We will hear argument this morning in case 24
-1287, learning resources versus Trump, and the
consolidated case. General Sauer. Mr. Chief Justice,
and may it please the Court. On April 2nd, President
Trump determined that our exploding trade deficits
have brought us to the brink of an economic and
national security catastrophe. He further pronounced
that the traffic of fentanyl and other opioids
into our country has created a public health
crisis, taking hundreds of thousands of American
lives. President Trump has declared that these
emergencies are country -killing and not sustainable,
that they threaten the bedrock of our national
and economic security, and that fixing them will
make America a strong, financially viable and
respected country again. Due to IEPA tariffs,
President Trump has negotiated agreements worth
trillions of dollars with major trading partners,
including most recently China. Unwinding those
agreements, he warns, would expose us to ruthless
trade retaliation by far more aggressive countries
and drive America from strength to failure with
ruinous economic and national security consequences.
In games and more against Reagan, this court
held that IEPA's sweeping and unqualified language
grants the president's actions the strongest
presumption of validity and the widest latitude
of judicial interpretation. Yet plaintiffs argue
that tariffs, IEPA's least blunt and most nimble
tool, are virtually the only tool that Congress
did not grant the president to deal with foreign
emergencies. That is wrong. The phrase regulate
importation plainly embraces tariffs, which are
among the most traditional and direct methods
of regulating importation. And plaintiffs can
see that IEPA authorizes quotas and other tariff
equivalents. The major questions doctrine does
not apply here. IEPA confers major powers to
address major problems on the president, who
is perhaps the most major actor in the realm
of foreign affairs. And the non -delegation doctrine
casts no doubt on IEPA because Congress may assign
the president broad authority regarding the conduct
of foreign affairs where he enjoys his own inherent
Article II powers. I welcome the court's questions.
Would you spend a few minutes on why exactly
the major question doctrine doesn't apply to
the president in this case? Yes, Justice Thomas,
and I may make two or three points on that front.
First of all, though the major questions doctrine
may apply to the president in other contexts,
specifically in the foreign affairs context where
he has his own inherent article to authority,
it's a particularly poor fit to apply the major
questions doctrine, and that's for at least two
reasons. First of all, just as a matter of kind
of common sense interpretation, one would expect
Congress to confer major powers on the President
to address major, you know, sort of foreign –
international crises, so to speak, in foreign
arising emergencies, that that's just sort of
a natural common sense thing you expect Congress
to do. And in fact, you know, Justice Jackson,
in his Youngstown opinion, addressed this very
situation in pages 652 and 653, when he says,
this is the system within our – or this is the
procedure within our constitutional system that
we have developed to strike the balance. You
know, what Dames and Moore described as the never
-ending tension – between the need for the executive
to address, have a robust power to address emergencies
and to subject to checks and balances, what our
constitution system has devised to address that
particular problem, that never -ending tension,
is the system where Congress confers broad and
necessary powers in advance and subjects them
to ongoing political oversight, which is exactly
what you see in IEPA. So that's one reason. One
reason, just as a matter of common sense interpretation,
you would expect Congress to grant major powers
to the president who has his own broad range
of major authority. the article, inherent article
to authority in this context. And that is butchers
by the second point. Can I interrupt you, General,
there? And I know that you have a second question,
and I want to let you get to that. But just on
that first reason, it seemed to depend a lot
on the president's inherent Article II powers.
And I'm wondering what exactly, which powers
you're speaking of there. Because tariffs, one
would naturally think, are the power to impose
taxes, the power to regulate foreign commerce.
These are not things that are thought of as Article
II powers. They are quintessential Article I
powers. So what kind of Article II powers are
you relying on? when you gave the answer about
major questions to Justice Thomas. I would refer
to what the court said, for example, in Eagan
Department of Navy against Eagan. That's a generally
accepted view that the president has broad authority
in the foreign affairs realm. There's been debates
about exactly how far it goes and how to draw
the boundary between the president and Congress.
But Eagan, Garamendi, other cases, Curtis Wright,
the court has recognized the president has broad
inherent authority to address foreign situations,
foreign affairs, foreign policy, including foreign
arising emergencies. Now we don't that he has
at least in peacetime inherent tariffing authority,
what we have here is two layers. There's the
layer, the bedrock of the president's inherent
Article II powers, and layered on top of that
is a sweeping delegation of authority from Congress.
When you put those two things together, Congress
is saying you have inherent powers to address
international emergencies, and we're conferring
you on you the tools, including Article I tools,
like, for example, the power to regulate foreign
commerce. I want to make a very important distinction
here. We don't contend that what's being exercised
here is the power to tax. It's the power to regulate
foreign commerce. These are regulatory tariffs.
They are not revenue -raising tariffs. The fact
that they raise revenue is only incidental. The
tariffs would be most effective, so to speak,
if no person ever paid them, if they'd achieved
their goals. three times, which surprises me
a little because the court in Dames and Moore
went out of its way to say that it was issuing
a very narrow decision that pretty much expected
to apply only in this case. Just a few quotes.
It said, decisions in this area have been rare,
episodic, and afford little precedential value
for subsequent cases. Again, we lay down no general
guidelines covering other situations not involved
here and confine the opinion only to the very
questions necessary to decision of this case.
And it ended the opinion. It said, finally, we
reemphasize the narrowness of our decision. Now,
this issue in Dames and Moore was a different
provision of IEBA, not at issue here, and certainly
did not concern tariffs. So I don't quite understand
how you can get as much out of Dames and Moore
as you're trying to get. Maybe I could put it
this way. You don't dispute that Dames and Moore
is, as you state, a narrow opinion. However,
it addressed certain principles that we think
are equally applicable here. For example, the
interpretive principle. Dames and Moore held,
and again, it was the power to nullify and void,
not the power to regulate. But it's in the very
same sentence, in the very same statute. And
the court quoted the First Circuit opinion and
said, look, this is sweeping unqualified language,
which it didn't disagree with. And then it said,
this particular provision where Congress has
given these broad verbs, I mean, regulate is
a capacious verb, admittedly. So are nullify,
so are void. So are, frankly, all the other verbs
there in the language of IEPA. The way the court
thought about it is we are looking at this through
the lens of Justice Jackson's opinion in Youngstown.
And the court held specifically that these verbs
placed the president in Youngstown's own one.
The court held that he was subject to the widest
latitude of judicial interpretation that he received
the strongest presumption of validity. I just
don't understand this argument. It's not an article.
It's a congressional power, not a presidential
power to tax. And you want to say tariffs are
not taxes, but that's exactly what they are,
degenerating money from American citizens' revenue.
And you say it's incidental to the regulatory
purpose. But I don't see how a quota is equivalent
to revenue raising. A quota sets a limit to what
you can import in, but it doesn't generate revenue.
I don't understand this argument, that it's equivalent
or that foreign powers or even an emergency can
do away with the major questions doctrine. Didn't
we in the Biden case recently say an emergency
can't make clear what's ambiguous? As to that
point, I believe the court has never applied
the major questions doctrine in the foreign policy
context. We have never applied it to foreign
affairs, but this is a tariff. This is a tax.
If I may, it's a foreign facing. regulation of
foreign commerce. That's everything. So Biden
could have declared a national emergency and
global warming and then gotten his student forgiveness
to not be a major questions doctrine? I don't
think he could have gotten student loan forgiveness.
Why? It's global. It's foreign facing. We need
all of these things to to face, to tax fossil
fuel or to do something else? That's all Biden
would have had to do with any of his programs?
Let me put it this way, if I may. Is just declare
some foreign -facing purpose? If I may, maybe
I can articulate it this way. The power to impose
tariffs is a core application of the power to
regulate foreign commerce, which is what the
phrase regulate importation in IEPA naturally
evokes. Not the power to tax. Could you tell
me why it is that when Congress intended to permit
a president to regulate by imposing tariffs,
it's always used tariff and regulate. I have
about 16 laws in the past that when Congress
intended regulate to mean taxing, that it used
taxes simultaneously. But it didn't here. Respectfully,
this court came to the opposite conclusion, if
I may, in Algonquin, where the phrase would not
include duties. Well, we did something in Algonquin.
It was in the duties section, unlike here. It
was paired with questions about decreasing tariffs.
and increasing tariffs. So it's a very different
statute than the one at issue here. But the governing
language, admittedly the references to duties
in section 232A, 232C does not refer to them
and the court didn't refer to 232A at all or
the phrases duties or tariffs as analysis. What
it held was the phrase adjust imports, which
includes a verb that's narrower. But it was in
the context of activities that had to do with
raising and lowering duties. Here, the verbs
that a company regulate have nothing to do with
raising revenues in the form of taxes. And, counsel,
Algonquin wasn't a textualist opinion. Do you
agree with that? In other words, the analysis
that the court was using there was really key
to the legislative history. of that statute,
and it wasn't as though we were doing an interpretation
of the word adjust. I disagree with that. I think
you read the opinion. First it talks about plain
meaning, then it talks about statutory context,
and then it goes on to legislative history. So
it was all three of those. And the conclusion
it came to, it directly addressed and rejected
the argument that the DC Circuit had accepted
in that case, which is that when Congress wants
to delegate the authority to tariff, it uses
a consistently explicit and well -defined approach,
which is to use these magic words, tariff, tax,
imposed, and so forth. No, Congress is not bound
to use that particular formulation when it wants
to confer this power. Let me ask you about the
premise of your argument, which you sort of started
at the beginning, saying that one would expect
for Congress to give the president a broadly
way in this kind of foreign affairs context.
And I guess I'm wondering whether you also don't
have to contend with the actual purpose of AIIPA.
in making this argument because, as I understand
it, that the AIIPA was designed and intended
to limit presidential authority, that Congress
was concerned about how presidents had been using
the authority under the predecessor statute,
TWA, and it's pretty clear that Congress was
trying to constrain the emergency powers of the
president in AIIPA. So it seems a little inconsistent.
to say that we have to interpret a statute that
was designed to constrain presidential authority
consistent with an understanding that Congress
wanted the president to have essentially unlimited
authority. I disagree with that, because what
Congress actually did as - What part do you disagree
with? I'm sorry. Well, I disagree with the notion
that they were trying to constrain the breadth
of the actions the president may take when it
comes to this particularly narrow domain, which
is various regulations of transactions - But
how can you disagree with that? I mean, the history
is what it is. Because they made a series of
changes to AIIPA that relate to the triggering
conditions, so to speak, and the procedures that
apply, but they did not change the language -
Right, but what was the intent? intent of Congress
in changing the language, wasn't it to constrain
presidential authority in this area? To constrain
it in the triggering conditions and the procedures
that apply. The triggering conditions and procedures
that apply are a means to constrain. That is
how they went around about constraining. But
my point is that Congress enacted this legislation
with the intent of preventing the president from
having unlimited powers in this area. And you're
asking us to now interpret that statute consistent
with an understanding that Congress wanted to
allow the president to do pretty much whatever
he wanted in this area. Congress took the language
from Tuia. It enacted the very same language,
and most importantly here, the very same phrase,
regulated importation, in IEPA. And therefore,
the natural inference is Congress did not intend
to change the scope of authority, the powers,
the tools the president can exercise. Did any
president under Tuia, did any president under
Tuia use that language to impose tariffs? Well,
yes. President Nixon's 1971 terms were visibly.
Not a tariff. That wasn't a tariff. It was a
licensing agreement during wartime. It was a
specific thing. A tariff, I'm talking about.
I'm referring to President Nixon's 1971 tariff
study. Oh, I'm sorry. Excuse me. Yes, I thought
you meant Lincoln. Not only that, but then it
was upheld by the Court of Appeals with exclusive
jurisdiction under this very phrase, regular
importation. Can I back you up just a second?
I'm sorry. You're talking so quickly. President
Nixon did not rely on Tuia initially to impose
the tariffs. Is that correct? I understood that
was just a litigating position that he took once
it was challenged. That was not his initial...
I wouldn't put it that way, because he has a
broad invocation. I'm invoking all range of statutes,
something like that, in Proclamation 4074. And
I think the understanding is he didn't want to
kind of spook our allies by invoking the Trading
with the Enemies Act, by specifically invoking
it. But in litigation, it was defended on that
ground. So the Department of Justice defended
it as an exercise of Tuia and did so successfully.
What's the significance of the Nixon example
and precedent here? Because I think figuring
that out. real important to deciding this case
correctly, so. Well, there's one obvious, very
powerful takeaway from it, which is that this
very two -word phrase, regulate importation,
that we say it carries with it the authority
to tariff, impose regulatory tariffs at the border,
forward -facing tariffs at the border, and we
say that's a core application of the phrase regulate
importation, had been interpreted two years before
Congress re -enacted that language in IEPA, had
been interpreted to carry with it. the authority
to impose tariffs. So this court said in Algonquin,
for example, with respect to President Nixon's...
Just back on the Nixon, what was the... scope
of the Nixon tariffs? He imposed a 10 percent
tariff kind of across the board to all our major
trading partners to address a balance of payments
deficit where he was trying to bring all the
major industrial nations to the negotiating table,
which he successfully did, from the imposition
of the tariffs and they negotiated the Smithsonian
agreement in about five months after which he
lifted the tariff. So the tariff there was used
as here in part as leverage to get our trading
partners to the negotiating table and it was
subsequently upheld. by the Federal Circuit,
the CCPA, it's Federal Circuit's predecessor,
that had exclusive jurisdiction over that question
to include the power to tariff. And then two
years later, Congress took that same phrase and
reenacted it in IEPA after carefully studying
the problem of presidential emergency powers
and being deeply concerned about excessive or
abusive exercise of that power. So that whole
sort of process gives sort of strong sort of
confirmation that this phrase, regulated importation,
carries with it the power to tariff. Now, of
course, that's not our legal Our leading argument,
our lead argument on interpretation is... There's
a pedigree, historical pedigree of regulating
imports specifically where the power to tariff
is just the sort of a core application of that,
a quintessential exercise of that power. That
goes back to Gibbons against Ogden and Justice
Torey's treatise and runs all the way through
cases like McGoldrick and Board of Trustees and
more. Well, General Sauer, can I just ask you
a question? Can you point to any other place
in the code or any other time in history where
that phrase together, regulate importation, has
been used to confer tariff imposing authority?
Well, as to regulate importation, that was held
in Tuia. So obviously, and that's - Okay, okay.
So an intermediate appellate court held it in
Tuia, but you just told Justice Kavanaugh that
wasn't your lead argument, that your lead argument
was this long history of the phrase regulate
importation being understood to include tariff
authority. So my question is, has there ever
been another instance in which a statute has
used that language to confer the power? Putting
aside Yeshida. I mean, obviously, the other statutory
example is just imports. The cases we rely on
are cases where, for example, in Gibbons, it's
Ogden and Justice Sorris - But that just shows
the word can be used that way. None of those
cases talked about it as conferring tariff authority.
I understood you to be citing McGoldrick and
Gibbons and those cases just to show that it's
possible to say that regulating commerce includes
the power to tariff. I think our argument goes
a bit further than that as an interpretive matter,
because if you look at that history, the history
of delegation. Could you just answer the Justice's
question? Can you identify any statute that used
that phrase to confer territory? Yeah, the only
two statutes I can identify now are Tuia, as
interpreted in Yoshida, and then closely related,
not regular importation, but adjust imports in
section 232. Well, I think adjust imports is
differently. So the answer is the contested application
in Tuia, and then now in IEPA. And then, of course,
I mean, there's a sort of direct line there.
