise do? Well, or otherwise could be things

02:12:51.579 --> 02:12:54.960
like instructions or licenses. But again, it's

02:12:54.960 --> 02:12:57.779
fundamentally, having something that is a revenue

02:12:57.779 --> 02:13:00.159
raising measure or even that is just an exaction

02:13:00.159 --> 02:13:04.640
of some sort is fundamentally categorically different

02:13:04.640 --> 02:13:07.000
from what we understand instructions and licenses

02:13:07.000 --> 02:13:11.100
to be involved, just like we think regulate doesn't

02:13:11.100 --> 02:13:13.720
carry the financial connotation given the other

02:13:13.720 --> 02:13:18.300
verbs there. If I could turn to some of the 19th

02:13:18.300 --> 02:13:20.300
century history that we were discussing as well,

02:13:20.380 --> 02:13:23.220
because I think there may be a little bit more

02:13:23.220 --> 02:13:28.279
to add there. The 19th century cases about the

02:13:28.279 --> 02:13:32.720
president's inherent Article II authority in

02:13:32.720 --> 02:13:37.460
a wartime with respect to importation is not

02:13:37.460 --> 02:13:41.239
the power to impose tariffs on imports coming

02:13:41.239 --> 02:13:43.979
into the United States. That is not what any

02:13:43.979 --> 02:13:46.720
of those cases were about. They were about the

02:13:46.720 --> 02:13:51.460
president's power in a wartime as an occupying

02:13:51.460 --> 02:13:54.680
military force to impose tariffs in occupied

02:13:54.680 --> 02:13:57.319
territory, that would be in Mexico, in the Philippines,

02:13:57.579 --> 02:14:01.130
in California. The Civil War case might be the

02:14:01.130 --> 02:14:03.850
closest case, but even there, what we were talking

02:14:03.850 --> 02:14:07.069
about were essentially, there were licensing

02:14:07.069 --> 02:14:10.529
fees, but they were export fees. They were fees

02:14:10.529 --> 02:14:13.789
that were being imposed on the exportation of

02:14:13.789 --> 02:14:19.470
cotton from the occupied south into the north.

02:14:19.670 --> 02:14:22.670
And so I don't think any of that provides authority

02:14:22.670 --> 02:14:25.050
for this general notion that there is a background.

02:14:25.369 --> 02:14:27.569
Principle that the president even in wartime

02:14:27.569 --> 02:14:30.430
has an article to authority to impose tariffs

02:14:30.430 --> 02:14:35.310
certainly without the consent of Congress You

02:14:35.310 --> 02:14:38.649
agree I assume given all the verbs on this list

02:14:38.649 --> 02:14:42.050
that the president could do something like just

02:14:42.050 --> 02:14:46.130
shut down all trade Between us and say, you know

02:14:46.130 --> 02:14:50.270
China, right? Yes, I mean there are other limitations.

02:14:50.630 --> 02:14:52.869
Okay, so doesn't it seem and I think this is

02:14:52.869 --> 02:14:55.460
one of the points that Algonquin makes, and I

02:14:55.460 --> 02:14:57.020
think it's a point that Justice Kavanaugh was

02:14:57.020 --> 02:14:59.520
making, doesn't it seem then, I mean, I don't

02:14:59.520 --> 02:15:02.260
want to use the phrase lesser power, lesser included

02:15:02.260 --> 02:15:04.420
measure, but doesn't it seem like it would make

02:15:04.420 --> 02:15:06.840
sense then that Congress would want the president

02:15:06.840 --> 02:15:09.779
to use something that was less, weaker medicine

02:15:09.779 --> 02:15:12.340
than completely shutting down trade as leverage

02:15:12.340 --> 02:15:14.760
to try to get a foreign nation to do something?

02:15:14.960 --> 02:15:17.260
And the president can in the form of, for example,

02:15:17.520 --> 02:15:21.560
quotas, but what makes an embargo or quotas fundamentally

02:15:21.560 --> 02:15:25.189
different from tariffs, as my friend has already

02:15:25.189 --> 02:15:28.529
explained, is the revenue raising aspect of that.

02:15:28.529 --> 02:15:31.649
That makes it a far more significant power. It

02:15:31.649 --> 02:15:35.630
creates additional danger of overuse. And I think

02:15:35.630 --> 02:15:37.909
the other point, as Justice Jackson was pointing

02:15:37.909 --> 02:15:42.170
out, is that it cedes control over whether the

02:15:42.170 --> 02:15:45.130
transaction occurs from the government to the

02:15:45.130 --> 02:15:47.210
individuals engaging in this transaction. And

02:15:47.210 --> 02:15:49.689
that is not what AIIPA is intending. What makes

02:15:49.689 --> 02:15:53.329
something revenue raising? I mean, fees. Raise

02:15:53.329 --> 02:15:55.510
money and unless they're gonna be kind of one

02:15:55.510 --> 02:15:57.770
-to -one. This is exactly what it costs I mean

02:15:57.770 --> 02:16:00.430
it might raise some surplus it might raise some

02:16:00.430 --> 02:16:03.770
raise some extra So is it the purpose if the

02:16:03.770 --> 02:16:06.550
purpose of the fee or the tariff is to raise

02:16:06.550 --> 02:16:09.159
money? Is it the purpose that makes it revenue

02:16:09.159 --> 02:16:11.640
raising, or is it just the fact of surplus created

02:16:11.640 --> 02:16:13.960
that goes to the Treasury? How do we decide?

