Are Trump’s Tariffs Lawful?

On November 5th, the Supreme Court heard oral arguments in learning resources versus Trump and Trump versus VOS selections. A pair of challenges to President Trump's tariffs. Hello friends, I'm Jeffrey Rosen, President and CEO of the National Constitution Center, and welcome to We The People, a weekly show of constitutional debate. The National Constitution Center's a non-partisan nonprofit chartered by Congress to increase awareness and understanding of the Constitution among the American people. This week we'll recap oral arguments in the tariffs cases and explore the arguments on all sides. And to help us, we have two of America leading scholars on foreign relations law and executive power. Samuel S. Reicher is the Dwight D. Opperman, professor of public law, the director of the Center for Labor and Employment Law, and the director of the Institute of Judicial Administration at the NYU School of Law. He's author of more than a dozen books, including Beyond Elite Law, access to civil justice in America, and he joined us for our preview of the tariffs case a few months ago. Sam, it's wonderful to welcome you back to We The People. Thank you Jeff. Great to be here. And John U is the Emmanuel Heller Chair in Law at the UC Berkeley School of Law and the Distinguished Visiting Scholar in the School of Civic Leadership at the University of Texas at Austin. He's most recent book, The Politically Incorrect Guide to the Supreme Court was published in 2023. John is always wonderful to welcome you to We The People. Jeff, great to be with you. And as always, I'll do anything for the Constitution Center because it's in the best city in the world, Philadelphia. And it is always sunny in Philadelphia. Well, let's jump right in. We heard the oral arguments yesterday. Sam, what was your reaction to the oral arguments and how did you see the justices evaluating the three major legal issues in the case, the statutory question, the major questions doctrine and the non-diligation doctrine? Well, first on the quality of the argument, I didn't think this list of general did a very good job. He introduced the notion of inherent power, which I think is a red herring that the president has inherent power to impose tariffs. That's completely inconsistent with the legal tradition from the, it wasn't necessary to his argument. So it was a red herring. And I don't think he did a good job of counteracting the assumption of all of the justices, apparently all of them, that what's going on here is really a tax. That's debatable as an economic matter. He did say that the tariff, the tariff might not be necessary. People might change their underlying behavior. But he should have pushed harder against that tax point. Because from my sense of the argument, many of the justices, maybe all of them, enough to create a court, were buying this notion that what's going on here is a tax. And if it's a tax, is this sort of special history that we have of Congress? Well, Congress does have the, the say in imposing taxes. But I assume it can also delegate it. But I'm not sure, so I'm not sure about that point about the delegation of the tax power. But he should have put back on the fact that it's not a tax. Whether or not US consumers are affected, really depends, for example, I'm not a trade lawyer. But it depends on what the economists call the elasticity of demand and on whether there are alternatives for the tariff product. So I mean, it should have been pushed back by this guy. My sense overall of the argument, and I don't know what John's position is on this. I think the, I've been writing about the reliance on the IEP, the Internal International Economic Emergency Powers Act. I think the statute is very problematic because I think it raises very serious non-delegation problems. And we can see in the way in which the justice is struggling to come up with some statutory argument for withholding the authorization, for reading IEP as not authorizing the tariffs. So my sense is, again, I don't usually like to make short term predictions. I'm very good at predicting what's going to happen 30 years from now. But my sense is there is a court for doing something to block these tariffs. I'm not sure what it is. Some possibility is they're going to say IEPA doesn't apply, but there may be other tariff authorizations that do apply. And the Section 338 of the Smooth Holy Act, it's not called that, but the 1930 Trade Act. And also Section 222, and they have the number wrong. There may be other authorizations. So they may say, Mr. President, you don't have authority on IEPA, but you may have authority under these other tariffs. Now, theoretically, I'd like to know what John's view is on this, but theoretically, just because the president cites only to IEPA, doesn't mean that the court can't evaluate the tariffs under these other sources of authority. Sometimes, we do hold that if you didn't make an argument, then you can't make it now. So that's a possibility. I think we'd warrant a remand. It's a pretty important decision. So I think the court might be interested in that. They're going to find some way, I think, of blocking the tariffs in large part, because, I mean, for a bunch of reasons, one is that President Trump has been very erratic with respect to these tariffs, raising them in some places, lowering them in other places, and talking about the revenue output he's getting, which is, you know, there's been saying from World War I, loose lips, sink ships. And my sense is the president, by being candid here about the revenue he's getting for the U.S. people supposedly, is making stronger the argument that this is really a tax. So for a variety of different reasons, as I heard the argument, he may have some votes with Justice Thomas. And I don't think he has Justice Gorsuch, but Justice Alito and Justice Thomas, I think he has. But in order for the president to win, he has to have the chief and Kavanaugh or Barrett or Gorsuch. I think Gorsuch is concerned about delegation. He's made that clear in prior decisions. So he's going, I think, going to have trouble with this statute, because to my mind, our study, it is the broadest delegation Congress has ever provided the president, whether wartime or peacetime. It has, firstly, no limits, except that you have to make a declaration that it's an unusual threat. But it's not clear that it's just dischable. That's traditionally renewable. So it has no limits, which is why I think I'm working on a paper with another, I call author. Andrew Babick, there