Yeah, I understand that. OK. More fundamentally,
we rely on historical sources to show there's
this long historical pedigree of broad delegations
of the foreign commerce power, not the power
to tax, that we're not asserting here, delegations
of the foreign commerce power to the president,
going back to Gibbons against Ogden, all the
way through McGoldrick and Board of Trustees,
where this court and founding era sources say
the power to, in other words, the power to tariff
is kind of this natural, you know, as everyone
knows, that includes - I'll just ask you one
other question about the plain text, General
Sauer. You've referred to the other verbs in
IEPA as capacious. Would you really describe
them as capacious? Because to me, things like
nullify and void have definite meanings. I agree
with you that regulate is a broader term, but
those words I think are powerful. They pack a
punch, but I wouldn't describe them as capacious
in the sense that they have a wide range of meaning.
So can you describe what you mean by capacious?
Let me put it this way. You look at all nine
verbs together, and you're looking at a spectrum
of powers from the most sort of negative, nullify,
block, prohibit, void, to the most affirmative,
direct, compel, and then also powers in between
that are more intermediate, regulate, investigate,
and so forth. So the natural common sense inference
from that grammatical structure is the intention
of Congress to sort of cover the Well, possible,
General, possible, except Congress did take out
a whole bunch of verbs. It took out confiscate,
vest, hold, use, administer, liquidate, sell,
which were in the prior statute. And crucially,
what it doesn't have here is anything that refers
to raising revenue. So it has a lot of verbs.
It has a lot of actions that can be taken under
this statute. It just doesn't have the one you
want. I would say the notion that all these other
verbs are not revenue -raising, like block and
prohibit, I think that that argument is unconvincing
for two reasons. One, of course, is that we're
not saying it confers a revenue -raising power.
We're saying it confers a regulatory power. And
that's a crucial distinction. But also... Yes,
but if I can just stop you there. Regulatory
power. I mean, yes, it says regulate. But broaden
out Justice Barrett's question. Is there any
place that you can find in the entire code where
regulate used just as regulate includes taxing
power? We don't assert that. We say it includes
terrifying power. when it's combined with importation.
And that's just the most natural... Right, because
the natural understanding of regulate, even though
in fact we can regulate through taxes, but when
the code uses regulate, we don't typically understand
it to refer to duties or taxes or tariffs or
anything of the kind. And then if you look at
the flip side of this, and you look at all the
tariff statutes that Congress has passed... I
mean, they use language about revenue raising,
tariffs and duties and taxes, all the language
that does not appear in the statute you rely
on. Start with the grammatical structure of the
statute, then refer to the other statutes. Regulate
importation. You put those two words in combination.
The inference from that is, you know, the founders
discussed with this sort of like, you know, as
everyone knows, attitude, regulate importation.
One of the most natural applications of that
is the power to tariff. So when Congress confers
the power to regulate imports, it is naturally
conferring the power to tariff, which it has
delegated to the executive branch, you know,
again and again and again going back and forth.
I'm sorry, counsel. It doesn't say regulate tariffs.
It says regulate importations and exportations.
You agree that they can't put tariffs, taxes
on exportations? From the state, yes. All right.
So why should we think that it's natural then
to think that regulate importation includes taxing
importations? Because that is how... In the conjunctive,
importations and exportations, if they can't
do it with respect to exportations, why are we
permitting them to do it with respect to importations?
Because as this Court has recognized, going back
to gibbons against Ogden and going through McGoldrick
and Board of Trustees, when you're regulating
imports, tariffing is a core application of that.
So in other words, if you're saying go regulate
trading and securities, then you come with a
tariffing competition. So why is it that Congress
has always used regulate and tax together in
the Code? Are you telling us that with respect
to its use of regulate in other statutes, the
taxing reference is superfluous. They didn't
need to do that. I'm not sure what other statutes
you use regulate and tax together, but this statute
has a specific historical pedigree going back
to its enactment during World War I in 1917,
where the phrase regulate importation is evoking
an inherent power to tariff that became established
in the 19th century in cases like E .O. Hamilton
against Dillon and so forth. And that history
is, I think, set forth in Professor Banzai's
amicus brief. Some time ago, you dismissed the
applicability of the major questions doctrine,
and I want you to explain that a little bit more.
I mean, it seems that it might be directly applicable.
You have a claim source, an IEPA, that had never
before been used to justify tariffs. No one has
argued that it does until this particular case.
Congress uses tariffs in other provisions, but
but not here, and yet, and correct me on this
if I'm not right about it, the justification
is being used for a power to impose tariffs on
any product from any country in any amount for
any length of time. That seems like I'm not suggesting
it's not there, but it does seem like that's
major authority and the basis for the claim seems
to be a misfit. So why doesn't it apply again?
Well, we agree that it's a major power, but it's
in the context of a statute that is explicitly
conferring major powers, that the point of the
statute is to confer major powers to address
major questions, which are emergency, so it would
be unusual to say, look at the statute and say,
we're not going to find a major power here. Well,
but the exercise of the power is to impose tariffs,
right? And the statute doesn't use the word tariffs.
But it uses the word regular importation. Historically,
a core central application of that, a big piece
of that, has always been to tariff. If you had
asked the founders, how do you regulate imports,
they would say, of course, we tariff. That's
what we do. So it'd be very unusual to say, we're
giving you power to regulate importation and
say, but you can't impose regulatory tariffs.
That'd be almost a contradiction. And all the
historical sources we cite in our brief relate
to that particular historical pedigree. And as
I was referring to earlier, there's a specific
pedigree of regulated importation here in the
specific context of the president's Polk and
Lincoln and President McKinley asserting the
authority to impose tariffs in wartime that was
then codified in Tuia, and then recodified for
peacetime in Tuia in 1933, and then carried over
into IEPA. So there's that as well. But more
importantly, if you look at the sort of triggering
conditions that members of this court have identified
for the major questions doctrine, there's a series
of them, and we think all of them don't apply
here. For example, the notion that the power
is unheralded. You refer to the fact that IEPA
has never been asserted to invoke tariffs, but
of course, The immediately predecessor statute,
the pairs that President Nixon imposed on that
were upheld under this very language. So this,
I would say this is, and it was recodified two
years later. So this is kind of the opposite
of unheralded power. It's also heralded because
there's this long -standing delegation, a tradition
of very broad delegations of the foreign commerce
power going back to the founding, going back
to... Well, the foreign commerce part, but I
mean, and I think this is a question for the
other side as well. It's two -facing. Yes, of
course, there are dealings with foreign powers.
The vehicle is imposition of taxes on Americans,
and that has always been the core power of Congress.
So to have the President's foreign affairs power
trump that basic power for Congress seems to
me to kind of at least neutralize between the
two powers, the executive power and the legislative
power. Let me say two things in response to that.
First, the notion that the taxes are all borne
by Americans and are not borne by foreign producers
whose goods are imported is empirically, there's
no basis for that in the record. It's actually
a mixed... Well, who pays the tariffs? If a tariff
is imposed on automobiles, who pays them? Typically,
regardless of who the importer of record is,
there'd be a contract that would go along the
sort of line of transfer that would allocate
the tariff, and there'd be different... Sometimes
the foreign producer would pay them. Sometimes
the importer would bear the cost. The importer
could be an American, could be a foreign company.
A lot of times it's a wholly owned American subsidiary
of a foreign corporation. So it gets allocated.
The empirical estimates range from like 30 %
to 80 % of like how much is borne by Americans.
I mean, it's been suggested that the tariffs
are responsible for a significant reduction in
our deficit. I would say that's raising revenue
domestically. There certainly is an incidental
and collateral effect to the tariffs that they
do raise revenue, but it's a very important...
that they are regulatory tariffs, not revenue
raising tariffs. And the way you can see this,
I think, if you look at this policy, this policy
is by far the most effective if nobody ever pays
the tariffs. And I say two policies, right? So
if you look at the trade deficit emergency, if
nobody ever pays the tariffs and instead Americans
direct their consumption towards American producers
and stimulate the rebuilding of our hollowed
out manufacturing base, then the policy is by
far the most effective. So a tariff, a regulatory
tariff that - So why not? Why not? do what the
statute permits, bar importation of products
altogether. That would be the most effective
way to do it. You follow the statute. The statute
says the President can do that. What it doesn't
say is the President can raise revenue. What
it says is he can regulate importation and go
about hundreds of years the way you regulate
it. Regulate it by quotas, causing it. subjecting
some countries and not others to importation
bans has a lot of verbs, but none of them include
generating revenue as a side effect or directly.
Let me address that verb point, if I may, because
think about the canonical example, a statute
that refers to a list of swords, knives, daggers,
dirks, and pikes. There you look at that list
of things and you say, aha, those are all weapons,
therefore a pike is a spear, not a fish, in that
particular context. Now look at this list of
verbs, block, prohibit, compel, direct, and so
forth. You don't look at that naturally as an
ordinary reader and say, oh, look, they're all
not revenue raising. What you say is, they're
all very broad. powerful, you know, actions that
you can take. General, the verbs that are in
the statute are actually doing something. I mean,
they're in the statute for a reason, and as I
understand it, Congress actually explained to
us in its Senate report and House report when
it enacted the 1941 amendments to Tuia, what
it was doing, it said that what we are doing
is authorizing the president in the Senate report,
quote, to control or freeze property transactions
where a foreign interest is involved. There's
similar language about controlling, freezing
control in the House report. So I appreciate
that generally you can look at these words and
you can imagine that they mean certain things,
but here we have evidence. that Congress was
actually trying to do a particular thing with
respect to the authority that it was presenting
to the President, and that thing was not raising
revenue. I think that the powers that Congress
was conferring on the President are best understood
through the plain text of the statutes, which
includes regulating... No, I know, but some of
us care about the legislative history, and so
the plain text of the statute has certain verbs
in it. It also has regulate commerce, as you
say, and... When I look at the legislative history,
it appears as though Congress was trying to give
the president the authority to, quote, control
or freeze property transactions where foreign
interest is involved. And in the TWA context,
that makes perfect sense because we're talking
about a wartime dynamic. And what is happening
is the president needs the authority to prevent
trading with the enemy in the midst of a war.
And that seems to be the focus of this statute.
So I guess I'm concerned about just sort of taking
a particular word here and there and saying that
the general view of it might include raising
revenue when in fact it looks as though the aim
of this was really to give the president a certain
kind of authority. to freeze the assets of the
enemy. And let me say two things in response
to that. First, as the notion that this is a
revenue raising tactic or power, it is not. We
are asserting a regulatory power. It's a delegation
of power to regulate foreign commerce. The way
to control imports traditionally has been to
tariff them. They say, well, you can impose quotas.
Well, quotas are essentially economically equivalent
to tariffs. So the question is, why would you
be able to quota under regulate but not tariff
under regulate when the tariffs are themselves
regulatory? And let me turn back to the question
I was given. Could the answer be that in other
places where Congress wants that particular form
of regulation to be used, they say impose duties.
They say you can tax, Mr. President. Here they
don't say that. I'd say two things in response
to that. That's the very argument that this court
rejected in Algonquin. that the fact that these
other specific statutes, do you say a certain
way you have to do it this way? If we disagree
with you that Algonquin is a similar context,
do you have another statute or another circumstance?
And again, not to cite Algonquin again, but obviously,
we discussed the phrase adjust imports. And they
said, the natural way to do that is to tariff
them. And they specifically said, it makes no
sense at all to authorize quotas, which was conceded
that that statute did authorize, but not tariffs,
because those are equivalent. But it's said it's
just by any means necessary. which kind of beefs
up the adjust. And also, and this is actually,
I just don't know the answer to this question,
so maybe it can help and maybe the other side
can help as well. Algonquin was very careful
to always call it a license and a licensing fee,
and in the oral argument that came up too, the
distinction between a tariff and a licensing
fee. And I can understand how in some context
it would be very difficult. You would press on
it and you would say, well, if this license fee
is raising revenue. then it actually functions
as a tariff. But what is the significance of
that? Because in IEPA, it also says, it refers
particularly to licenses. It says you can license.
And license would be a way of giving permission.
That's actually the language also used in the
Civil War one, and what is it? It was a license,
it was a license fee, and that's a way to grant
permission. that you wouldn't otherwise have
to trade and import and let it through. So tell
me what the distinction is between licenses and
fees and if it matters. It's hard for me to see
one. because what President Lincoln said is,
OK, we're going to allow imports from hostile
foreign powers, basically rebellious Confederate
states, of cotton subject to a license. But you've
got to pay $0 .04 a pound of cotton. When you
do it, that's the condition. That is so nearly
equivalent to a tariff that says you can bring
these goods into our country, but you've got
to pay an ad valorem assessment on it. And of
course, they have in their briefs conceded that
quotas apply, that licensing may apply. in the
beginning of 1701 that talks about instruments
or other methods, instruments, licenses. But
if that were true, why couldn't you just call
this a license? And it's also true that in the
Cotton example, the court said the exaction itself
was not properly attached, but a bonus required
as a conditioned precedent for engaging in the
trade. So it seems like it was a little squirrely
about how it was proceeding. And if there really
is no distinction, why couldn't you just call
it a license here? Very briefly, the other two
cases, you know, the Polk case and then the President
McKenna case talk about duties. So I see an equivalence
there, Mr. Chief Justice. Thank you, counsel.
Justice Thomas, anything further? The other side
is going to argue, make an argue on delegation,
I believe. Would you anticipate that and give
us your understanding of the delegation argument?
Yes, Justice Thomas, I'd say a couple things
in response to that. First of all, This court
has stated that the non -delegation doctrine
does not apply with anything like the same force
as it does in the domestic context in the foreign
context. And that, again, to cite Dames and Moore
again, Dames and Moore cites Youngstown and Youngstown
in footnote two of Justice Jackson's opinion.
He goes into detail about this. He addresses
Curtis Wright. He says there's a lot of broad
dicta in Curtis Wright. But the holding of Curtis
Wright, the ratio dissidenti, is that the domestic
non -delegation doctrine does not apply with
the same force in the foreign context. foreign
contacts. And he uses that phrase, does not apply.
He says the strict limitations on delegation
that apply in the internal context do not apply
in the external context. And so we rely on that
line of cases. And for the reasons I talked about
earlier, we're talking about a situation where
the president has his own inherent authority
to address foreign arising emergencies. And Congress
is conferring tools on him that expand his ability,
his capacity to do so. We are in the area of
Youngstown Zone 1. A few times you have alluded
to the history as being important in interpreting
the statute, and also that this language comes
from the Trading with the Enemies Act, and that
has its own pedigree. Could you just sketch out
this direct line that you were alluding to as
a basis for interpreting the current emergency
statute as you would like it interpreted? Yes,
Justice Thomas, and turning back to the response
I was giving to Justice Barrett earlier, there
is, I think it's very well set out in Professor
Bomsai's amicus brief, there is this history
of presidents using a tariffing power or a tariff
equivalent power, very, very close to tariffing
power, in wartime to tariff trading with enemies.