02:16:14.060 --> 02:16:16.100
Yes, I think it's the effect. And to be clear,

02:16:16.859 --> 02:16:19.840
I think there would be a serious difficulty with

02:16:19.840 --> 02:16:22.159
interpreting any of these words, even to allow

02:16:22.159 --> 02:16:25.739
revenue -neutral exactions here. Because none

02:16:25.739 --> 02:16:28.220
of them involve, and again, as far as I'm aware,

02:16:28.359 --> 02:16:31.119
IEPA has never been used in that way. Not even

02:16:31.119 --> 02:16:35.200
a processing fee? I am not aware of any use of

02:16:35.200 --> 02:16:39.579
that sort of under AIIPA, but even if that is

02:16:39.579 --> 02:16:42.100
permissible, I think that's permissible precisely

02:16:42.100 --> 02:16:44.840
because it doesn't have the effect of raising

02:16:44.840 --> 02:16:47.979
revenue. Mr. Katyal referred to common sense

02:16:47.979 --> 02:16:51.100
several times, and I want to pick up on Justice

02:16:51.100 --> 02:16:53.500
Barrett's question, because your interpretation

02:16:53.500 --> 02:16:56.739
of the statute, as she pointed out, would allow

02:16:56.739 --> 02:17:00.520
the president to shut down all trade with every

02:17:00.520 --> 02:17:03.690
other country in the world. or to impose some

02:17:03.690 --> 02:17:08.950
significant quota on imports from every other

02:17:08.950 --> 02:17:13.229
country in the world, but would not allow a 1

02:17:13.229 --> 02:17:18.909
% tariff. And that leaves, in the government's

02:17:18.909 --> 02:17:22.469
words in its brief, an odd donut hole in the

02:17:22.469 --> 02:17:26.469
statute. Why would a rational Congress say, yeah,

02:17:26.530 --> 02:17:27.989
we're going to give the president the power to

02:17:27.989 --> 02:17:30.739
shut down trade? I mean, think about the effects.

02:17:31.059 --> 02:17:33.819
But you're admitting that power's in there. Yeah.

02:17:33.819 --> 02:17:41.920
But can't do a 1 % tariff. That doesn't seem,

02:17:41.979 --> 02:17:45.200
but I want to get your answer, to have a lot

02:17:45.200 --> 02:17:47.479
of common sense behind it. I think it absolutely

02:17:47.479 --> 02:17:48.979
does, because it's a fundamentally different

02:17:48.979 --> 02:17:51.620
power. It's not a donut hole. It's a different

02:17:51.620 --> 02:17:56.020
kind of pastry. And on that power, that's a good

02:17:56.020 --> 02:18:00.319
one. On that power, though, And you've said this

02:18:00.319 --> 02:18:03.059
many times, Mr. Katyal, too. And look, I get

02:18:03.059 --> 02:18:06.559
this, obviously. But the court has repeatedly

02:18:06.559 --> 02:18:11.879
said a tariff on foreign imports is an exercise

02:18:11.879 --> 02:18:16.120
of the commerce power, not of the taxation power.

02:18:16.719 --> 02:18:19.059
And I'm repeating some, but John Marshall said

02:18:19.059 --> 02:18:21.340
that, and Joseph Story, and Chief Justice Hughes

02:18:21.340 --> 02:18:24.940
in the 1933 case. And we've said that quite a

02:18:24.940 --> 02:18:28.120
bit of time, which seems to at least undermine

02:18:28.120 --> 02:18:31.059
a bit your point that it's an entirely different

02:18:31.059 --> 02:18:33.360
power, because if it is foreign commerce power,

02:18:33.659 --> 02:18:35.500
it's the same power that Justice Barrett was

02:18:35.500 --> 02:18:38.440
talking about of just embargoing trade with the

02:18:38.440 --> 02:18:41.040
entire world, which you admit is in this statute.

02:18:41.579 --> 02:18:43.219
Well, there are a couple of points in there,

02:18:43.239 --> 02:18:46.639
and I'll try to get to all of them, but... I

02:18:46.639 --> 02:18:48.520
mean, I think all of us agree that context is

02:18:48.520 --> 02:18:51.180
what matters here and that you certainly could

02:18:51.180 --> 02:18:55.440
use the word regulate to talk about a tariffing

02:18:55.440 --> 02:18:56.979
power, like you could use it to talk about a

02:18:56.979 --> 02:19:00.459
taxing power. I mean, we impose taxes for regulatory

02:19:00.459 --> 02:19:04.450
purposes as well. But the federal government

02:19:04.450 --> 02:19:07.530
hasn't identified a single other federal statute

02:19:07.530 --> 02:19:10.969
that uses the term regulate to authorize tariffs

02:19:10.969 --> 02:19:14.450
or taxes. That is just a different kind of power.

02:19:14.469 --> 02:19:17.069
And I thought your point in response to Justice

02:19:17.069 --> 02:19:20.430
Kavanaugh, it's a different kind of power because

02:19:20.430 --> 02:19:23.129
the power that's being authorized by this statute

02:19:23.129 --> 02:19:28.090
is the power to control or freeze trade. That's

02:19:28.090 --> 02:19:31.090
what Congress was getting at. And so if that's

02:19:31.090 --> 02:19:34.510
true, then we have to re -regulate in that context.