is a problem if I eat that generally, not just in the tariff area, but also in the economic sanctions area. There are just no bounds to the discretion the president has. Historically, I think Congress was comforted by the fact that in the National Emergency Act, which was enacted the year before IEPA, that there was a legislative veto. So if they wanted to, they could correct what the president is doing by one or two house veto. Right now, that veto, that veto provisions on constitutional, it's not in the statute anymore. Congress amended the statute to say that a joint resolution works, but a joint resolution also can be vetoed by the president. So right now, we're in a situation where the president has authority under this, I think unbounded statute. And it would take a veto-proof majority of both houses to overturn the president. I say this as an executive power fan advocates. I believe in strong executive power, but this statute basically says that the president can do it. Essentially, whatever he wants, he just has to close it in the language of an unusual threat to national or welfare, whose source is in part from outside the United States. So I think the delegation concerns is one strand that goes against the president. Another strand is this tax argument, which has been abetted by the president's brandishing of the revenue enhancement effects of what he's doing. You know, I don't think it's a tax. I don't think it should be viewed as a tax, but I think the fact that a lot of people around in the court think it is a tax that are going to be willing to require some very clear evidence in the statute authorizing the president to impose tariffs. The third strand is the major questions doctrine. I think the chief is open to it. And even though in theory, the major question doctrine has been invoked only in the context of administrative agencies, I did a piece on this in Texas. I think it can be invoked against the president as well. Now the major question doctrine up until now requires that it be a novel use of the president's power. An unheralded, I think, is the language use of the president's power. So this goes back to how do we treat the Nixon president? Those are the three strands. The president's statements, the delegation concern, the major question doctrine. - Thank you so much for that introduction. John Sam has identified these three areas, the statutory argument and the question of whether or not this is a tax, the non-delegation doctrine, where he says that there is no foreign affairs exception to the non-delegation doctrine and you've argued that there may be such an exception and the major question doctrine. Walk us through each of those arguments and how you think the court was inclined to rule. - Thanks, Jeff. It's great to be with you. Thanks, it's great to be with Sam, my friend, for many years. And first on the statutory question, I think it breaks down into two straightforward issues. One is, is there, in fact, an unusual and extraordinary threat to the national security and foreign policy in the economy of the United States? For that, the only one that exists, do you then get to the second question, which is, what can the president do under the IEPA statute? All of this is, of course, about who, power granted to the president by Congress. The president doesn't have any inherent constitutional authority as Sam has observed, two imposed tariffs or taxes or regularly international commerce, at all, that's all explicitly given by the Constitution to Congress. So on the first question, I heard some justices, I think most notably Justice Gorsuch, question, whether this is a fact in national emergency. I too have raised doubts about that because the trade deficit has been with us for 50 years now and if you look at its size as a percentage of GDP, it's the same size now as it was 20 years ago. So it doesn't seem to be something that's happened, all of a sudden, it doesn't seem to be something whose magnitude as a threat to the country has suddenly increased. It doesn't seem to be germed by any specific event that's occurred. And Justice Gorsuch might recall from oral argument said, well, if we say this is a national emergency, then what's to say climate change isn't a national emergency? And then the president can go ahead and put carbon taxes on all exports and imports. I'm not sure whether President Trump will win on that question, but I didn't hear a lot of Justice's defending the idea that this was a national emergency. But Sam's quite right, there is this issue embedded in that how much difference will the courts give to a president in his findings of the facts of an emergency. The Supreme Court has never, as far as I know, overturned the president's finding of a national emergency. But if they were ever going to, I think it would be this case. So then at least the second question is if there is a national emergency, what can the president do? I did hear a lot of Justice's questioning the idea that you could impose a tax. They called it a tax or a tariff on imports under the statute. I don't think it's that hard in the sense that the statute gives the president the authority to completely block all exports and imports with a country. And it gives the president the power to regulate all exports and imports with a country. If that's true, how can it be the case of the statute doesn't give the lesser power to just impose right a financial penalty? If you can just completely block imports, then you could certainly, I would think, under the statute, say you can have the imports, but you have to pay 5% of their value or 15% of their value. I think that's consistent though the Supreme Court's only case interpreting Aiepa, which is a case from 1981 called Dames and More versus Reagan, which was about the Iranian-Hasages crisis. And their Justice Request, for whom Chief Justice Roberts was clerking that very term and worked on this very case, said, well, how is the president needs to execute the Iranian-Hasages case agreement? It doesn't fully capture it, but we're going to assume Congress would acquiesce it because it used such broad terms in Aiepa. That lightly leads us to the second question that's about Jeff and that Sam raised, which is the non-delegation doctrine. There is a case, a prominent case called Curtis Wright versus United States, where the Supreme Court said, here's a law that if it were applied domestically, would violate the non-delegation doctrine. But because it involves foreign affairs, we're not going to apply the non-delegation doctrine