And that is when the Trading with the Enemy Act
was enacted in 1917, it was deliberately evoking
that, and when it brings in the power to regulate
importation, it's essentially codifying for an
inherent power the president's already recognized
to have. And then in 1933 when that power is
expanded to an area where he wouldn't inherently
have it, the peacetime context, that codification,
the meaning of that remains the same. The regulated
importation language that's brought in from Tuia
and then ultimately to Iepa in 1977 is carrying
with it that connotation. And that's reinforced
by all the cases we've cited in our brief where
there's been extremely broad delegations of the
power to tariff specifically and the power to
regulate foreign commerce more generally. going
back to the time of the founding, which ties
to your question about non -delegation. Justice
Alito? The CCPA said things in Yoshida that are
helpful to your position, but it also said some
other things. It said that future surcharges
quote, must of course comply with section 122
of the Trade Act. of 1974 and it said that the
trading with the enemy act did not authorize
the president to quote fix rates of duty at will
without regard to statutory rates prescribed
by Congress. So do you think that Congress to
the extent Congress had that decision in mind
and relied on it do you think it also relied
on those statements? in the opinion? Not in the
same way, because those statements are read into
other provisions of Tuia that Congress did not
enact in Anipa. They may still be there in Tuia,
but those are limitations that it wouldn't make
sense to do. And I think the significance of
Yoshida is at a higher level. Keep in mind that
their principal position is no tariffs at all.
Regulate importation just doesn't carry a connotation
of the power to tariff. And we say we've got
historical sources going back to Gibbons against
Ogden that say the opposite, but more fundamentally,
Everyone knew that, at the time IEPA was enacted,
that irregular importation had just very visibly
and very prominently been upheld to include a
sweeping global tariff. Thank you. Mrs. Sohmeyer?
I'd like to go back to Justice Barrett's question
on the word license as used in IEPA. It's not
used as a verb. It's used as a noun. The President
may, under such regulations as he may prescribe,
by means of instructions, licenses, or otherwise,
then do what the verbs permit him to do. By license,
he can nullify, void, prevent or prohibit any
acquisition, etc. So license is not being used
as a verb that through licensing he can raise
revenue. He can only use licenses to accomplish
the verbs. So I don't understand how we can treat
licensing is equivalent to revenue raising. As
used in IEPA, the license is only to accomplish
what B permits. In Hamilton v. Dillon, license
is once you have the license, then you had to
pay the fees. But that's the point I'm making,
which is that the only use of license here is
a noun. You can license to accomplish the powers
that begives the president. Let me be clear,
we rely on the phrase regulate importation. We're
not saying that executive order. Exactly. You're
not relying on licenses for that reason. No,
I only cite that language, that introductory
language about, you know, instruments, licenses,
or otherwise as another layer of breadth in this
particular section. Counsel, would you listen
to my question? You're not relying on license
for the reason I just said, because it is a noun,
not the verb. You're relying on regulate, correct?
Yes, we're going to regulate importation. And
despite the fact that no other president in the
history of AEPA has ever used tariffs as a power
under AEPA. Well, President Nixon did so under...
Under a predecessor, and we have all the limitations
of that. All right. Number two, whenever Congress
intends to permit taxing and regulate, it uses
the word tax and regulate in every other statute,
correct? I don't see that. I mean, two very visible
examples again are Tuia and Section 122. We're
back to the question here. Okay. Thank you, counsel.
Justice Sotomayor. No, she's Justice Sotomayor.
She just finished. Justice Kagan. And they're
friends? I want to take you back to Justice Thomas's
question about non -delegation. And if I understood
your answer correctly, it was really similar
to the answer that you started off with when
you talked with Justice Thomas about the major
questions doctrine, which is sort of everything's
different because the president has independent
constitutional powers in this area. if one does
not think that with respect to tariffs, if one
thinks that a tariff is a taxing power, is a
regulation of foreign commerce that is really
delegated by the Constitution to Congress, that
argument does not sound so well. And in fact,
when you look at J .W. Hampton, which gives rise
to the non -delegation test that we usually use,
J .W. Hampton is a tariffs case. And the court
did not say, oh, we need some special new principle
here, some stricter rule, because we're dealing
with tariffs in which presidents are directly
concerned as a matter of foreign relations. It
enunciated the test we use for all non -delegations.
So how does that fit with your theory? Eight
years later, in Curtis Wright, the court held
the non -delegation doctrine for domestic affairs
does not apply with the same forces. But not
with respect to tariffs, not with respect to
quintessential taxing powers, which are given
by the Constitution to... Congress. of the Republic
in 1790, for example, Congress conferred on President
Washington basically the entire Indian commerce
power is that go get licenses to do commerce
with the Indians and they'll be subject to whatever
rules and regulations President Washington can
make. So I do think there is a profound consistency
between the announcement of the intelligible
principle test in J .W. Hampton and then the
subsequent recognition by this court in Curtis
Wright that The non -delegation doctrine doesn't
apply to the same force in this context. In consumers'
research just last year, we had a tax before
us and the question was, was this a delegation
issue? It was of course a much smaller tax, which
dealt with many fewer taxpayers. Notwithstanding
that, we said if there's no ceiling on this tax,
We sort of assumed that if there were no ceiling
on this tax, it would raise a delegation problem.
And most of the opinion was given over to showing
that there in fact was a ceiling on the tax,
not a quantitative one, but a qualitative one.
But how does your argument fit with the idea
that a tax with no ceiling, a tax that can be
anything, that here the president wants, there
an agency wants, would raise a pretty deep delegation
problem. First of all, I can't say enough, it
is a regulatory tariff, not a tax. And that,
I think, ties to my response to that, which is
that this is a totally different context. This
is IEPA, a statute that Congress carefully crafted
to grant the president admittedly broad powers
to address foreign arising emergencies. It's
outward facing to foreign affairs, where there's
the broadest level of deference to the political
branches of this court as recognized in many
cases. And it imposed not a floor or limit on
the amount of a tariff that could be imposed,
very naturally, because For example, as this
court said in Loving, quoting Alexander Hamilton
in the Federalist Number 23, it's impossible
to foresee either what exigencies may arise or
what tools may be needed to address those exigencies,
the means that may be required to address those
exigencies. Instead... Congress grant very broad
powers, but they're confined to a particular
domain. This domain is any property in which
any foreign government or any national thereof
has any interest. So the sort of discipline,
if one were to apply, we say you shouldn't, but
if you were to apply the non -delegation doctrine,
the domestic -facing non -delegation doctrine
in this context, there's a significant limitation
there. Yeah, so my last question really does
have to do with that point, which is how or whether
this is confined, because if you look at Title
19, which is loaded with tariffs and duties of
various kinds, all of them have real constraints
on them. They are, you know, you can't go over
X percent or it can't last more than one year.
And of course, the way you interpret this statute,
it has none of those constraints. And the question
arises why it is that any president ever would
look to the tariffs in Title 19 if sub -celentia,
if you will, this statute gives the president
the opportunity to blow past those limits. This
statute has its own constraints. They are constraints
that are appropriate for the context, which is
internationally arising emergencies. They are
carefully crafted by Congress to address that,
and they are admittedly different. They're in
section 1701. The president has to make a formal
declaration of a national emergency, which subjects
him to particularly intensive oversight by Congress,
you know, natural lapsing, repeated review, reports,
and so forth. It says you have to consult with
Congress to the maximum possible. I mean, you
yourself think that the declaration of emergency
is unreviewable. And even if it's not unreviewable,
it's of course the kind of determination that
this court would grant considerable deference
to the president on. So that doesn't seem like
much of a constraint. which deals with the president's
emergency powers. And it turns out we're in emergencies
everything all the time, about half the world.
Well, this particular emergency is particularly
existential, as Executive Order 14257 says. And
of course, no one disputes the existential nature
of the Fentanyl crisis, which we had an agreement
last week to create progress on, which illustrates
the effectiveness of the terrorist tool here.
But the point I would make in response to that
is, even if there's limited judicial review,
which is very natural in the forward affairs
context, this court has always always granted
the President the presumption that he's acting
in good faith. There are real hurdles there,
very significant. It's got to be an unusual,
extraordinary threat that arises in whole or
substantial part outside the United States, so
it's entirely foreign facing, into the national
security economy or foreign policy of the United
States. So there are those. Then there's 1701B,
which talks about how it can be used for this
and for no other purpose. Then there are limitations
in section 1702B. Then there is the limitations
that I referred to earlier about what he can
actually do. He can do a heck of a lot, but only
when he's dealing with property in which foreigners
have an interest. And that's a pretty narrow
domain. That's quite a silo, so to speak. And
then, of course, overarching it all, there's
congressional oversight. And you may say congressional
oversight may not have much bite, but Congress
didn't think so. Congress crafted this compromise.
It balanced the never -ending tension. When it
drafted it, it had its eyes open. As the descent
below says, its eyes open looking at the problem
of sweeping emergency powers for an executive
who may them in a way that's excessive versus
the need to address unforeseeable emergencies.
Thank you, General. Justice Gorsuch. General,
just a few questions following up on the major
questions, discussions you've had. You say that
we shouldn't be so concerned in the area of foreign
affairs because of the President's inherent powers.
That's the gist of it, as I understand it, why
we should disregard both major questions and
non -delegation. So could Congress delegate to
the President the power to regulate commerce
with foreign nations as he sees fit? To lay and
collect duties as he sees fit? We don't assert
that here. That would be a much harder case now
in 1790. Isn't that the logic of your view, though?
I don't think so, because we're dealing with
a statute that was a carefully crafted compromise.
It does have all the limitations that I just
talked about. You're saying we shouldn't be concerned
with... I want to explain to me... how you draw
the line, because you say we shouldn't be concerned
because this is foreign affairs and the president
has inherent authority, and so delegation off
the books, more or less. And if that's true,
what would prohibit Congress from just abdicating
all responsibility to regulate foreign commerce,
for that matter declare war, to the president?
We don't contend that he could do that if it
did. Why not? Well, because we're dealing with
a statute again that has a whole... I'm not asking
about the statute. General, I'm not asking about
the statute. I'm asking for your theory of the
Constitution and why the major questions of non
-delegation... what bite it would have in that
case. I would say by then you would move from
the area where there's enormous deference to
the president, actually both the political branches,
where here there's inherent authority and piled
on top of that there's a broad delegation. You're
saying there's inherent authority in foreign
affairs, all foreign affairs, so regulate commerce,
duties and tariffs and war. It's inherent authority
all the way down, you say. Fine. Congress decides
tomorrow, well, we're tired of this legislating
business. We're just going to hand it all off
to the president. What would stop Congress from
doing that? That would be different than a situation
where there are meets and bounds, so to speak.
It would be a wholesale application. You say,
we are not here to judge meets and bounds when
the foreign... That's what I'm struggling with.
You'd have to have some test. And if it isn't
the intelligible principle test, or something
with more bite than that... You're saying it's
something less. What is that less? I think what
the court has said in its opinions is just that
it applies with much less force, more limited
application in this context. So perhaps the right
to approach it is a very, very deferential application
of the intelligible principle test, that sort
of wholesale abdication of... All right, so now
you're admitting that there is some non -delegation
principle at play here, and therefore major questions
as well. Is that right? It's very limited. Very,
very deferential. And again, the phrase that
Justice Jackson uses, it just doesn't... not
apply. I know, but that's where you started off,
and now you've retreated from that as I understand
it. Well, I think we would, as our frontline
position is a stronger position, but the court
doesn't accept it, then if there is a highly
- Can you give me a reason to accept it, though?
That's what I'm struggling and waiting for. What's
the reason to accept the notion that Congress
can hand off the power to declare war to the
President? Well, we don't content that. Again,
that would be - Well, you do. You say it's unreviewable,
there's no manageable standard, nothing to be
done, and now you're - I think you - Tell me
if I'm wrong. You backed off that position. Maybe
that's fair to say. Okay, all right. That would
be an abdication. That would really be an abdication,
not a delegation. I'm delighted to hear that,
you know. All right, and I wanted to return to
something Justice Sotomayor asked under this
statute, okay? So now we're in the statute. It's
a major question though. Could the President
impose a 50 % tariff on gas -powered cars and
auto parts? to deal with the unusual and extraordinary
threat from abroad of climate change. It's very
likely that that could be done. I think that
has to be the logic of your view. In other words,
this administration would say that's a hoax,
it's not a real crisis, but... I'm sure you would.
Yes, but that would be a question for Congress
under our interpretation, not for the courts.
All right. And then, on this inherent authority
idea, does... I understand the President's inherent
authority in wartime, and a lot of your examples
of regulating commerce and maybe your best one,
Hamilton, during the Civil War, they occurred
during wartime when the President's commander
-in -chief power is clearly in play. Does the
President have inherent authority over tariffs
and peacetime? No, we do not contend that. And
in fact, if I may, I point the court to two cases
that are loving against United States and then
Masary that cited in loving. Those are situations,
for example, loving against United States. The
president had broad Article II inherent authority.
There was the commander -in -chief power. But
this court held he does not have inherent authority
to do the power that was delegated to him, which
is the power to identify aggravators that make
you eligible for the death penalty in court martial
trials. And yet this court said, well, we're
not going to see a delegation problem here, even
though it's really a wholesale delegation, which
would otherwise be legislative authority. It
would be kind of like a small version of what
you're hypothetical. It would be an abdication.
But because you're in a foreign affairs context
where they are commander -in -chief, military
context, But the president has his own delegation
of authority. He doesn't have the power to do
this. But because of his background, inherent
authority, the court said, this is a situation
where we're not going to see a delegation problem
when there clearly would have been a delegation
problem in the domestic context. And those cases,
I think, are powerful here. General, if I can
cut through those words, I think you're saying
that, no, the president doesn't have inherent
authority over tariffs in peacetime. Absolutely.
We do not assert that. We say that Congress can
delegate that to him and when Congress does so,
as it does when it uses the phrase, regulate
importation. I follow all of that. You emphasize
that Congress can always take back its powers.
You mentioned that a couple of times. But don't
we have a serious retrieval problem here? Because
once Congress delegates by a bare majority, and
the president signs it. And of course, every
president will sign a law that gives him more
authority. Congress can't take that back without
a supermajority. And even then, it's going to
be veto proof. What president's ever going to
give that power back? Pretty rare president.
So how should that inform our view of delegations
and major questions. I would look at the balance
that Congress struck because what Congress did
initially it had a two -house legislative veto
and we struck that down and then Congress went
back to the statute and amended it. It took out
the legislative veto and left in the joint resolution
but still left the president with all those sponsors.
That's what Congress did? Yes. Fair enough. As
a practical matter, in the real world, it can
never get that power back. I disagree because
in January of 2023, Congress voted to terminate
one of the biggest IEPA emergencies ever, the
COVID emergency, and the president went along
with that. So what the statute reflects is there's
going to be the ability for a sort of political
consensus against a declared emergency. What
happens when the president simply vetoes legislation
to try to take these powers back? Well, he has
the authority to veto legislation to terminate
a national emergency, for example. I mean, he
retains the powers in the background because
IEFA is still on the books. But if he declares
an emergency and Congress doesn't like it and
passes a joint resolution, yes, he can absolutely
veto that. Congress is a practical matter. It
can't get this power back once it's handed it
over to the president. It's a one -way ratchet
toward the gradual but continual accretion of
power. in the executive branch and away from
the people's elected representatives. I disagree
with that, and the recent historical counterexample
of Congress's termination of the COVID emergency
demonstrates that political, the political oversight
- With the president's assent. With the president's
assent, in fact, you know - Once he lost it by
a veto -proof majority in the Senate, I think
the position - Yeah, right. I think he realized,
and that's the political process working. There
was a political consensus against it to coalesce.