02:19:34.969 --> 02:19:36.950
That's exactly right. And I think the reason,

02:19:37.149 --> 02:19:40.430
getting back to common sense as to why a legislature

02:19:40.430 --> 02:19:43.350
might authorize that, is that you might not fear

02:19:43.350 --> 02:19:45.590
abuse of that power in the same way that you

02:19:45.590 --> 02:19:48.149
would be concerned about abuse of a power to

02:19:48.149 --> 02:19:52.750
impose unlimited taxes with sort of no controlling...

02:19:52.750 --> 02:19:55.149
Well, why is that? Because, I mean, there is

02:19:55.149 --> 02:19:58.229
a sort of commonsensical intuition that one is

02:19:58.229 --> 02:20:01.649
in Justice Kavanaugh's example. that one is greater

02:20:01.649 --> 02:20:05.670
and one is lesser. So why is that not right?

02:20:05.870 --> 02:20:08.770
Because to be blunt about it, one of them there's

02:20:08.770 --> 02:20:10.329
something in it for the government and one of

02:20:10.329 --> 02:20:14.190
them there isn't. Actions that bring in revenue

02:20:14.190 --> 02:20:17.950
from the pockets of taxpayers to the Treasury

02:20:17.950 --> 02:20:20.389
pose a different set of concerns. Our framers

02:20:20.389 --> 02:20:23.489
were very concerned about that. A different set

02:20:23.489 --> 02:20:26.569
of concerns how? Why? Because they bring in revenue.

02:20:26.760 --> 02:20:29.879
And because that creates a... Well, that seems

02:20:29.879 --> 02:20:32.940
a little tautological. Why is it that the revenue

02:20:32.940 --> 02:20:35.760
raisers are in a different category? Because,

02:20:36.079 --> 02:20:39.059
look, if there is some sort of international

02:20:39.059 --> 02:20:42.979
emergency and the appropriate way to deal with

02:20:42.979 --> 02:20:45.059
it is to make sure that no more than a thousand

02:20:45.059 --> 02:20:48.659
of this product comes into this country at a

02:20:48.659 --> 02:20:52.239
particular time... This statute gives the president

02:20:52.239 --> 02:20:54.600
the power to ensure that exactly no more than

02:20:54.600 --> 02:20:57.540
1 ,000 come in at this time. Setting a tariff

02:20:57.540 --> 02:21:00.260
doesn't ensure that only 1 ,000 will come into

02:21:00.260 --> 02:21:02.979
this country. It cedes control over whether the

02:21:02.979 --> 02:21:06.719
transaction occurs, and what it does is it then

02:21:06.719 --> 02:21:13.309
adds revenue to the treasury and that is again

02:21:13.309 --> 02:21:15.510
something that our framers thought was extremely

02:21:15.510 --> 02:21:19.430
important and a core article one. But Algonquin,

02:21:19.670 --> 02:21:21.569
I mean this kind of goes back to Justice Kavanaugh's

02:21:21.569 --> 02:21:24.190
point, Algonquin rejects the idea that it was

02:21:24.190 --> 02:21:27.489
impermissible to use the fees and we can call

02:21:27.489 --> 02:21:30.389
them license fees that functioned as tariffs

02:21:30.389 --> 02:21:33.110
or duties in that case, whatever. But Algonquin

02:21:33.110 --> 02:21:36.409
said that Congress could use the exaction of

02:21:36.409 --> 02:21:40.000
money to control quantity. And I hear what you're

02:21:40.000 --> 02:21:41.700
saying is like, well, you can control quantity

02:21:41.700 --> 02:21:44.280
by numbers by imposing hard limits, but not by

02:21:44.280 --> 02:21:46.879
money. But that's not what Algonquin said. So

02:21:46.879 --> 02:21:50.819
I guess why? Well, and I don't mean to suggest

02:21:50.819 --> 02:21:54.079
that you can't use exactions to control quantity.

02:21:54.719 --> 02:21:57.540
I think Algonquin just shows the importance of

02:21:57.540 --> 02:22:00.379
context. It might be perfectly natural to read

02:22:00.379 --> 02:22:03.950
a phrase like adjust imports. In the context

02:22:03.950 --> 02:22:05.930
of a statute that talks about tariffs, in the

02:22:05.930 --> 02:22:09.590
context of the Trade Expansion Act that has all

02:22:09.590 --> 02:22:11.370
sorts of provisions about tariffs and about the

02:22:11.370 --> 02:22:13.909
President adjusting tariff rates, it might be

02:22:13.909 --> 02:22:16.549
perfectly natural in that context to read a phrase

02:22:16.549 --> 02:22:19.729
like adjust the imports to be referring to changing

02:22:19.729 --> 02:22:22.129
tariff rates. It's just as unnatural to read

02:22:22.129 --> 02:22:26.090
a phrase like regulate importation to discuss

02:22:26.090 --> 02:22:27.870
that when the statute has nothing to do with

02:22:27.870 --> 02:22:30.489
tariffs and doesn't otherwise mention tariffs

02:22:30.489 --> 02:22:35.459
at all. Do you think that just blocking all trade

02:22:35.459 --> 02:22:38.299
is a bigger deal than imposing a 1 % tariff across

02:22:38.299 --> 02:22:40.379
the board? I think it would be a huge deal. It

02:22:40.379 --> 02:22:43.479
is just a different kind of deal. Algonquin was

02:22:43.479 --> 02:22:45.399
not a constitutional case, right? Correct. It

02:22:45.399 --> 02:22:47.500
was a statutory interpretation case. Correct.