Yeah, it takes a supermajority, a veto -proof
majority to get it back. Yeah. Okay. One other
question. Do you think tariffs are always foreign
affairs? I do think they would I can't think
of a situation where they're not foreign -facing
if you're talking about tariffs on imports. I
mean Maybe there are other tariff contexts that
I'm not aware of, but yes, they typically would
involve a foreign affairs thing. However, in
Gibbons against Ogden, if they are revenue -raising
tariffs, they would not raise the same sort of
foreign affairs issues as regulatory tariffs,
which are imposed not for the purpose of raising
revenue, but to induce foreign powers to change
their behaviors. So revenue -raising tariffs
are not foreign affairs, but regulatory tariffs
are. I don't think a revenue -raising tariff
would be foreign affairs to the same degree,
at least. I think it has a foreign application,
obviously, but I don't think it would raise the
same issues. Thank you, General. Justice Kavanaugh.
Figuring out what regulate importation means
is obviously central here. And for major question
purposes, I think the way we think about that
kind of question is, does the specific authority,
power, major power, now asserted pursuant to
that general statutory authorization. Was that
the kind of power that would have been understood
by people, by Congress at the time the general
statute was passed, as distinct from being a
novel kind of use of that general authority to
do something different? Unheralded is the word
in our cases. Okay. One problem you have is that
President Sencaipa have not done this. Your primary
answer, or one of your many answers to that,
is the Nixon example. And that's a good example
for you because Nixon relied on regulate importation
to impose a worldwide tariff. Good example. What
is our understanding of Congress in 1977 vis
-a -vis that Nixon example when Congress re -enacts
or enacts the regulate importation language into
IEPA. Congress at that time was fully aware that
a Court of Appeals with exclusive jurisdiction
had interpreted that very phrase, very visibly,
very prominently, to include the power to tariff,
and then reenacted it without change. The court
addressed a kind of lesser situation in Algonquin
when it came to section 122, and the court said
President Nixon interpreted this to include a
tariffing -like power. And then Congress, a few
months later, reenacted the language without
change, and that's powerful evidence of congressional
acquiescence. So the historical background is
very powerful, and it's buttressed, of course,
by sources going back to the founding where we
say the phrase regulated importation, a quintessential
application of that is the power to tariff. That's
how you regulate import system. Why, this may
require some speculation on your part, economic
philosophy, et cetera, but I'll ask it. Why do
you think Presidents Clinton, Bush, Obama have
not used IEPA to impose tariffs on, because there
have been trade disputes and certainly you know,
President Bush, stealing ports and the like.
Why do you think IEPA has not been used? If you
look at those 69 emergencies, in fact, you go
through them one at a time, which we had our
team do, it's really hard to find one. When you
look at that emergency, you say, oh. tariffs
is the natural tool you would use to address
that emergency. So, for example, the blood diamond
emergency, you know, tariffing these sort of,
you know, criminal organizations in Africa that
are financing terrorism to the sale of diamonds,
you don't really tariff them. Or you take, you
know, the Iranian hostage crisis, President Carter
didn't say, oh, you've seized all of our, you
know, embassy personnel, you're holding them
hostage, we're going to tariff you, right? And
if you go through those emergencies, there are
two emergencies, though, where tariffs are the
obvious natural tool for a president to use.
One is the Nixon balance of payments deficit.
a problem, and the other is this particular emergency.
And also, there's political reason. I think it's
no question that President Trump is by far the
most comfortable with the tariffs as a tool,
both of economic and foreign policy, than many
of the other presidents may have been. I mean,
there are presidents like President Bush who
probably wouldn't have naturally selected that
particular tool or method. But if you go through
all 69 of those intervening emergencies, what
they have not done, at least, is they have not
identified or they say, oh, here's one where
tariffs would have been the obvious tool, but
the President didn't use it. Algonquin, as you've
mentioned many times, is obviously very important
here for us to understand exactly what's going
on in Algonquin. The phrase there is different,
adjust imports, and they really, the other side,
your friend on the other side, really relies
on the difference in language. I just want you
to give your best answer to why regulate importation
encompasses tariffs, when adjust, we held that
adjust imports would encompass monetary exactions.
Three answers, if I may. Adjust is narrower than
regulate. And so, therefore, the writer includes
the last year. So it follows. Second answer.
adjust is the second Black's law dictionary definition
of regulate. The original plain meaning dictionary
definition says adjust by rule mode or rule method
or established mode. So there's just a plain
meaning link there. Regulate, adjust is a kind
of regulation. And then I think far more importantly,
regulate importation. I can't emphasize enough.
Going back to the time of the founding, going
back to the time of the founding has been understood
that the manner in which you regulate importation.
The natural way to do that is to tariff. So it
would be textually astonishing given that historical
pedigree going back to Gibbons, going back to
Madison's letter to Cabell and all the historical
sources cited in our briefs, it would be kind
of astonishing to say, hey, President, you can
regulate imports, but we're not saying this explicitly,
but you do not have the power to tariff when
the tariffing is in many ways the quintessential
way of regulating importation. So that historical
pedigree sort of gives freighted meaning to that
two word phrase. And last, you had some discussion
about license fee versus tariffs, if there's
a distinction. I mean, the Council in the oral
argument in Algonquin said they're all monies
exacted on imports, so in that sense it certainly
is a tariff, and hence all the incidents and
the economic effect of a tariff. But we can't
rely on what the Council said in Algonquin. You
know, isn't there a difference? of sorts, at
least, between a tariff and a license fee. You
answered this, I think, briefly before, but I
want to make sure, because I think this could
be an important point, because I want to know
Algonquin to decide this case. So give me a best
shot on that. I agree that there is maybe a minor,
there's a formal distinction. But as a practical
matter, I think what Council was probably arguing
there is that there really isn't much of an important
distinction and I would point to the passage
in Algonquin where the court says look they've
conceded that this includes the power to quota
and since quotas are a quantitative mess it would
make no sense for Congress not to grant the qualitative
method, and all the more so here, if there's
a concession, as they do in some of the red books.
One time the court said, monetary methods, i
.e. license fees. And the next page said, monetary
exactions, i .e. license fees and duties. I think
the court bought the argument correctly. It's
important to be consistent. There's really not
a lot of daylight between those two. As a practical
matter, certainly almost no daylight. And so
then the question that you say. You say, almost
no daylight. I mean, I would say that they're
economic equivalents. Legally, they're pretty
much the same. So I really don't see a big distinction
there. And of course, the logic of Algonquin
was quantitative methods, quotas are allowed.
Therefore, it would make no sense at all to interpret
this not to include the qualitative or the monetary
exaction methods. Well, if we're talking about
a distinction between regulated importation,
including licenses that could come with fees,
but not tariffs, that logic applies all the more
so. Thank you. It makes no sense. Justice Barrett.
Well, I think in Algonquin there was a formal
distinction that mattered because at that oral
argument, counsel pointed out that the uniformity
clause would kick in and the constitutional uniformity
requirement would apply to tariffs, if it was
that way, and speculated that the reason that
the government may have set it up as a licensing
scheme with licensing fees was to avoid that.
So I do think there are some distinctions, but
keeping that in mind, if you say that there really
is, as a practical matter, no difference, This
is kind of what I'm hung up on in license that
maybe you can help. So in IEPA, Justice Sotomayor
is right, license is used as a noun, but it's
one of the means necessary. So in Algonquin,
it was by any means necessary adjust. Here the
statute says the president may, under such regulations
as he may prescribe, by means of instructions,
licenses, or otherwise, regulate importation,
which is. the key part for our purposes. So the
means it specifies are instructions, licenses,
or otherwise. So I think it would, I mean, one
argument might be that it would have been natural
for Congress to put the President may by means
of instructions, licenses, tariffs, or otherwise,
with an adjunct and generous thing, I think you
have to rely on the or otherwise picking up more.
Or if there really is no practical difference
between licenses and tariffs, why aren't you
making the argument, or why didn't the president
structure this as a licensing fee scheme? How
do I understand that language? Or am I just misunderstanding
it, and this language is totally irrelevant?
Here's the way I'd respond to that. I think that
language powerfully reinforces our position,
as the way you've laid it out right there. Because
first of all, regular importation we say, and
based on extensive historical pedigree, the core
application of that is tariffing. To list tariffing
again would have been essentially redundant and
unnecessary, especially if you look at the specific
historical background of Tuia, where Tuia was
enacting a tariffing power or a licensing -like
power that was described as, again, duties and
tariffs equivalently. OK, but I don't understand,
because I think you have to put together A1 and
then... So I think what you would be saying is,
he may prescribe by means of tariffs. I think
what you're saying is by means of instruments,
licenses, or otherwise. By instructions, licenses,
or otherwise imposed tariffs? If you say instructions,
license, or otherwise, and we're asserting a
power that's very, very similar to licensing,
otherwise naturally carries that with it. But
that's not our principal position. Our principal
position is regular importation means that. So
you don't need to say it again. However, if Congress
has authorized them to do it by licenses that
could come with fees that are economically equivalent
to tariffs, and then it says otherwise, that
just reinforces the same conclusion that we get
by using the phrase. Okay, then question just
to follow up on Justice Gorsuch's thing about
how can Congress ever get this delegation back.
You said, well listen, you point to the Congress's
ability to terminate emergencies, which it's
done. But if Congress ever wanted to get the
tariffing power back? it would have to have a
veto -proof majority because, regardless of the
emergency, so if Congress wanted to reject the,
let's say that we adopt your interpretation of
the statute, if Congress said, whoa, we don't
like that, that gives a president too much authority
under AIIPA, it's gonna have a very hard time
pulling the tariff power out of AIIPA, correct?
I don't know if it'd be a hard time, certainly
would have to have a statute amendment, which
would be the true of any case when this court
definitively interprets a statute. But definitively
interpreting a statute that grants presidential
power makes it particularly hard to get the president
to not want to veto something which, as Justice
Gorsuch is pointing out, has him lose power.
All right. I want to ask you a question about
unusual and extraordinary threats, which we have
not talked about yet. And I specifically want
to talk about the reciprocal tariffs. These are
imposed on, I mean, these are kind of across
the board. And so is it your contention that
every country needed to be tariffed because of
threats to the defense and industrial base? Spain,
France, I mean, I could see it with some countries,
but explain to me why as many countries needed
to be subject to the reciprocal tariff policy
as are. Executive Order 14257 spells out the
nature of the emergency and basically says that
there's this... this sort of lack of reciprocity,
this asymmetric treatment of our trade with respect
to foreign countries' trade that does run across
the board. This is a global problem. I think
that puts in context the argument they make that
this power to tariff is so broad because you're
applying to every country in the world. That
conflates the nature of the tool, tariffing,
which they're challenging here, with the nature
of the declared emergency, which they haven't
disputed. They haven't disputed, for example,
that the president has correctly identified that
virtually every major trading partner has this
long -standing So asymmetric unfair treatment
of our trade. So the argument, this power is
so broad, this power is so broad, is really based
on a conflation of two different things. One
is the power, right? Imagine this. Imagine that,
for example, President Reagan had wanted to convince
South Africa to change his apartheid policies,
and he'd impose tariffs on them. No one would
bat an eyelash and say, well, that's too broad.
That's too broad. That can't be an IEPA. The
power to tariff is a sort of fits naturally with
all those powers to block, prohibit, and seize,
and so forth. They're saying this is so broad
because the emergency is so broad. But of course,
that's a presidential determination, and there's
all kinds of basis for it. And also, keep in
mind that the emergency is not just the asymmetric
treatment. It's the impact of the asymmetry,
the underlying conditions, the hollowing out
of our manufacturing base, the vulnerability
of our supply chains, and of course, our defense
industrial base's vulnerability of key inputs.
Justice Jackson? So as I understand your response
to Justice Barrett in that last question, you're
saying that the Power to tariff fits naturally
with the power to block and seize. That was your
example. But I guess I'm trying to understand
then your argument from the text of the actual
statute. Because the statute, unlike what you
suggested to Justice Kagan, is focused on the
actual actions that the president can take. In
response to Justice Kagan, I understood you to
say that Congress was giving the president brought
authority to act, and it was within a particular
domain, which is the domain of emergencies with
respect to foreign power, but the president could
basically do a lot of things. But when I read
the statute, it is telling the president exactly
what he can do. Investigate, block during the
pendency of an investigation, regulate, direct,
and compel, nullify, void, prevent, or prohibit.
And I guess what is a little concerning to me
is that your argument suggest that we should
see the word imposed, the phrase imposed tariffs
in that same series of things that the president
could do. We don't see that word and instead
you take regulate and say that must mean that.
So I guess I'm getting back to Justice Barrett's
maybe original question which was where else
in the code has Congress used the word regulate
to sub in for imposed tariffs? And then this
court's opinions, of course, have used regulate
and import or have pointed out that duties are
the natural way to regulate foreign commerce.
But you're saying we should not have expected
to see the same level of granularity with respect
to the president's authority to impose tariffs
as we see here investigate, block. direct and
compel, nullify, et cetera. I think it would
be very unusual for Congress to spell out all
the ways that you can regulate in that sense.
So regulate becomes a big catch -all. The rest
of the other things. Well, I mean, we have a
concession of that from the other side, that
regulated lease includes qualitative methods,
quantitative methods, quotas, licenses. They
can see that there's a lot in regulate that's
not spelled out there. And our point is you don't
need to spell out tariffs, because that's, like,
of all of them, the most natural, the most quintessential
method of regulating imports. And yet many, many
presidents have not used regulate in this way
to impose tariffs. I understand you point to
President Nixon. We have licenses from Lincoln,
but no one else. As is Justice Kavanaugh, presidents
who are faced with international crises to which
tariffing is the natural response, that's President
Nixon and President Trump, have invoked this
authority. And also, frankly, President Trump
invoked this authority in May of 2019 as well.
Can I ask you one question? So it's more historically
attested than they can see. Let me just ask one
more question about the unusual threat. So in
your conversation with Justice Gorsuch, that
we had the climate change tariff hypo, and you
indicated that there would be challengers to
the notion that that was an unusual and extraordinary
threat. And I'm just wondering, under your position,
would they be able to make a legal challenge?
Are you saying the court would not be able to
review that term? On that particular hypothetical,
I think I said that'd be a question for Congress.
So not a court? In other words, that wouldn't
be the sort of thing that courts would want to
wait into. Is this really an emergency? That
would not be probably very unlikely. That'd be
a situation where at least there'd be very, very,
very deferential judicial review of that kind
of determination. No, I'm asking about those
are two different things. Is there no judicial
review, or is there deferential? I mean, Trump
against Hawaii. Our front line position is that
it falls within Dalton against Specter. It's
committed to the president's discretion when
he makes his termination of a national emergency.
But the court doesn't have to decide that. because
whatever review is very, very deferential, it's
easily satisfied here. Thank you. Thank you,
counsel. Mr. Katyal? Thank you, Mr. Chief Justice,
and may it please the Court. Tariffs are taxes.
They take dollars from Americans' pockets and
deposit them in the U .S. Treasury. Our founders
gave that taxing power to Congress alone. Yet
here, the President bypassed Congress and imposed
one of the largest tax increases in our lifetimes.
Many doctrines explain why this is illegal, like
the presumption that Congress speaks clearly
when it imposes taxes and duties, and the major
questions doctrine. But it comes down to common
sense. It's simply implausible that in enacting
AIIPA, Congress handed the president the power
to overhaul the entire tariff system and the
American economy in the process, allowing him
to set and reset tariffs on any and every product
from any and every country at any and all times.
And as Justices Gorsuch and Barrett just said,
this is a one -way ratchet. We will never get
this power back if the government wins this case.
What president wouldn't veto legislation to rein
this power in? and pull out the tariff power.
AIIPA is a sanctioned statute. It's not a tax
statute where Congress gave away the store. Congress
knows exactly how to delegate its tariff powers
every time for 238 years. It's done so explicitly,
always with real limits. AIIPA looks nothing
like those laws. It uses Regulate, which Congress
has used hundreds of times, never once to include
tariffs, and it lacks the limits of every other
tariff statute. And that is why, even though
presidents have used AIIPA to impose economic
sanctions thousands of times, no president in
AIIPA's 50 -year lifetime has ever tried to impose
tariffs. And the president bypassed statutes
that do address tariffs, like Section 122 for
large and serious trade deficits, but that imposes
a clear guardrail. 15 % cap, 150 -day limit.
This is Youngstown at its lowest level. If the
government wins, another president could declare
a climate emergency and impose huge tariffs without
fines or without floors or ceilings, as Justice
Gorsuch said. My friend's answer, this administration
would declare it a hoax. The next president may
not quite say that. This is an open -ended power
to junk the tariff laws and is certainly not
conveyed by the word regulate. I welcome the
court's questions. Wouldn't your argument also
apply to embargoes? So, and this is the argument
in the fine descent below, and I think there
are three answers to that, Justice Thomas. The
first is revenue raising. Embargoes stop the
shipment. Tariffs start the tax bill. They are
first and foremost ways of regulating revenue,
as some of your own opinions said. This is the
way we actually chiefly got revenue for the first
hundred years of our republic. Tariffs are constitutionally
special because our founders feared revenue raising
unlike embargoes. There was no Boston Embargo
Party, but there was certainly a Boston Tea Party.
The second thing, textually, in the statute.
It's different. Regulate appears in a cluster
of verbs, as was said before, investigate, block,
nullify, and the like. They describe embargo
-like controls, prevent and prohibit, for example.
But they don't describe revenue exactions. That's
Justice Kagan's point. The one verb that's missing
here is anything about raising revenue whatsoever.
Another point, congressional displacement. Today
there is a whole host of statutes in the tariff
architecture of Title 19, which both expressly
confer the power to tariff and always impose
clear limits. Embargos by the president, embargoes
don't have any of that. They don't set aside
that whole thing. If you look at the learning
resources brief at page five, it goes through
these statutes in detail. Section 122 expressly
says duties and then limits it 15%. Let's go
back to your non -delegation point. It would
seem that if the tariff power cannot be delegated,
your argument on non -delegation would also have
to apply. to embargoes and to quotas? No, Your
Honor, because I think tariffs, because they're
uniquely revenue raising, impose special, unique
concerns that go back to our founding. And so
I don't think that they apply to embargoes. And
indeed, the history of this is very clear. As
you just heard my friend say, in 1790, George
Washington was delegated massive embargo power
from the Congress. But what did Congress not
do? And this is why the example cuts the other
way. They never gave the president any sort of
delegation of tariff authority at the time. Our
point is not you can't delegate tariff authority.
It's simply that you've got to do so with intelligible
principles. And what you just heard my friend
say is every single limit in AIIPA is one that
is not judicially enforceable. There's no limit
whatsoever. And indeed the main limit that was
in there, he calls this some compromise position.
The only compromise in 1977 was the legislative
veto. And as this case comes to the court, that's
no longer in the statute at all. Yes, sure. The
tariffs are a tax, and that's a core power of
Congress. But they're a foreign -facing tax,
right? And that foreign affair is a core power
of the executive. And I don't think you can dismiss
the consequences. I mean, we didn't stay in this
case. And one thing is quite clear, is that the
foreign -facing tariffs have in several situations
been quite - I'm sorry. were quite effective
in achieving a particular objective. So I don't
think you can just separate it when you say,
well, this is a tax. Congress's power, it implicates
very directly the President's foreign affairs
power. Mr. Chief Justice, we don't disagree with
a large part of that. We think instead of thinking
about foreign versus domestic, the better way
of thinking about it is Article 1 versus Article
2. And as my friend finally conceded to Justice
Gorsuch, there is no Article 2 power here, at
least when we're talking about peacetime. Well,
you don't agree with a large part. What's the
little part that you do disagree with? So we
agree with the idea that terror have foreign
policy implications. Absolutely. Our founders
recognize that. That's in the Federalist Papers.
But nonetheless, they exclusively committed that
power to the Congress in Article 1, Section 8,
and gave it as its first power. So when you hear
my friends cite cases like Egan and Garamundi,
they just don't apply to this specific unique
situation in which Congress has given that power.
And if you were tempted by this, I think the
best place to look is Youngstown, because what
Justice Jackson said and I was surprised that
he quoted page 652 because what Justice Jackson
said is quote, emergency powers tend to kindle
emergencies so it's essential the public may
know the extent and limitations of the powers
that can be asserted and persons affected may
be informed from the statute of its rights and
duties. And Justice Jackson went on to say there
that it's notable our founders didn't give the
president revenue -raising power even in a time
of war. clarification of your answer, which is
you agree if the word tariff were in the statute,
that would be acceptable and constitutionally
permissible, correct? No. Well, it would be constitutionally
permissible. The question would then be, is the
open -ended assertion of power here? Because
every other tariff statute has limitations. Oh,
I get as applied to this case. But the general
point is, yes, Congress, you said it's assigned
to Congress. But Congress can... grant authority
to presidents to impose tariffs as a general
proposition. Okay, so we have to figure out then
what regulate importation means. And you've heard
my questions. If this statute came out of nowhere
in 1977, I think your case would be, you know,
obviously stronger. We have to figure out, at
least I... want to figure out what the Nixon
precedent stands for and what Algonquin stands
for. On the Nixon precedent, the question is,
I think, was Congress aware of that, meaning
that when they used regulated importation and
it's now being used to encompass tariffs, that's
not unheralded because Congress was well aware.
You know, President Nixon announced those tariffs
in a nationwide primetime speech, 10 percent,
across the board in August 1971. It was not some
kind of little piece of paper. So it was well
known. The question then is, was Congress, why
didn't they change the language? Why didn't they
say regulate but not tariffs? That's kind of
the difficult question from the Nixon precedent
that I'll give you an opportunity. Thank you,
Justice Kavanaugh. So five answers on the Nixon
precedent. First, there is no evidence that Congress
thought it was ratifying Yoshida. It was a single
court of appeals case. It's not some of my question.
I never mentioned Yoshida. It's the Use by the
president of that power under regulated import
importation if we're just talking about that
President Nixon did not rely on the statute whatsoever
I mean, that's very clear In fact, we have a
Marshall McLuhan moment here because you have
before you Alan Wolf The person who was there
in the room with Nixon saying Nixon totally disagreed
that this statute applied So if we're just talking
about Nixon, I don't think it can get the government
where go to your other four Yeah, so I think
the only way it does any work is if the president
is through the. the vehicle of Yoshida. And that's
what I take it. The government is arguing. And
with respect to that, this cert denied intermediate
court appeals decision, I don't think it can
come close to overcoming the clear plain text.
The word regulate is words regulate importation.
The word regulate has never been used. It's been
it's the Congress uses the term 1 ,499 times.
We've got about that number of hits when we looked
at it. And maybe there's some double counting,
but it is never used even once. to impose taxes
or revenue raising. And that was the question
that Justice Barrett was asking. And so I don't
think that this intermediate court of appeals
decision will get you there. And then even if
you thought that Congress knew about Yoshida.
Even if you thought they liked it, which there's
absolutely zero evidence of, I don't think that
helps the government for reasons that Justice
Alito was pointing to, because Yoshida said three
things. A, TWA doesn't give the unlimited authority
that the government is seeking here. B, they
were only upholding the limited specific assertion
of authority that President Nixon sought there.
And third, going forward, the solution, they
said in footnote 33, was to use Section 122 of
the 1974 Trade Act, 15%, 150 days. We have no
problem with the president doing that. It's just
that this president has torn up the entire tariff
architecture. For example, he's tariffing Switzerland,
one of our allies, which we have a trade surplus.
39 percent. That is just not something that any
president has ever had the power to do in our
history. And the idea that Congress, by implication,
did this in 1977 and handed him all this power,
I think is really difficult. Let's start with
just the bare statutory language. You have arguments
about structure. You have arguments about history.
They're strong arguments, but let's just start
with the bare statutory language, regulate importation.
If we disregard all of the rest, would you dispute
that that would include the imposition of a fee?
So if it's revenue yeah, we do dispute that absolutely
What if there were a statute that said I mean
suppose that there's a particular national park
that's very crowded and then Congress passes
a statute that says the National Park Service
May regulate admission to the park would you
say well that does not allow them to impose a
fee? So, you know, Your Honor, sometimes we think
of fees as not revenue raising, but rather capturing
the cost of government services, in your example,
the going to the park. That may, you know, those
kinds of cases which you think... Suppose it
goes beyond the cost of running the park. Congress
just wants to control admission to the park,
regulate admission. Wouldn't that include the
imposition of the fee? So, if it doesn't raise
revenue and it's not about that, then I think
that's fine. If it does... It raises revenue.
That's the hypothetical. That wouldn't apply?
So, I think in that circumstance that it wouldn't
be a regulation in context and wouldn't be permitted.
That is, at least in the context of tariffs and
trade, we know, Justice Alito... Well, that gets
into your other arguments. We start out... with
the bare statutory language. And that was what
my question was about. Do you think all tariffs
are revenue raising? Suppose that instead of
imposing these across the board tariffs, suppose
that an executive order imposed a tariff on one
particular country. provided that this would
take effect in 90 days and suppose that within
those 90 days an agreement is reached with that
country so that no tariff is ever collected.
Would that be a revenue raising tariff? I take
it the initial point, and on its face, it is
revenue raising, that that's what it's for, and
so I think that would. And look, I don't doubt
that there are edge cases. That is what this
court's confronted just recently in FCC versus
Consumer Research, and you said, look, what is
a tax? It's sometimes very hard. What is revenue
raising? This is obviously revenue raising. Their
own brief to the court says it's going to raise
four trillion dollars. And Justice Alito, you
and your consumers research dissent, or Justice
Gorsuch's dissent that you joined, said taxation
is special and different, and it is the most
powerful thing the government does. And the idea
that Congress, when they know exactly how to
write tariff and tax statutes, gave this power
by implication through the word regulate, I think
is very, very hard to... You cite many different...
statutory provisions that impose tariffs. And
you have a point if that's the relevant universe.
What if the relevant universe is tariffs that
are imposed in emergency situations? Yes, so
I think it cuts the other way so you know as
Justice Jackson said it's when you're in an emergency
situation the statutes actually have to speak
with more precision the public needs to know
because emergencies beget emergencies and I would
say the best way of understanding what Congress
does in emergencies is to look at their emergency
statutes not one has ever given the president
a taxation power or a tariff power. We've had
all sorts of emergencies for 238 years. No president
has ever said, oh, the way to deal with that
is I need to have a tariff authority. And as
Justice Sotomayor said, AIPA gives already a
quota power so you can get what the foreign policy
piece of it is through that. I'd also say, Justice
Alito, Dames and Moore, which the Chief Justice
referred to earlier, I think is really important
here because the solicitor general in that case
made a similar argument to what you just heard
on the claims provisions. He said it falls within
regulate. Regulate is a capacious term. He said,
Justice Alito, what you said, this is an emergency
situation. And he said you've got to defer to
the president on a major issue of national security
about this very statute. And what did the court
do? It rejected those arguments and said IEPA
doesn't cover the argument. You say that this
is not, this case does not. that these executive
orders do not address an unusual and extraordinary
threat. I understand that argument. Suppose that
there was an imminent threat of war, not a declared
war, but an imminent threat of war with a very
powerful enemy whose economy was heavily dependent
on US trade. Could a president under this provision
impose a tariff as a way of trying to stave off
that war? Or would you say no? the president
lacks that power. Couldn't do tariff, but could
do quota, embargo, all of those things. Could
do all those things, but the president could
not impose the power. There's one thing he couldn't
do. There's a category shift between a tariff
and the other eight powers in IEPA because it
is revenue raising. So it's not a difference
in degree or something like that. That's why,
you know, I don't doubt tomorrow. Even if the
purpose of this had nothing whatsoever to do
with raising one penny, the president didn't
want to raise one penny, the president wanted
to deter aggression that would bring the United
States into a war. You would say, no, can't do
that. Just Alito, I think you've said many times
the purpose isn't what you look at. You look
to actually what the government is doing. And
if you disagree, if you ruled for us and the
president says, I need this power, he can go
across the street to Congress tomorrow and get
it by a simple majority through reconciliation.
But if you vote for them, This power, as Justice
Gorsuch said, as Justice Barrett said, is going
to be stuck with us forever. The power to generalize.
I just wanted to give you a chance to address
kind of the other argument that's been submerged
here textually. Again, just bare text for a moment,
okay? We've been focused on regulate importation,
but actually the statute says the president may,
by means of licenses or otherwise, regulate importation.
And we've had some discussion today about the
fact that maybe the President could simply re
-characterize these tariffs as licenses or rejigger
the scheme so that they are licenses. We've also
heard the suggestion that otherwise, you know,
licenses and tariffs are very similar, so otherwise
might encompass tariffs there. Thoughts? Yeah,
a few thoughts, Justice Gorsuch. First is the
SG is not even making that argument, and I think
they're not making it for a number of reasons.
One is that there's a strong presumption against
reading statutes this way in the unique tax and
duties context. Hartramp is one of those cases
which says if there's doubt, you don't read the
statute to confer such powers. Second, if you
were to do that, it's open -ended. It allows,
and this was your hypothetical, it allows under
the word license. them to tariff the world. Seems
like you're putting a major questions thumb.
or an interpretive lens thumb on the plain text
there. Is that fair? I think it's, I think you
could call in major questions. I just think it's
like Justice Barrack said in Nebraska versus
Biden, the most natural way of understanding
what the statute is about. We're talking about
under the government's reading, a statute that
gives the power to the president to junk the
entire territory. I understand that, but you're
not disputing licenses or otherwise means what
it says. You're saying we should interpret that
narrowly for particular reasons. So I think,
well, I am disputing it as well. I think the
license isn't something Justice Sotomayor was
saying. Don't expand the power. They are not
verbs. And so it is limited to the nine verbs
there. Oh, I understand that. And so regulate,
I don't think. Thank you. Thank you, counsel.
Justice Thomas, anything further? I'd like to
just revisit the point that Justice Alito was
making with a similar question. If one of our
major trading partners, for example China, held
a U .S. citizen hostage, could the President,
short of embargoing or setting quotas, say the
most effective way to gain leverage is to impose
a tariff for the purpose of leveraging his position
to recover our hostage? No, your honor. So tariffs
are different because they're revenue raising
and there's, and I think it goes to the point
I was saying to you in our very first colloquy,
which is quotas embargoes and stuff are different
for a different reason, which is there's no,
there's a tariff architecture around title 19
in title 19 that in tariff would like in your
hypothetical would supersede. And here the president
is seeking the power to set aside. all of our
trade treaties unilaterally under the word regulate.