02:22:47.559 --> 02:22:50.120
And so the question there was simply, was Congress

02:22:50.120 --> 02:22:53.299
actually... trying to give or did Congress in

02:22:53.299 --> 02:22:55.540
that statute give the president the authority

02:22:55.540 --> 02:22:59.959
to impose these kinds of exactions? And the court

02:22:59.959 --> 02:23:02.760
looked at the text, and it looked at the legislative

02:23:02.760 --> 02:23:05.579
history in which there was a number of clues

02:23:05.579 --> 02:23:08.120
that Congress had actually intended to do that.

02:23:08.260 --> 02:23:10.620
Yes. Yes. And it looked not just at the text

02:23:10.620 --> 02:23:13.700
of those specific words, but also the context

02:23:13.700 --> 02:23:16.879
of what else was in the statute and some of the

02:23:16.879 --> 02:23:19.219
factors that the president was supposed to be

02:23:19.219 --> 02:23:22.379
considering. And it would make perfect sense,

02:23:22.379 --> 02:23:25.700
I think, in a time of emergency, for many of

02:23:25.700 --> 02:23:28.360
the reasons that General Sauer pointed out, that

02:23:28.360 --> 02:23:30.520
Congress would want the president to have the

02:23:30.520 --> 02:23:35.100
kind of authority that is imposed when you are

02:23:35.100 --> 02:23:37.299
embargoing things, when you are stopping the

02:23:37.299 --> 02:23:40.579
trade, when you are saying, you know, for emergency

02:23:40.579 --> 02:23:43.020
reasons, we're not letting any of this product

02:23:43.020 --> 02:23:45.360
come in. I mean, sure, that's a big deal, but

02:23:45.360 --> 02:23:48.479
the nature of it makes sense in terms of an emergency.

02:23:48.709 --> 02:23:51.209
I think what you're saying is that the idea that

02:23:51.209 --> 02:23:53.469
the government would use its authority to be

02:23:53.469 --> 02:23:56.829
raising revenues in this situation is a different

02:23:56.829 --> 02:24:01.010
kind of power. Exactly. Is this a statute about

02:24:01.010 --> 02:24:04.250
giving the president control over assets, over

02:24:04.250 --> 02:24:06.629
transactions, over access to banking? And tariffs

02:24:06.629 --> 02:24:08.510
don't do that. You said something about tariffs

02:24:08.510 --> 02:24:12.510
in fact cede control over those sorts of things.

02:24:12.670 --> 02:24:15.010
So they sort of undermine the goals and the purposes

02:24:15.010 --> 02:24:17.459
of this kind of statute. Is that right? Yes,

02:24:17.579 --> 02:24:19.500
that's exactly right. From what you've said,

02:24:21.079 --> 02:24:24.639
it seems, and you said this, that the reason

02:24:24.639 --> 02:24:28.879
for drawing a distinction between tariffs and

02:24:28.879 --> 02:24:33.579
an embargo is the suspicion that tariffs will

02:24:33.579 --> 02:24:37.379
be used to raise money and therefore to circumvent

02:24:37.379 --> 02:24:41.379
Congress's power to control taxes. So it's a

02:24:41.379 --> 02:24:45.299
question of the risk that's involved. Am I right?

02:24:45.600 --> 02:24:48.079
That's what it boils down to. Yes. Well, and

02:24:48.079 --> 02:24:50.040
it's a question of understanding what Congress

02:24:50.040 --> 02:24:52.940
would have thought, what powers Congress would

02:24:52.940 --> 02:24:55.500
have thought it was conferring. Would Congress

02:24:55.500 --> 02:24:58.440
have understood the phrase regulated? Well, I

02:24:58.440 --> 02:25:00.420
mean, the question is why would Congress say

02:25:00.420 --> 02:25:02.979
you can impose a quota, you can impose a ban,

02:25:03.459 --> 02:25:06.360
but you can't impose a tariff. And your answer,

02:25:06.440 --> 02:25:09.319
I gather, is because when a tariff is imposed,

02:25:09.600 --> 02:25:13.440
we're suspect about what's going on. We're suspicious

02:25:13.440 --> 02:25:15.319
about what's going on. We think that what the

02:25:15.319 --> 02:25:17.799
government is trying, what the executive is trying

02:25:17.799 --> 02:25:22.020
to do is to raise revenue, and that's our business,

02:25:22.340 --> 02:25:26.819
right? That's what it has to be. Yes, and we

02:25:26.819 --> 02:25:28.760
know that every other time that Congress has

02:25:28.760 --> 02:25:30.139
authorized the president. Well, that's a, you

02:25:30.139 --> 02:25:31.559
know, you're getting into a different argument.