I just don't think it can bear that weight. Justice
Alito? You mentioned other tariff provisions
that you think would be rendered redundant if
we adopted the government's interpretation of
AIIPA. One that you didn't mention which is discussed
in an amicus brief, is Section 338 of the Tariff
Act of 1930. Why doesn't the plain language of
that provision, which does speak specifically
about duties, provide a basis for all or virtually
all of the tariffs that are at issue here? Yeah,
the government's never made that argument, Justice
Alito, and I think for very good reason, because
it only applies to MFN violations, which are
not at issue here. You can only tariff if the
president, quote, finds as a fact that a country
satisfies two conditions, including that it discriminates
against the United States. There are also a host
of other reasons why Section 338 may have lapsed,
and that's why no president has ever used it.
But look. What is the argument that it's lapsed?
And we put this case on a very expedited schedule,
and therefore there are limitations on what and
the party's ability to answer each other's arguments
or arguments that are made by amici. The amicus
brief says that it hasn't lapsed. There are articles
that say it hasn't lapsed. What is your argument?
What is the basis for your argument that it lapsed?
So two things, Justice Alito. Sections 252 and
301 have been understood by many to have superseded
section 338. And second, I don't think you have
to get into this issue at all. We're not here
saying that the government doesn't have a 338
power. That's something that can be decided by
other courts at other times. As these folks come
to the court, as the government comes to the
court today, they're citing one statute and one
statute only, AIIPA. And we submit to you, it
doesn't come even close to authorizing these
worldwide tariffs? Well, what if the President
tomorrow were to say, I'm reissuing these executive
orders and I'm invoking, in addition to other
authorities, Section 338 of the Tariff Act, 1930?
I think at that point, we'd have that case. I
mean, I'm not here to say that 338 does or doesn't
do one thing. I'm responding to the government's
argument, which is the invocation of IEPA and
IEPA alone. But perhaps that point, Justice Alito,
may get the court's comfort. So then, I mean,
I understand party presentation and all of that
and not being a court of first view. But in these
circumstances, if that were to happen, and it
might be a realistic possibility, you think,
well, OK, then Government would continue to try
to collect these tariffs and the plaintiffs here
would have to go back to the Court of International
Trade or the District Court and challenge it
again and it would have to progress through those
lower courts and come back to us when? A year
from now? Six months from now? While the tariffs
continue to be collected and the amount that's
at stake mounts into the Billions, I mean, what
are we at now? $100 billion? We get up to a trillion?
That's what you're suggesting? So, Justice Alito,
I think a few things. One is I think it's rich
for the government to be making this argument
about the refunds undermining us because they
oppose the preliminary injunction in this case
by saying, oh, don't worry, we'll give the refunds
later. And they sought a stay in the Federal
Circuit on exactly that ground, which was you
don't need to implement the Federal Circuit's
decision because we'll give the refunds later.
Well, that really wasn't my question, Mr. Katyal.
The question was whether it would make more sense
for us to address that, if that is a possible
justification for these tariffs, for us to address
that now and get it over with rather than having
this continue for who knows how long while it
goes through the... through the procedures in
the lower courts. Justice Alito, I think that
has forfeited nine ways to Sunday. This amicus
brief has been filed in every single stage of
this case. The government's never embraced that
argument. For them to be able to do so now I
think is way, way too late. But I do think if
you ruled, as we're suggesting you do, against
the government, they can go and try and seek
to use other authorities, whether it's 338, Section
122, et cetera. Those are the ways prescribed
by the Congress. As Justice Kavanaugh was saying
earlier, every other president has used all this
suite of other authorities, 201 for steel, for
autos and things like that, 301 for countries
like China. This president has come along and
said something different. And with all due respect,
we don't think IEPA allows him to do this junking
of the worldwide tariff architecture. And what
was the view, what were the views of President
Trump's? immediate predecessors on the question
of imposing tariffs or allowing free trade? What
was their policy view? on that question. There's
been a variety of different views about that,
but the executive order, my friend said, well,
prior presidents had no occasion to use the tariff
power, which is belied by the very executive
order he's defending here, which says that the
trade deficits have been large and persistent
every single quarter since 1976. And we've had
trade wars, President Reagan initiated different
ones and the use of different authorities, but
never won. did a president try and seek AIIPA
as the basis to rewrite the entire tariff code?
I found it interesting to hear you make the non
-delegation argument, Mr. Katyal. I wonder if
you ever thought that your legacy as a constitutional
advocate would be the man who revived the non
-delegation argument. Heck yes, Justice Alito.
I think Justice Gorsuch nailed it on the head
when saying that when you're dealing with a statute
that is this open -ended, unlike anything we've
ever seen, to give the president this kind of
power, yes, this isn't just delegation running
riot. This is delegation that's a legislative
attitude. Wouldn't you agree that statutes that
confer on the president real emergency powers
are often phrased much more broadly? than other
statutes. Isn't that the very nature of an emergency?
I know you dispute the fact that this is a real
emergency, maybe it's not, but isn't it the very
nature of an emergency provision that is going
to be more open -ended? So, Justice Alito, we
think it actually cuts the other way, as I was
saying earlier. That's what Justice Jackson said.
And, you know, you already confronted that in
Dames and Moore and said it's not that open -ended,
even though it's an emergency. And by the way,
other emergency statutes have very serious limits.
Section 122 is literally about President Nixon's
proclamation of an emergency. That's what it's
about. And it's limited 15%, 150 days. And what
about the authorization for the use of military
force in 2001, which gave the president the power
to use all appropriate force? That's pretty open
-ended. Would you apply the same non -delegation?
argument there that you do here? Of course not,
because there you have shared powers between
the President and Article 1 and Article 2 powers.
That's what I was saying. Well, it gets into
the question of whether it was delegated or not.
What was the scope of the delegation? Absolutely.
But there, you know, it's military. There's a
whole unique history behind that. But here you're
talking about something that is exclusively committed
to Congress and Article 1. And there, yes, when
you have delegations of, I would say, Justice
Alito, even when you have delegations in some...
military cases and emergency statutes, they have
all sorts of limits. So, 10 U .S .C. 2808 says
that in a declaration of war or a national emergency,
the President can, quote, undertake military
construction necessary to support emergency use
of the armed forces, but it has limits. I'm fascinated
that the two instances where presidents have
used their war powers to impose a tariff, Lincoln
and Nixon, that Congress found it necessary to
ratify their actions and that the court in both
those cases, the intermediate court of appeals
in Nixon and our own court, included that as
part of their reasoning as justifying the use
of war power in that situation. So I'm a little
concerned why the fact that this act, a domestic
act on emergency that uses a word, a general
word like regulate, should take on a war power's
meaning when in every other situation, whenever
Congress intended domestic tax taxation, it said
tax and regulate. Oh, Justice Ottemeyer, I wish
I had an hour to talk about this with you because
this is just this argument by the government
advanced in their reply brief is wrong, you know,
every which way. I'm saying that's another, that's
your sixth way of differentiating your CETA,
correct? So that was a war powers case. So it's
a war powers case about conquered territory.
It has nothing to do whatsoever with domestic
tariffs. And absolutely, you're right in saying
that the way that court, even in those cases,
even at the height of the government's power,
war powers, they said Congress had to ratify
it. And that's what page 96 is saying. That hasn't
happened here. That has not happened here, not
even close. Well, it might not with Congress
closed, but they can't even think about it right
now. I'm going to assume, and maybe he can shake
his head yes or no, that Justice Kapanor will
ask you to go to Algonquin, which you didn't
answer, and he's shaking his head. So I'll let
him do that part, OK? Excellent. Algonquin, your
honor, is under the - No, I'll let him do it.
Oh, sorry. That was his question, but I want
to make sure you get to it. We'll hear from Justice
Kagan first. I have one specific question, one
more general question. The specific question
is, does it matter in the way we think about
AIIPA, what Congress thought it was doing in
AIIPA, what AIIPA in fact did, that at the time
Congress thought it had available to it a legislative
veto. I do think it's relevant, at least for
delegation purposes, because, you know, as this
case comes to the court, the one check that was
in there, the so -called compromise, is a legislative
veto which now no longer exists. And that's why
I said to Justice Alito, this statute now looks
unlike any other statute with respect to... I
guess I'm wondering whether, though, it cuts
against you as well, that Congress thought it
had a legislative veto, so it didn't put in a
variety of checks that it might have put in.
had it not thought it had a legislative veto
and you know that's just tough luck on Congress
now. Yeah, I don't think so. I mean, Justice
Kagan, I think it's a very tough common sense
argument to make because every single delegation
of tariff power statute from Congress to the
president always has limits and including, you
know, Section 122 passed just right before AIPA
had in the case of the exact problem that this
executive order is dealing with, large and serious
trade deficits that said the way to deal with
it is 15%, 150 days. The idea that three years
later they just said, oh, no, junk the rule book,
I think, is very difficult, and no Congress,
I think, would rely just on the legislative veto
for such a thing of such momentous importance.
As you said to my colleague earlier, why would
any president look to all of the different tariff
statutes in Title 19 if you can just IEPA them
all, French Revolution them all? General Sauer
rests a lot on the President's inherent authority
and I want to make sure I understand your answer
to the Chief Justice and to Justice Alito as
to where you think that authority exists in a
way that actually would affect our interpretation
of a statute and where you think it doesn't and
why this falls into the second category. Given
that, in General Sauer's view, this is obviously
what the Chief Justice called foreign -facing.
Yeah, so it may be foreign facing, but there
is still no article to power whatsoever. There
is No citation whatsoever in the government's
brief to any notion that the president has article
two tariff authority. Now look, I will say in
wartime conquered territory, maybe, but this
is not a, this is not a wartime or conquered
territory statute. This is, or a use of the statute.
They are terrifying the entire world in peacetime
and they are doing it and asserting a power that
no president in our history has ever had. Even
justice Kavanaugh's example of Nixon. really
far more limited, didn't blow past Congress's
limits, as was said in Yoshida. This is a whole
different animal. And maybe Congress has that
power, as I agree with Justice Gorsuch. I don't
think that it does. But boy, they got to say
so really clearly. And here, there's nothing
like that in the text of IEPA. Thank you. Justice
Gorsuch. Well, I don't know if I agree with what
you say I say, but at any rate. Back to the plain
language, and just stick with me for a moment.
The Constitution says that Congress gets to regulate
commerce, and everybody understood that that
meant and included the power to tariff. Story,
Madison, okay? So that's sort of a problem, right?
Regulate is a capacious verb. And then you've
got the otherwise language as well, which we've
sort of discussed. And just on the plain language,
forget about the backdrop. Do you need major
questions to win? I kind of think you might.
No, I don't think so. I mean, if we did, I think
we'd win for reasons expressed. But I don't think
so at all. So Justice Gorsuch, our position is
not. that regulate can never mean tax or tariff.
Okay. Our brief at page 15 gives you an example.
A president may regulate cars coming in to the
city and then if it adds by charging tolls or
something like that, absolutely in context it
does. Here the context you're referring to, story
and so on, says nothing about this case. That
is the constitutional context about Congress's
use of power. But it's part of how we understand
language is used and And it's relevant for that
purpose. And then when you've got licenses, which
are economically the same thing, would you agree
they're basically economically the same thing
as tariffs? Sometimes they can be relatively
similar. Okay, so you've got something that's
economically identical to a tariff authorized
by this statute. Where does that leave you as
a matter of plain language? So let me take the
question in two parts. One is about the word
regulate, and the other is about licensing. With
respect to the word regulate, when it's used
in the constitutional sense, it's very different
than the sense in IEPA that my friend is asserting.
When we're asserting IEPA, we're talking about
a statute that is granting the president massive
powers. And so the relevant context that I think
you look at in asking the question, what did
Congress mean in 1977? The best context, the
most natural context, is what does Congress say
every time they grant the president such a power?
And then just one other point on this. Constitutions
are read totally differently. Story and Madison
are talking about the constitutional phrase.
And as Chief Justice Marshall said in McCulloch,
a constitutional expounding, the prolixity of
a legal code is the opposite of the way you read
the Constitution. I do follow that argument.
OK. What about otherwise, again? I just really
want to make sure I understand. You say that
there's a good reason why the Solicitor General
didn't make that argument. I'll be curious to
see what he has to say about that. But what's
your best reasoning why the otherwise language
doesn't exist? Because it's only a mechanism
to implement the nine powers. And that licenses
sometimes can be revenue raising and sometimes
not. So if licenses can be revenue raising and
you can do this otherwise through revenue raising
things, why wouldn't that capture tariffs? So
because I think, again, our point to you is that
That there's two kinds of licenses come in two
flavors. If an executive order is asserting a
license fee to recoup the cost of government
services or something like that, as I was saying
to Justice Alito, that doesn't look different
than the other verbs. That's not revenue raising.
It doesn't implicate the founder's concern. It
doesn't implicate the concerns you wrote about
in consumer's research about the fear of the
government. You're not answering my question,
though, Mr. Katcha. I'm talking about just the
plain text. And you're moving to major questions
or a non -delete. That's the move you're making,
which I think, you know, fine. We can consider
that. I'm just talking about on the text, okay?
It says by means of licenses or otherwise. You've
conceded that licenses are economically equivalent
to tariffs. And the statute says by means of
licenses or otherwise. Regulate. It's only a
means. Yeah, it's a means. Why isn't tariff a
permissible means on the statute? Because, again,
it has to be related to the nine powers. Well,
a license can be. We have to acknowledge that.
And you've said a license can raise revenue,
and you've said a license is equivalent to a
tariff economically. What about otherwise? Justice
Gorsuch, if the license or the otherwise is raising
revenue, then it is a difference in kind from
the other verbs. And we looked at the history
of licenses under TWIA, and we were not able
to find any involving licenses or license fees.
Okay. Last question. A little further afield.
The parties discussed a little bit the analogy
to the Foreign Commerce Clause. Of course, next
to it is the Indian Commerce Clause. and delegations
there were very broad initially, and involved
licenses once again. And why shouldn't that inform
our understanding of the Foreign Commerce Clause?
I don't know that I have a position on that.
It maybe is a little too a field for me to...
Well, if the President has broad authority in
one part of the Commerce Clause... Why wouldn't
he have him in the next door neighbor? Oh, I
see. Because here, Congress has specifically
been given the exclusive power over tariffs.
And so if they're to part with it, I think, as
this Court has said in J .W. Hampton, which is
a tariffs case. So you'd say the same principle
would apply with tariffs, with the Indian Congress
clause, is a tariff -specific argument. I think
it's at least the intelligible principles is
what this Court has used for tariffs specifically.
And we think that's the way you should look at
this. And then under intelligible principles,
this is miles away. from any delegation we have
ever seen. Thank you. Justice Kavanaugh. Just
on the Nixon point, because you said, I think,
that the current tariffs are unprecedented. I
mean, that was a 10 percent worldwide tax on
every import into the United States, I believe.
I mean, we don't need – I just think that's a
fact. You have arguments about that. You made
good arguments about that. But I just wanted
that point to be clear. On Algonquin. to pick
up on just sort of my worst kind assist. Your
argument here is that the statute has to use
the word tariffs, I think, basically. And we
went through Nixon and Yoshida, but then Algonquin,
the statute for 232 does not use the word tariffs.