02:25:31.659 --> 02:25:34.299
Then, would you say the same thing if the measure

02:25:34.299 --> 02:25:39.620
is really about an emergency, an undisputed emergency

02:25:39.620 --> 02:25:43.770
and a really dire emergency? There, would you

02:25:43.770 --> 02:25:48.709
have the same suspicion? Yes, absolutely. And

02:25:48.709 --> 02:25:52.049
again, I'll refer back to Justice Jackson's concurrence

02:25:52.049 --> 02:25:54.530
in Youngstown that emergency powers tend to breed

02:25:54.530 --> 02:25:58.489
emergencies. Look, Biden versus Nebraska, I think,

02:25:58.809 --> 02:26:00.950
says very clearly - I really don't think you're

02:26:00.950 --> 02:26:02.809
answering the question. The question is, would

02:26:02.809 --> 02:26:06.069
you have the same suspicion when it is perfectly

02:26:06.069 --> 02:26:09.620
apparent from context that what - the president

02:26:09.620 --> 02:26:14.280
is trying to do is to achieve a goal other than

02:26:14.280 --> 02:26:18.040
the raising of money. I think what I'm trying

02:26:18.040 --> 02:26:21.659
to say is that you have to read the statute the

02:26:21.659 --> 02:26:23.340
way that Congress would have understood it when

02:26:23.340 --> 02:26:26.479
it was enacted, not how it is used in any particular

02:26:26.479 --> 02:26:28.940
case. It may be used for very good reasons in

02:26:28.940 --> 02:26:31.059
a particular case, but the question is would

02:26:31.059 --> 02:26:33.430
Congress have understood itself to be ceding

02:26:33.430 --> 02:26:36.110
this power with no limits, unlike every other

02:26:36.110 --> 02:26:38.049
tariffing statute with no limits. All right,

02:26:38.350 --> 02:26:41.010
I know that point. Let me ask you an unrelated

02:26:41.010 --> 02:26:45.069
question. Mr. Katyal listed some of the things

02:26:45.069 --> 02:26:51.389
that presidents have done under IEPA, such as

02:26:51.389 --> 02:27:03.030
screening imports. Do any of the other verbs

02:27:03.030 --> 02:27:07.709
in IEPA talk about screening? Could screening

02:27:07.709 --> 02:27:11.129
of imports be done under any of the other verbs

02:27:11.129 --> 02:27:14.450
in IEPA? I think maybe, but it would have been...

02:27:14.450 --> 02:27:17.989
Which one? Prevent. And so I think the question

02:27:17.989 --> 02:27:20.709
would be... Screening is preventing? Well, I

02:27:20.709 --> 02:27:22.450
think it depends what you're screening for, but

02:27:22.450 --> 02:27:27.250
if you were... Okay, how about imposing domestic

02:27:27.250 --> 02:27:30.229
requirements that promote... that are needed

02:27:30.229 --> 02:27:35.770
to safeguard domestic safety. Any other provision

02:27:35.770 --> 02:27:39.090
besides regulate? Any other verb besides regulate

02:27:39.090 --> 02:27:41.010
that would... Well, again, I think if we're talking

02:27:41.010 --> 02:27:44.610
about... potentially blocking some property from

02:27:44.610 --> 02:27:47.129
coming into this country because of safety concern,

02:27:47.790 --> 02:27:49.389
it might be that prevent would have gotten you

02:27:49.389 --> 02:27:52.209
there. What I think Regulate does is it clarifies

02:27:52.209 --> 02:27:56.909
and amplifies that it can be nuanced in that

02:27:56.909 --> 02:27:59.530
way. It can say we will let this come in if it

02:27:59.530 --> 02:28:01.389
has certain safety requirements, if certain features

02:28:01.389 --> 02:28:04.290
have been disabled, something like that. So I

02:28:04.290 --> 02:28:07.750
think Regulate harmonizes with prevent, investigate

02:28:07.750 --> 02:28:11.120
during the pendency. block during the pendency

02:28:11.120 --> 02:28:14.020
of an investigation, those sorts of... On the

02:28:14.020 --> 02:28:17.040
context point, the context of this statute, what

02:28:17.040 --> 02:28:19.979
Congress would have understood, it's an emergency

02:28:19.979 --> 02:28:24.799
statute. And presumably Congress wants to give

02:28:24.799 --> 02:28:27.760
the President tools to respond to the emergency

02:28:27.760 --> 02:28:33.600
in an appropriate way. And it seems odd to imagine

02:28:33.600 --> 02:28:36.959
a meeting in the Oval Office where the President's

02:28:36.959 --> 02:28:39.520
told Well, we have a problem with, I won't name

02:28:39.520 --> 02:28:45.979
a country, but country X, and you can stop all

02:28:45.979 --> 02:28:49.559
trade with that country. I'm not sure that's

02:28:49.559 --> 02:28:52.920
a wise policy to give that much, but it's there,

02:28:53.040 --> 02:28:57.159
right? You agree it's in this statute. But then

02:28:57.159 --> 02:28:58.659
the president says, well, that's too extreme.

02:28:58.700 --> 02:29:01.239
I want to calibrate my response to deal with

02:29:01.239 --> 02:29:05.600
this and maybe a tariff of some kind. Like, oh,

02:29:05.600 --> 02:29:08.719
you can't do that. So you're forcing the president

02:29:08.719 --> 02:29:12.920
to respond to an emergency. And, you know, Justice

02:29:12.920 --> 02:29:15.600
Alito has raised the point about, you know, a

02:29:15.600 --> 02:29:20.239
real emergency. And you're taking away the president's

02:29:20.239 --> 02:29:23.059
suite of tools when the one is much more extreme

02:29:23.059 --> 02:29:25.719
that is authorized. That just seems a bit unusual.