It uses adjust imports. And President Ford had
imposed, again, a pretty significant tariff on
oil imports. It was a challenge. It got to this
court. The attorney standing where you are stood
up and said the license fee now before the court
involves the broadest exercise of the tariff
power in the history of the American Republic.
In fact, we would have to go back to George III's
stamp tax to determine as broad an executive
power is claimed in this case. The statute is
a simple one. It does not mention the tariff
on its face. The argument there was the word
tariff was not mentioned, used to just imports.
The Court obviously 9 -0 rejects that argument
in part because, as others have pointed out,
the Court does a lot of questioning. What's the
difference between a quota and a tariff? And
what's the difference between an embargo and
a tariff? And so when the Court writes the opinion,
it says we find no support in the language of
the statute, the language, for respondents' contention
that the authorization of the President to adjust
imports should be written to encompass only quantitative
methods, i .e. quotas, as opposed to monetary
methods, i .e. license fees, of effecting such
adjustments. So on your basic point that you
need the word tariff, Algonquin says you don't
need the word tariff. And that was President
Ford's oil imports. It's 9 -0. The oral argument
goes through this. Your answer. There's a lot
there, Justice Kavanaugh, so please bear with
me. First, I'd like to clarify what our position
is generally, and then deal with Algonquin. Our
position is not that you have to use the word
tariff or any other magic word. It's true that
Congress has used a specialized vocabulary since
the founding, since 1790, using words like tariffs
or duties. But as I was saying earlier to Justice
Gorsuch, you could even use the word regulate,
as page 15 of our brief says. Or you could even
imagine something that says, quote, the president
may regulate importation by requiring importers
to pay 10 % of the value of goods to the treasury.
So I don't think you have to use any particular
word. The question is, in context, is it does
it? Algonquin didn't have anything like that,
but keep going. So Algonquin does have, I think,
a context that's. miles apart from what the government
is seeking here to do with IEPA. So first of
all, it is a common sense statute. I understand
there's some rhetoric by, common sense reading
of the statute. I know there's some rhetoric
by the lawyer who stood here before, which is,
of course, forgivable. But it was a statute about
one product. 232 is article by article. It's
one product. This is a billion products or even
more that the government is seeking. The Algonquin
was expressly a trade statute. It was the 1962
Trade Act. It's everything this case isn't. Algonquin
had a specific reference to the word duties in
a separate provision. Algonquin had a legislative
history that was clear as day that the president
was given this power. And I understand this court
today doesn't look to legislative history, but
the way Algonquin got to where it was was by
saying the legislative history, the chief sponsor
of the act. I think I'll disagree with you on
that. It does a plain text and then says, is
there anything in the legislative history to
defeat the plain text? So I disagree pretty strongly
with you on that, but it doesn't defeat your
point. Keep going. Okay. So I'd also say in the,
maybe the most important point. Our argument
is not just that you have to specifically authorize
a tariff with some sort of word, but also that
one way of understanding whether Congress is
delegating its awesome It's awesome taxing powers
to ask, are there limits to what Congress has
put in? And in Algonquin, in section 232, the
court points to and goes painstakingly through
all the limits. The first words of the decision
are all about how constrained the statute is.
It's a reticulated scheme. The cabinet secretaries
have to make certain findings. There are specific
statutory factors Congress says the president
must look at before acting. There are public
hearings. There are limited to the extent necessary.
All of that is in the statute. All of that is
in the Algonquin opinion. None of it is in AIIPA.
That's the problem. And that's why, just like
Dames and Moore, the Algonquin case said this
is a very limited decision, limited just to the
facts. Thank you. Justice Barrett. So this license
thing is important to me. And do you agree that
pursuant to AIIPA, the president could impose,
could regulate commerce by imposing a license
fee? Sorry, could you say that again? Could the
President regulate commerce under AIIPA? by using
a licensing fee. Not a fee. So I should have
said this earlier, but license is different from
a licensing fee. AIPA and TUIA authorize licenses,
not license fees, and no president is ever charged,
to my knowledge, fees under those two statutes
for the licenses. So fees impermissible, licenses
okay. Fees permissible if they cover the costs
of... The scheme might be might be. I mean, but
but once they start revenue raising, you implicate
the most serious concern. But I thought you conceded
a justice score such there was no difference
between a tariff and a licensing fee functionally
if. If the licensing fee is just to recoup the
cost of government services, I think that may
be okay. I don't think you need to get into it.
Here, the government is asserting a power which
they say, in their briefs to you, raises $4 trillion.
So you understand the statute to permit licensing
in the sense of permission. Like, we will not
allow you to trade with us. We will not allow
your goods to be imported unless we license it.
Absolutely. And, Justice Barrett, I think, like,
just the natural reading, if you're to look at
the word licenses and think, wow, Congress smuggled
this incredible power to do all of these different
things that the government is doing here, 39
% taxes on some countries and others, through
the word license, that's a tough one. Can you
license exportation? I don't think so, for the
reason that, you know... Well, right now, I actually
looked into this. I mean, I think you're maybe
not licensing fees. Exactly. But could you license
exportation, like saying we're not going to allow
certain products that have national security
implications to be exported? Yes. So licensing
could be used in that sense, not as a revenue
aging... Yes. Okay. So you went back and forth
with Justice Korsuch about the implications of
the president's authority over foreign affairs
and whether the major questions doctrine applies.
You say that in IEPA, the president's war powers
are not implicated. And that was part of the
reason why you say that we should think of this
differently than some of the historical examples
where the commander in chief power, war powers,
were implicated. But the same language appears
in the Trading with the Enemies Act. in which
war powers would be implicated. So do you think
that language should be, and of course, that
is what President Nixon relied on. So do you
think that the language would be interpreted
differently in that context, even though the
commander -in -chief power and the war power
would be implicated? A hundred percent, I think
it would be interpreted differently. The same
regulate commerce language. Yes, because once
you're talking about... Carrying over wartime
precedents to peacetime for I don't understand
that then because everybody agrees the language
came in IEPA came from the trading with the enemy
act So you're saying it has one meaning in the
Trading with the Enemy Act and a different meaning
in IEPA, that same regulate commerce? No, I think
that the conquered territory language and all
of that may go to the president's Article II
powers as inherent powers in conquered territory,
but I don't think it gets the government where
they need to go. The CAC brief and the brief
by Professor Paul Stephen goes through and explains
why in 1933, when Congress decided to bring these
concepts into peacetime, it severed the wartime
roots. And there's an extensive legislative history.
OK, I understand that. But I thought that was
about maybe I'm just not tracking. I mean, I
think there's been some discussion of whether
the president would have inherent Article II
authority in wartime to impose tariffs to this.
Is that what you're talking about? Are you actually
talking about a statute that said regulate importation
in wartime? And you think it could have the tariff
power conferred through that language in a war
-making statute, but not an IEPA? No. I don't
think it confers it in either place. I think
the president and the, it's located the president's
power in conquered territories, not in the trading
with any exact or anything like that. So it's
inherent constitutional power coming from the
law of war. Okay. And then if, if you win, Tell
me how the reimbursement process would work.
Would it be a complete mess? I mean, you're saying
before the government promised reimbursement,
and now you're saying, you know, oh, well, that's
rich. But how would this work? It seems to me
like it could be a mess. So the first thing I'd
say is that just underscores just how major a
question this is, the very fact that you were
dealing with this with quotas. There's no refund
process to the tunes of billions of dollars or
embargoes, but there is here. But for our case,
the way it would work is, in this case, the government
stipulated for the five plaintiffs that they
would get the refunds. So for us, that's how
it would work. Your question, I take it, is about
everyone else. We don't have a class action or
anything like that. With respect to everyone
else, there's a whole specialized body of trade
law and it's in 19 USC 1514 outlines all these
administrative procedures. It's a very complicated
thing. There's got to be an administrative protest.
There was a harbor management case earlier that
this court was involved with in United States
shoe in which, you know, the refund process took
a long time. There were any number of claims
and equitable release. So a mess. So it's difficult,
absolutely. We don't deny that it's difficult,
but I think what this court has said in the McKesson
case in 1990 is that serious economic dislocation
isn't a reason to do something. Northern Pipeline,
you guys staged your decision for a while in
order to let the congressional process unfold.
There may be a congressional process here as
well. You may be able to also... be that this
court could limit its decision to prospective
relief under the John Q. Hammond's case. So there's
lots of possibilities. Justice Jackson? So I
think I read Algonquin differently than Justice
Kavanaugh. When I look at its analysis, it absolutely
does a textual review. But then it says, quote,
turning from Section 232's language to its legislative
history, again, there is much to suggest that
the president's authority extends to the imposition
of monetary exactions. And I appreciate that
perhaps that factor is no longer in vogue, but
did you look into the legislative history here
to determine whether there is anything that supports
the conclusion that Congress actually intended
for this AIIPA statute? to allow or authorize
the president to. impose these tariffs. I did
and if I blinked I would miss it because it was
virtually nothing and in fact both page two of
both the House and Senate report outline all
of the powers that are given under AIIPA and
none of them have tariff. There's one brief mention
of tariff in the legislative history but nothing
else. And by the way AIIPA passed by voice vote.
There was not controversial. We don't deny AIIPA
is a big major statute, but the question is,
did it authorize tariffs? One of the most contested
things since our founding. And you say there's
nothing in the legislative history to suggest
it. Now, to the extent that Congress did authorize
the president to do something, that those verbs
are there, that the Congress was giving the president
some authority, Do you see a theme connecting
those verbs? What was Congress trying to do?
And let me just say that I see in the Senate
report, which I mentioned earlier, that Congress
says that it was trying to give the president
the authority to, quote, control or freeze property
transactions where a foreign interest is involved.
And that seems to dovetail with the verbs that
are being used in the statute. But what's your
view of what Congress was trying to do with this
legislation? That's exactly right. The responding
to all sorts of foreign policy emergencies and
foreign threats, and they're giving the president
economic sanctions power. So what does the word
regulate importation do under that framework?
If we understand that Congress was trying to
give this kind of embargo authority in the time
of an emergency, when it says regulate importation,
what was it envisioning? It was envisioning all
the things that the president since 1977, going
back to Justice Kavanaugh's question, have used
it for. So they've used it for quotas, like limitations
on the number of goods. They've used it for screening
and reporting requirements, like Executive Order
12284 about reporting property of the Shaw. And
they've used it for standards, like domestic
safety standards, environmental standards, labor
requirements. They've used it for embargoes.
So all of those are things that I think Congress
had in mind in IEPA. And I think the proof of
this, that it's not this massive statute that
allows the government to do anything, is Dames
and Moore itself, because this court rejected
the idea that regulate includes the claims extinguishment
that was at issue in that case. It's a much more
limited statute. And Justice Jackson, there was
a predecessor, Justice Jackson, who said, you
know, that quote, for all its defects, delays,
and inconveniences, men have discovered no technique
for long preserving free government except that
the executive be under the law and that the law
be made by parliamentary deliberations. Such
institutions may be destined to pass away, but
it is the duty of this court to be last, not
first, to give it up. And I take it my friend's
argument on the other side is in deep tension
with Youngstown and that canonical principle.
Thank you. Thank you, counsel. Mr. Gutman. Mr.
Chief Justice, and may it please the court. I'd
like to begin by picking up with the exchanges
with Justice Barrett and Justice Gorsuch about
licenses and license fees. Because I think we
ended on the right note, but I just wanted to
make sure that at least my client's position
is clear on this. Licenses are different from
license fees. And I am not aware of any history
in the five decades that IEPA has been in force
of any fees charged for the licenses under this
statute. Licenses can be used, for example, the
president might ban certain transactions with
a foreign country, but then grant licenses to
do them for humanitarian reasons. But as far
as I'm aware, there's never been a fee charged
for that. And I do welcome the Court's questions.
But I think that's, I just want to make absolutely
clear. I think the question is, what does or
otherwise do? Well, or otherwise could be things
like instructions or licenses. But again, it's
fundamentally, having something that is a revenue
raising measure or even that is just an exaction
of some sort is fundamentally categorically different
from what we understand instructions and licenses
to be involved, just like we think regulate doesn't
carry the financial connotation given the other
verbs there. If I could turn to some of the 19th
century history that we were discussing as well,
because I think there may be a little bit more
to add there. The 19th century cases about the
president's inherent Article II authority in
a wartime with respect to importation is not
the power to impose tariffs on imports coming
into the United States. That is not what any
of those cases were about. They were about the
president's power in a wartime as an occupying
military force to impose tariffs in occupied
territory, that would be in Mexico, in the Philippines,
in California. The Civil War case might be the
closest case, but even there, what we were talking
about were essentially, there were licensing
fees, but they were export fees. They were fees
that were being imposed on the exportation of
cotton from the occupied south into the north.
And so I don't think any of that provides authority
for this general notion that there is a background.
Principle that the president even in wartime
has an article to authority to impose tariffs
certainly without the consent of Congress You
agree I assume given all the verbs on this list
that the president could do something like just
shut down all trade Between us and say, you know
China, right? Yes, I mean there are other limitations.
Okay, so doesn't it seem and I think this is
one of the points that Algonquin makes, and I
think it's a point that Justice Kavanaugh was
making, doesn't it seem then, I mean, I don't
want to use the phrase lesser power, lesser included
measure, but doesn't it seem like it would make
sense then that Congress would want the president
to use something that was less, weaker medicine
than completely shutting down trade as leverage
to try to get a foreign nation to do something?
And the president can in the form of, for example,
quotas, but what makes an embargo or quotas fundamentally
different from tariffs, as my friend has already
explained, is the revenue raising aspect of that.
That makes it a far more significant power. It
creates additional danger of overuse. And I think
the other point, as Justice Jackson was pointing
out, is that it cedes control over whether the
transaction occurs from the government to the
individuals engaging in this transaction. And
that is not what AIIPA is intending. What makes
something revenue raising? I mean, fees. Raise
money and unless they're gonna be kind of one
-to -one. This is exactly what it costs I mean
it might raise some surplus it might raise some
raise some extra So is it the purpose if the
purpose of the fee or the tariff is to raise
money? Is it the purpose that makes it revenue
raising, or is it just the fact of surplus created
that goes to the Treasury? How do we decide?
Yes, I think it's the effect. And to be clear,
I think there would be a serious difficulty with
interpreting any of these words, even to allow
revenue -neutral exactions here. Because none
of them involve, and again, as far as I'm aware,
IEPA has never been used in that way. Not even
a processing fee? I am not aware of any use of
that sort of under AIIPA, but even if that is
permissible, I think that's permissible precisely
because it doesn't have the effect of raising
revenue. Mr. Katyal referred to common sense
several times, and I want to pick up on Justice
Barrett's question, because your interpretation
of the statute, as she pointed out, would allow
the president to shut down all trade with every
other country in the world. or to impose some
significant quota on imports from every other
country in the world, but would not allow a 1
% tariff. And that leaves, in the government's
words in its brief, an odd donut hole in the
statute. Why would a rational Congress say, yeah,
we're going to give the president the power to
shut down trade? I mean, think about the effects.
But you're admitting that power's in there. Yeah.
But can't do a 1 % tariff. That doesn't seem,
but I want to get your answer, to have a lot
of common sense behind it. I think it absolutely
does, because it's a fundamentally different
power. It's not a donut hole. It's a different
kind of pastry. And on that power, that's a good
one. On that power, though, And you've said this
many times, Mr. Katyal, too. And look, I get
this, obviously. But the court has repeatedly
said a tariff on foreign imports is an exercise
of the commerce power, not of the taxation power.