02:29:27.540 --> 02:29:30.459
You know, think about India right now, the terrifying

02:29:30.459 --> 02:29:34.180
India, right? That's designed to help settle

02:29:34.180 --> 02:29:37.520
the Russia -Ukraine war. As I understand it,

02:29:37.899 --> 02:29:41.280
don't pretend to be an expert. But if that's

02:29:41.280 --> 02:29:45.719
gone, that's a tool that's designed to talk about

02:29:45.719 --> 02:29:48.120
foreign facing the most serious crisis in the

02:29:48.120 --> 02:29:52.420
world. And that's out the window. So I just think.

02:29:53.059 --> 02:29:55.700
It's just contextually emergency. It's just a

02:29:55.700 --> 02:29:58.680
bit unusual to read it that way. I take your

02:29:58.680 --> 02:30:00.620
response, taxation's different, and you've got

02:30:00.620 --> 02:30:02.780
to stick with that line. No, and I don't think

02:30:02.780 --> 02:30:05.459
it's just that. I mean, I do think it's that.

02:30:05.840 --> 02:30:09.180
But it's also that there are a range of tools

02:30:09.180 --> 02:30:11.540
that are more calibrated that the president can

02:30:11.540 --> 02:30:13.159
do. It doesn't have to be a complete embargo.

02:30:13.559 --> 02:30:16.440
It could be limits on particular kinds of products.

02:30:16.559 --> 02:30:19.340
It could be quantity. I get it. But in the history

02:30:19.340 --> 02:30:23.719
of trade. trade efforts to respond and push back,

02:30:24.280 --> 02:30:26.120
you've taken one away. Well, and the President

02:30:26.120 --> 02:30:27.860
and there are many other statutes that might

02:30:27.860 --> 02:30:30.399
apply depending on the exact circumstances, 201,

02:30:30.860 --> 02:30:33.559
301, 232. Council, I think what we're forgetting

02:30:33.559 --> 02:30:37.700
here is a very fundamental point, which is the

02:30:37.700 --> 02:30:41.440
Constitution is structured so that if I'm going

02:30:41.440 --> 02:30:44.479
to be asked to pay for something as a citizen,

02:30:44.889 --> 02:30:48.049
that it's through a bill that is generated through

02:30:48.049 --> 02:30:51.090
Congress and the president has the power to veto

02:30:51.090 --> 02:30:54.850
it or not. But I'm not going to be taxed unless

02:30:54.850 --> 02:30:58.690
both houses, the executive and the legislature,

02:30:58.909 --> 02:31:01.250
have made that choice, correct? That's exactly

02:31:01.250 --> 02:31:04.729
right. And so there is something, it's not just

02:31:04.729 --> 02:31:08.709
the taxing power, qua taxing power. The question

02:31:08.709 --> 02:31:13.459
is, do we permit the president to use the taxing

02:31:13.459 --> 02:31:18.559
power to affect his personal choices of what

02:31:18.559 --> 02:31:22.120
is good policy for me to pay for. That's exactly

02:31:22.120 --> 02:31:24.940
right. The question is who decides. Who decides

02:31:24.940 --> 02:31:29.559
under what circumstances. Now, with respect to

02:31:29.559 --> 02:31:33.979
this, I'm not even going to the pretext argument,

02:31:34.100 --> 02:31:37.729
okay? But the president threatened to impose

02:31:37.729 --> 02:31:42.690
a 10 % tax on Canada for an ad it ran on tariffs

02:31:42.690 --> 02:31:46.209
during the World Series. He imposed a 40 % tax

02:31:46.209 --> 02:31:50.889
on Brazil because its Supreme Court permitted

02:31:50.889 --> 02:31:54.250
the persecution of one of its former presidents

02:31:54.250 --> 02:31:58.809
for criminal activity. The point is, those may

02:31:58.809 --> 02:32:04.750
be good policies, but does a statute that gives

02:32:04.750 --> 02:32:09.719
without limit the power to a president to impose

02:32:09.719 --> 02:32:13.479
this kind of tax, does it require more than the

02:32:13.479 --> 02:32:16.620
word regulate? Exactly. That's your point. Yes.

02:32:17.819 --> 02:32:22.299
Thank you, counsel. Did Mr. Katyal say anything

02:32:22.299 --> 02:32:24.860
this morning with which you disagree? No, I think

02:32:24.860 --> 02:32:27.579
we cleared up any, maybe, potential disagreement

02:32:27.579 --> 02:32:29.559
about licensing fees, but I think we all agree

02:32:29.559 --> 02:32:33.979
on that. Okay. Justice Thomas? Yes. Anything

02:32:33.979 --> 02:32:39.940
further? Just Kate? So I just want to follow

02:32:39.940 --> 02:32:42.260
up on Justice Sotomayor's question at the end

02:32:42.260 --> 02:32:47.000
of a long morning, afternoon. It does seem to

02:32:47.000 --> 02:32:50.139
me, and tell me if I'm wrong, that a really key

02:32:50.139 --> 02:32:53.200
part of the context here, if not the dispositive

02:32:53.200 --> 02:32:56.520
one for you, is the constitutional assignment

02:32:56.520 --> 02:33:00.620
of the taxing power to Congress, the power to

02:33:00.620 --> 02:33:03.299
reach into the pockets of the American people.

02:33:03.360 --> 02:33:06.399
is just different, and it's been different since

02:33:06.399 --> 02:33:09.739
the founding and the Navigation Acts that were

02:33:09.739 --> 02:33:12.059
part of the spark of the American Revolution,

02:33:12.840 --> 02:33:15.979
where Parliament asserted the power to tax to

02:33:15.979 --> 02:33:18.719
regulate commerce. Some of those were revenue

02:33:18.719 --> 02:33:20.719
-raising, some of them didn't raise a lot of

02:33:20.719 --> 02:33:25.760
revenue. We had a lot of pirates in America at

02:33:25.760 --> 02:33:30.340
the time. And Americans thought even Parliament

02:33:30.340 --> 02:33:33.079
couldn't do that, that that had to be done locally.

02:33:33.159 --> 02:33:35.959
through our elected representatives. Isn't that

02:33:35.959 --> 02:33:39.340
really the major questions on delegation, whatever

02:33:39.340 --> 02:33:42.059
you want to describe it, isn't that what's really

02:33:42.059 --> 02:33:44.200
animating your argument today? I think it's a

02:33:44.200 --> 02:33:45.760
huge piece of what's animating our argument.

02:33:45.840 --> 02:33:52.120
Thank you. Ms. Cavanaugh. Mr. Jackson. Can I

02:33:52.120 --> 02:33:55.799
just invite you briefly to address your kind

02:33:55.799 --> 02:33:59.879
of second tier arguments? Assuming that the president

02:33:59.879 --> 02:34:04.440
can impose these sorts of tariffs. Why do you

02:34:04.440 --> 02:34:08.100
think, for example, that the trafficking tariff

02:34:08.100 --> 02:34:10.899
here does not deal with the drug trafficking

02:34:10.899 --> 02:34:14.760
emergency for the purpose of this analysis? So

02:34:14.760 --> 02:34:16.940
it doesn't deal with it because it's not a sanction

02:34:16.940 --> 02:34:22.620
imposed against traffickers. If you think of

02:34:22.620 --> 02:34:25.399
it as a sanction, it is a sanction imposed against

02:34:25.629 --> 02:34:27.989
people importing lawful goods in the home. Doesn't

02:34:27.989 --> 02:34:30.389
that indirect, that happens all the time, right?

02:34:30.530 --> 02:34:33.030
I mean, all the other authorities indirectly

02:34:33.030 --> 02:34:36.770
provide leverage on countries in this way. I

02:34:36.770 --> 02:34:39.850
don't think so. I think that they are, uh, the,

02:34:39.850 --> 02:34:44.090
the history of, of IEPA and even of TWA is imposing

02:34:44.090 --> 02:34:46.549
sanctions directly on the wrongdoers. These are

02:34:46.549 --> 02:34:49.809
statutes about providing sanction authority against,

02:34:49.850 --> 02:34:53.110
against international actors whose behavior we

02:34:53.110 --> 02:34:55.209
want to change. And that's not what tariffs are.

02:34:55.229 --> 02:34:59.270
Alright, thank you. Thank you, counsel. Rebuttal?

02:34:59.489 --> 02:35:02.389
General Sauer? Thank you, Mr. Chief Justice.

02:35:02.510 --> 02:35:04.569
Just three points. One, an interpretive point.

02:35:05.000 --> 02:35:07.520
The statutory language here is regulate importation,

02:35:07.620 --> 02:35:09.979
and again, by means of instruments, licenses,

02:35:10.139 --> 02:35:13.899
or otherwise. Their argument is that that phrase

02:35:13.899 --> 02:35:16.559
carries with it a whole host of unenumerated

02:35:16.559 --> 02:35:19.459
forms of regulation, including quotas, licenses,

02:35:19.659 --> 02:35:22.399
licenses apparently that come with fees, as long

02:35:22.399 --> 02:35:25.020
as they're sort of profit neutral fees, environmental

02:35:25.020 --> 02:35:27.399
restrictions, qualitative restrictions, reports,

02:35:27.459 --> 02:35:29.500
and so forth. It's just that the one form of

02:35:29.500 --> 02:35:32.299
regulation that they would not include is tariff

02:35:32.299 --> 02:35:34.319
regulation, which of course is the quintessential

02:35:34.350 --> 02:35:37.129
most historically tested method of regulating

02:35:37.129 --> 02:35:40.469
imports. And so that additional phrase about

02:35:40.469 --> 02:35:43.750
by means of instruments, licenses, or otherwise

02:35:43.750 --> 02:35:46.370
really sort of reinforces the plain meaning,

02:35:46.409 --> 02:35:48.969
the ordinary natural meaning of regulated importation

02:35:48.969 --> 02:35:50.930
here. So when it comes just to plain text of

02:35:50.930 --> 02:35:54.530
the statute, their argument is a donut type argument.

02:35:54.549 --> 02:35:56.450
And it's not an argument that does justice to

02:35:56.450 --> 02:35:59.409
the statutes of plain text. On the non -delegation

02:35:59.409 --> 02:36:01.870
point, Justice Gorsuch, you alluded to the founding

02:36:01.870 --> 02:36:03.840
of our delegations of the Indian Commerce And

02:36:03.840 --> 02:36:07.260
I just remind the court that in July of 1790,

02:36:07.659 --> 02:36:09.959
Congress passed a statute that essentially delegated

02:36:09.959 --> 02:36:12.520
to President Washington essentially the entire

02:36:12.520 --> 02:36:14.780
scope of the Indian Congress power. He said,

02:36:14.860 --> 02:36:16.920
you can do. Commerce with Indians, if you have

02:36:16.920 --> 02:36:20.360
a license that you had to pay a fee for. And

02:36:20.360 --> 02:36:22.860
that will be subject to such rules and regulations

02:36:22.860 --> 02:36:24.959
as the president makes with no further guidance.