And I'm repeating some, but John Marshall said
that, and Joseph Story, and Chief Justice Hughes
in the 1933 case. And we've said that quite a
bit of time, which seems to at least undermine
a bit your point that it's an entirely different
power, because if it is foreign commerce power,
it's the same power that Justice Barrett was
talking about of just embargoing trade with the
entire world, which you admit is in this statute.
Well, there are a couple of points in there,
and I'll try to get to all of them, but... I
mean, I think all of us agree that context is
what matters here and that you certainly could
use the word regulate to talk about a tariffing
power, like you could use it to talk about a
taxing power. I mean, we impose taxes for regulatory
purposes as well. But the federal government
hasn't identified a single other federal statute
that uses the term regulate to authorize tariffs
or taxes. That is just a different kind of power.
And I thought your point in response to Justice
Kavanaugh, it's a different kind of power because
the power that's being authorized by this statute
is the power to control or freeze trade. That's
what Congress was getting at. And so if that's
true, then we have to re -regulate in that context.
That's exactly right. And I think the reason,
getting back to common sense as to why a legislature
might authorize that, is that you might not fear
abuse of that power in the same way that you
would be concerned about abuse of a power to
impose unlimited taxes with sort of no controlling...
Well, why is that? Because, I mean, there is
a sort of commonsensical intuition that one is
in Justice Kavanaugh's example. that one is greater
and one is lesser. So why is that not right?
Because to be blunt about it, one of them there's
something in it for the government and one of
them there isn't. Actions that bring in revenue
from the pockets of taxpayers to the Treasury
pose a different set of concerns. Our framers
were very concerned about that. A different set
of concerns how? Why? Because they bring in revenue.
And because that creates a... Well, that seems
a little tautological. Why is it that the revenue
raisers are in a different category? Because,
look, if there is some sort of international
emergency and the appropriate way to deal with
it is to make sure that no more than a thousand
of this product comes into this country at a
particular time... This statute gives the president
the power to ensure that exactly no more than
1 ,000 come in at this time. Setting a tariff
doesn't ensure that only 1 ,000 will come into
this country. It cedes control over whether the
transaction occurs, and what it does is it then
adds revenue to the treasury and that is again
something that our framers thought was extremely
important and a core article one. But Algonquin,
I mean this kind of goes back to Justice Kavanaugh's
point, Algonquin rejects the idea that it was
impermissible to use the fees and we can call
them license fees that functioned as tariffs
or duties in that case, whatever. But Algonquin
said that Congress could use the exaction of
money to control quantity. And I hear what you're
saying is like, well, you can control quantity
by numbers by imposing hard limits, but not by
money. But that's not what Algonquin said. So
I guess why? Well, and I don't mean to suggest
that you can't use exactions to control quantity.
I think Algonquin just shows the importance of
context. It might be perfectly natural to read
a phrase like adjust imports. In the context
of a statute that talks about tariffs, in the
context of the Trade Expansion Act that has all
sorts of provisions about tariffs and about the
President adjusting tariff rates, it might be
perfectly natural in that context to read a phrase
like adjust the imports to be referring to changing
tariff rates. It's just as unnatural to read
a phrase like regulate importation to discuss
that when the statute has nothing to do with
tariffs and doesn't otherwise mention tariffs
at all. Do you think that just blocking all trade
is a bigger deal than imposing a 1 % tariff across
the board? I think it would be a huge deal. It
is just a different kind of deal. Algonquin was
not a constitutional case, right? Correct. It
was a statutory interpretation case. Correct.
And so the question there was simply, was Congress
actually... trying to give or did Congress in
that statute give the president the authority
to impose these kinds of exactions? And the court
looked at the text, and it looked at the legislative
history in which there was a number of clues
that Congress had actually intended to do that.
Yes. Yes. And it looked not just at the text
of those specific words, but also the context
of what else was in the statute and some of the
factors that the president was supposed to be
considering. And it would make perfect sense,
I think, in a time of emergency, for many of
the reasons that General Sauer pointed out, that
Congress would want the president to have the
kind of authority that is imposed when you are
embargoing things, when you are stopping the
trade, when you are saying, you know, for emergency
reasons, we're not letting any of this product
come in. I mean, sure, that's a big deal, but
the nature of it makes sense in terms of an emergency.
I think what you're saying is that the idea that
the government would use its authority to be
raising revenues in this situation is a different
kind of power. Exactly. Is this a statute about
giving the president control over assets, over
transactions, over access to banking? And tariffs
don't do that. You said something about tariffs
in fact cede control over those sorts of things.
So they sort of undermine the goals and the purposes
of this kind of statute. Is that right? Yes,
that's exactly right. From what you've said,
it seems, and you said this, that the reason
for drawing a distinction between tariffs and
an embargo is the suspicion that tariffs will
be used to raise money and therefore to circumvent
Congress's power to control taxes. So it's a
question of the risk that's involved. Am I right?
That's what it boils down to. Yes. Well, and
it's a question of understanding what Congress
would have thought, what powers Congress would
have thought it was conferring. Would Congress
have understood the phrase regulated? Well, I
mean, the question is why would Congress say
you can impose a quota, you can impose a ban,
but you can't impose a tariff. And your answer,
I gather, is because when a tariff is imposed,
we're suspect about what's going on. We're suspicious
about what's going on. We think that what the
government is trying, what the executive is trying
to do is to raise revenue, and that's our business,
right? That's what it has to be. Yes, and we
know that every other time that Congress has
authorized the president. Well, that's a, you
know, you're getting into a different argument.
Then, would you say the same thing if the measure
is really about an emergency, an undisputed emergency
and a really dire emergency? There, would you
have the same suspicion? Yes, absolutely. And
again, I'll refer back to Justice Jackson's concurrence
in Youngstown that emergency powers tend to breed
emergencies. Look, Biden versus Nebraska, I think,
says very clearly - I really don't think you're
answering the question. The question is, would
you have the same suspicion when it is perfectly
apparent from context that what - the president
is trying to do is to achieve a goal other than
the raising of money. I think what I'm trying
to say is that you have to read the statute the
way that Congress would have understood it when
it was enacted, not how it is used in any particular
case. It may be used for very good reasons in
a particular case, but the question is would
Congress have understood itself to be ceding
this power with no limits, unlike every other
tariffing statute with no limits. All right,
I know that point. Let me ask you an unrelated
question. Mr. Katyal listed some of the things
that presidents have done under IEPA, such as
screening imports. Do any of the other verbs
in IEPA talk about screening? Could screening
of imports be done under any of the other verbs
in IEPA? I think maybe, but it would have been...
Which one? Prevent. And so I think the question
would be... Screening is preventing? Well, I
think it depends what you're screening for, but
if you were... Okay, how about imposing domestic
requirements that promote... that are needed
to safeguard domestic safety. Any other provision
besides regulate? Any other verb besides regulate
that would... Well, again, I think if we're talking
about... potentially blocking some property from
coming into this country because of safety concern,
it might be that prevent would have gotten you
there. What I think Regulate does is it clarifies
and amplifies that it can be nuanced in that
way. It can say we will let this come in if it
has certain safety requirements, if certain features
have been disabled, something like that. So I
think Regulate harmonizes with prevent, investigate
during the pendency. block during the pendency
of an investigation, those sorts of... On the
context point, the context of this statute, what
Congress would have understood, it's an emergency
statute. And presumably Congress wants to give
the President tools to respond to the emergency
in an appropriate way. And it seems odd to imagine
a meeting in the Oval Office where the President's
told Well, we have a problem with, I won't name
a country, but country X, and you can stop all
trade with that country. I'm not sure that's
a wise policy to give that much, but it's there,
right? You agree it's in this statute. But then
the president says, well, that's too extreme.
I want to calibrate my response to deal with
this and maybe a tariff of some kind. Like, oh,
you can't do that. So you're forcing the president
to respond to an emergency. And, you know, Justice
Alito has raised the point about, you know, a
real emergency. And you're taking away the president's
suite of tools when the one is much more extreme
that is authorized. That just seems a bit unusual.
You know, think about India right now, the terrifying
India, right? That's designed to help settle
the Russia -Ukraine war. As I understand it,
don't pretend to be an expert. But if that's
gone, that's a tool that's designed to talk about
foreign facing the most serious crisis in the
world. And that's out the window. So I just think.
It's just contextually emergency. It's just a
bit unusual to read it that way. I take your
response, taxation's different, and you've got
to stick with that line. No, and I don't think
it's just that. I mean, I do think it's that.
But it's also that there are a range of tools
that are more calibrated that the president can
do. It doesn't have to be a complete embargo.
It could be limits on particular kinds of products.
It could be quantity. I get it. But in the history
of trade. trade efforts to respond and push back,
you've taken one away. Well, and the President
and there are many other statutes that might
apply depending on the exact circumstances, 201,
301, 232. Council, I think what we're forgetting
here is a very fundamental point, which is the
Constitution is structured so that if I'm going
to be asked to pay for something as a citizen,
that it's through a bill that is generated through
Congress and the president has the power to veto
it or not. But I'm not going to be taxed unless
both houses, the executive and the legislature,
have made that choice, correct? That's exactly
right. And so there is something, it's not just
the taxing power, qua taxing power. The question
is, do we permit the president to use the taxing
power to affect his personal choices of what
is good policy for me to pay for. That's exactly
right. The question is who decides. Who decides
under what circumstances. Now, with respect to
this, I'm not even going to the pretext argument,
okay? But the president threatened to impose
a 10 % tax on Canada for an ad it ran on tariffs
during the World Series. He imposed a 40 % tax
on Brazil because its Supreme Court permitted
the persecution of one of its former presidents
for criminal activity. The point is, those may
be good policies, but does a statute that gives
without limit the power to a president to impose
this kind of tax, does it require more than the
word regulate? Exactly. That's your point. Yes.
Thank you, counsel. Did Mr. Katyal say anything
this morning with which you disagree? No, I think
we cleared up any, maybe, potential disagreement
about licensing fees, but I think we all agree
on that. Okay. Justice Thomas? Yes. Anything
further? Just Kate? So I just want to follow
up on Justice Sotomayor's question at the end
of a long morning, afternoon. It does seem to
me, and tell me if I'm wrong, that a really key
part of the context here, if not the dispositive
one for you, is the constitutional assignment
of the taxing power to Congress, the power to
reach into the pockets of the American people.
is just different, and it's been different since
the founding and the Navigation Acts that were
part of the spark of the American Revolution,
where Parliament asserted the power to tax to
regulate commerce. Some of those were revenue
-raising, some of them didn't raise a lot of
revenue. We had a lot of pirates in America at
the time. And Americans thought even Parliament
couldn't do that, that that had to be done locally.
through our elected representatives. Isn't that
really the major questions on delegation, whatever
you want to describe it, isn't that what's really
animating your argument today? I think it's a
huge piece of what's animating our argument.
Thank you. Ms. Cavanaugh. Mr. Jackson. Can I
just invite you briefly to address your kind
of second tier arguments? Assuming that the president
can impose these sorts of tariffs. Why do you
think, for example, that the trafficking tariff
here does not deal with the drug trafficking
emergency for the purpose of this analysis? So
it doesn't deal with it because it's not a sanction
imposed against traffickers. If you think of
it as a sanction, it is a sanction imposed against
people importing lawful goods in the home. Doesn't
that indirect, that happens all the time, right?
I mean, all the other authorities indirectly
provide leverage on countries in this way. I
don't think so. I think that they are, uh, the,
the history of, of IEPA and even of TWA is imposing
sanctions directly on the wrongdoers. These are
statutes about providing sanction authority against,
against international actors whose behavior we
want to change. And that's not what tariffs are.
Alright, thank you. Thank you, counsel. Rebuttal?
General Sauer? Thank you, Mr. Chief Justice.
Just three points. One, an interpretive point.
The statutory language here is regulate importation,
and again, by means of instruments, licenses,
or otherwise. Their argument is that that phrase
carries with it a whole host of unenumerated
forms of regulation, including quotas, licenses,
licenses apparently that come with fees, as long
as they're sort of profit neutral fees, environmental
restrictions, qualitative restrictions, reports,
and so forth. It's just that the one form of
regulation that they would not include is tariff
regulation, which of course is the quintessential
most historically tested method of regulating
imports. And so that additional phrase about
by means of instruments, licenses, or otherwise
really sort of reinforces the plain meaning,
the ordinary natural meaning of regulated importation
here. So when it comes just to plain text of
the statute, their argument is a donut type argument.
And it's not an argument that does justice to
the statutes of plain text. On the non -delegation
point, Justice Gorsuch, you alluded to the founding
of our delegations of the Indian Commerce And
I just remind the court that in July of 1790,
Congress passed a statute that essentially delegated
to President Washington essentially the entire
scope of the Indian Congress power. He said,
you can do. Commerce with Indians, if you have
a license that you had to pay a fee for. And
that will be subject to such rules and regulations
as the president makes with no further guidance.
So when it comes to this foreign facing there,
it's obviously analogous because the Indian tribe
is not foreign sovereigns. But this foreign facing
situation, we have a very sort of deep and profound
historical pedigree who brought delegations of.
the regulation of commerce, the foreign commerce
power, in that case, the Indian commerce power.
And that ties, I think, to what I take to be
the main theme of the arguments on the other
side. And I think that Mr. Catchell started by
saying, tariffs are taxes. And I want to complete
the answer I think I was giving to the Chief
Justice when I got interrupted, is if you look
at these tariffs, these policies, It is clear
that these policies are most effective if nobody
ever pays the tariff. If it never raises a dime
of revenue, these are the most effective use
of this particular policy. And I said there's
two buckets there. One is, first of all, when
it comes to the trade deficit emergency, if no
one ever pays the tariff but instead they direct
their consumption domestically and spur the creation
of the rebuilding of our hollowed -out manufacturing
base, that directly addresses the crisis. It's
more effective. If no one ever pays the tariff,
that's the point of it, really. That's a fundamental
point of it. And that's one piece of these. And
then as to both of them, as to both of the declared
emergencies, the tariffs are an incentive, a
pressure point, leverage, bargaining chip, as
the court said in Dames and Moore, to get countries
to change their behavior to address the foreign
arising emergencies. So if you look, for example,
at, to take a historical example of last week's
trade deal with China, it unlocked access to
rare earth minerals, which of course have a critical
national security asset respect to them, and
it got China for the very first time to change
its policy with respect to fentanyl precursors,
which is a crucial piece of that. those tariffs,
if no one ever collects them, but the threat
of imposing those tariffs gets China and our
other trading partners across the world to change
their behaviors in a way that addresses this,
then that's the most effective use of the policy.
So they're clearly regulatory tariffs, not taxes.
They're not an exercise of the power to tax.
They're the exercise of the power to regulate
foreign commerce. And that's why the statute
says regulate. It doesn't say tax. It says regulate.
And for that reason, we are squarely within the
tradition that I was talking about before of
very broad, historically very broad, delegations
of the power to regulate foreign commerce to
the president because he has inherent authority
in the area of foreign affairs, although not
that. It has to be delegated to him, otherwise
the delegation would be superfluous. And for
all those reasons, we ask the court to reverse
both the decisions below. Thank you, counsel.
The case is submitted.