02:36:25.379 --> 02:36:27.540
So when it comes to this foreign facing there,

02:36:27.639 --> 02:36:29.360
it's obviously analogous because the Indian tribe

02:36:29.360 --> 02:36:32.059
is not foreign sovereigns. But this foreign facing

02:36:32.059 --> 02:36:34.940
situation, we have a very sort of deep and profound

02:36:34.940 --> 02:36:38.319
historical pedigree who brought delegations of.

02:36:39.270 --> 02:36:42.010
the regulation of commerce, the foreign commerce

02:36:42.010 --> 02:36:43.870
power, in that case, the Indian commerce power.

02:36:44.209 --> 02:36:46.690
And that ties, I think, to what I take to be

02:36:46.690 --> 02:36:49.389
the main theme of the arguments on the other

02:36:49.389 --> 02:36:51.209
side. And I think that Mr. Catchell started by

02:36:51.209 --> 02:36:54.229
saying, tariffs are taxes. And I want to complete

02:36:54.229 --> 02:36:55.729
the answer I think I was giving to the Chief

02:36:55.729 --> 02:36:58.010
Justice when I got interrupted, is if you look

02:36:58.010 --> 02:37:03.319
at these tariffs, these policies, It is clear

02:37:03.319 --> 02:37:06.239
that these policies are most effective if nobody

02:37:06.239 --> 02:37:08.879
ever pays the tariff. If it never raises a dime

02:37:08.879 --> 02:37:12.379
of revenue, these are the most effective use

02:37:12.379 --> 02:37:14.579
of this particular policy. And I said there's

02:37:14.579 --> 02:37:16.860
two buckets there. One is, first of all, when

02:37:16.860 --> 02:37:19.479
it comes to the trade deficit emergency, if no

02:37:19.479 --> 02:37:21.280
one ever pays the tariff but instead they direct

02:37:21.280 --> 02:37:24.139
their consumption domestically and spur the creation

02:37:24.139 --> 02:37:27.940
of the rebuilding of our hollowed -out manufacturing

02:37:27.940 --> 02:37:30.799
base, that directly addresses the crisis. It's

02:37:30.799 --> 02:37:33.120
more effective. If no one ever pays the tariff,

02:37:33.219 --> 02:37:35.420
that's the point of it, really. That's a fundamental

02:37:35.420 --> 02:37:37.219
point of it. And that's one piece of these. And

02:37:37.219 --> 02:37:39.579
then as to both of them, as to both of the declared

02:37:39.579 --> 02:37:43.360
emergencies, the tariffs are an incentive, a

02:37:43.360 --> 02:37:45.399
pressure point, leverage, bargaining chip, as

02:37:45.399 --> 02:37:48.059
the court said in Dames and Moore, to get countries

02:37:48.059 --> 02:37:50.639
to change their behavior to address the foreign

02:37:50.639 --> 02:37:53.120
arising emergencies. So if you look, for example,

02:37:53.200 --> 02:37:55.399
at, to take a historical example of last week's

02:37:55.399 --> 02:37:57.819
trade deal with China, it unlocked access to

02:37:57.819 --> 02:37:59.979
rare earth minerals, which of course have a critical

02:37:59.979 --> 02:38:02.010
national security asset respect to them, and

02:38:02.010 --> 02:38:04.809
it got China for the very first time to change

02:38:04.809 --> 02:38:07.790
its policy with respect to fentanyl precursors,

02:38:08.090 --> 02:38:11.870
which is a crucial piece of that. those tariffs,

02:38:12.110 --> 02:38:13.850
if no one ever collects them, but the threat

02:38:13.850 --> 02:38:16.510
of imposing those tariffs gets China and our

02:38:16.510 --> 02:38:18.729
other trading partners across the world to change

02:38:18.729 --> 02:38:20.909
their behaviors in a way that addresses this,

02:38:21.290 --> 02:38:23.250
then that's the most effective use of the policy.

02:38:23.590 --> 02:38:26.629
So they're clearly regulatory tariffs, not taxes.

02:38:28.350 --> 02:38:30.370
They're not an exercise of the power to tax.

02:38:30.569 --> 02:38:33.049
They're the exercise of the power to regulate

02:38:33.049 --> 02:38:34.930
foreign commerce. And that's why the statute

02:38:34.930 --> 02:38:37.309
says regulate. It doesn't say tax. It says regulate.

02:38:38.010 --> 02:38:40.270
And for that reason, we are squarely within the

02:38:40.200 --> 02:38:42.319
tradition that I was talking about before of

02:38:42.319 --> 02:38:45.540
very broad, historically very broad, delegations

02:38:45.540 --> 02:38:47.659
of the power to regulate foreign commerce to

02:38:47.659 --> 02:38:50.059
the president because he has inherent authority

02:38:50.059 --> 02:38:53.700
in the area of foreign affairs, although not

02:38:53.700 --> 02:38:55.280
that. It has to be delegated to him, otherwise

02:38:55.280 --> 02:38:57.780
the delegation would be superfluous. And for

02:38:57.780 --> 02:38:59.520
all those reasons, we ask the court to reverse

02:38:59.520 --> 02:39:01.559
both the decisions below. Thank you, counsel.

02:39:01.739 --> 02:39:02.600
The case is submitted.