to it. The court could change its mind about this. If the court were going to go down the direction Sam suggesting, I think they'd either have to sharply distinguish or overturn Curtis Wright. Because that's just what the court plainly says. I believe it's a unanimous decision. I mean, it's 1936 or '37, so it's about 90 years old. So he asked this as much as he could. Yeah, the case doesn't come up all that often, admittedly. But the reason the court gave was because in foreign affairs, and I think this goes to Sam's constitutional point, Congress often tries to give large amounts of authority to present and to take advantage of the presence of ability, superior capabilities in foreign policy, to act with speed and secrecy immediately with dispatch to use Hamilton's terms. But I think in order for the court to say, these are tariffs, these are taxes that are not included in the IPED delegation, they're going to have to cut back on Curtis Wright and argue in favor a broader form of non-delegation. And I think that brings us to the last point you raised, Jeff and Sam, which is the major question is doctrine. That really, to me, turns on whether you think the non-delegation doctrine applies because the major question is doctrine. And there's some argument about where came from and what it even does, but the court has suggested. It protects the non-delegation doctrine that you use the major questions doctrine to interpret vague statutes that might give too much power to the president. Because if you do that, then you avoid having to strike something down on the non-delegation doctrine. And so I think whether the major question is doctrine flies here or not. And I agree, Sam, my read of the oral argument is that Chief Justice Roberts is very much in favor of using that doctrine here. He has been the main proponent of it in the COVID cases and the student loan cases. If he's going to do it, though, it still requires him to go back to number two, which is, does the non-delegation doctrine apply informed policy in the same way it applies to domestic policy? So before the oral argument, I thought Trump was-- pause were 50/50. I thought he might actually lose on the national emergency question, but win on this power's granted question. After listening to oral argument, I think the odds are very high that he's going to lose on one or both of those questions now. Thanks so much for that. Well, let's focus on the statutory argument. John, you argued, as you did in your article, that if Congress has the power to block imports, can then pose a 5% tax. And Justice Kavanaugh, too, expressed concern about removing tariffs from the president's suite of tools and wondered if Congress could shut down trade. Couldn't it authorize the lesser power of tariffs? He said the inconsistency created a doughnut hole in the statute. The organ SG memorably responded, it's not a doughnut hole. It's a different kind of pastry. Sam sum up the various justices on the statutory argument justices, Barrett, Jackson, Kagan, and others expressed out that Aiba authorized tariffs tell us what their arguments were? Well, there-- I mean, if you look at the language of the statute, it's pretty brutal. I think John and I agree here, but the language is pretty broad. Their argument is that I believe it comes down to the point that a tariff is revenue enhancing. And that's why I addressed earlier. It's not necessarily revenue enhancing. But a tariff is revenue enhancing. And as part of our national tradition, we are very, very guarded against making it easy to tax Americans. And so if it's a tax, it's got to be an close to an explicit authorization. And because we're concerned about this background norm of not allowing taxing authority to sort of slip into the system, we're going to read the statute very narrowly. I agree with John. And I think this was just this capital's intuition as well. But if you can block the entire importation of a product, you should be able to sort of do something less. Or it should go through stages. And so the argument's not persuasive to me. And the statute is very broad here. And-- but the argument is, I think it's based. It's a kind of a clear statement rule they're using. Because it's really a tax, which is not clear, as I said, we need to have very clear authorization. We don't have it. And to add to that, in 1971, President Nixon employed the IEPA as a basis for a 10% across the border tax to deal with the balance of the payments. Problem that was engendered by-- are going off the gold standard. But it was still a balance of payments problem. And that action by President Nixon. Under the identical language, it's on different statutes called the Trading with the Enemies Act, but the identical language. It was the regulation of importation. That's the language, both in the TWA and in IEPA, the regulation of importation, that that language authorized the tariff in that case. That was the opinion of the US Court of Appeals, the predecessor to the US Court of Appeals for the Federal Circuit. They also added other language in that opinion saying, here was a relatively bounded tariff and conformed with the harmonized tariff schedule. You can narrow the decision of the Federal Circuit. The problem is, ordinarily, the Supreme Court would say, well, if the same language was in the TWA that is now in IEPA, ordinarily we'd say to Congress, we assume Congress understood the implications of that. I think that's a problem. I think this case is really driven by the non-delegation concerns across the board. I think that's the principal argument. You can block importation. You can have a quota on importation, but what you can't do is use any of these means that might be revenue enhancing because of the special solicitude about easy delegation of the taxing authority outside of Congress. John Justice Kavanaugh was among the justices who seemed sympathetic to the argument that IEPA might authorize these tariffs. He noted President Nixon's reliance on the Trading with the Enemies Act, and as well as President Ford's use of the Trade Expansion Act to impose tariffs on imports. He introduced the delicious pastry analogy and Justice's Alito and Thomas also seemed sympathetic to the statutory argument tell us about their position. Yes, it is a variation of this greater power, lesser power argument. Maybe this is an easier way to understand it. If President Trump had said, instead of Nate Worldwide, the trade deficit is a national security threat. The China is the unusual and extraordinary threat. Then I said, I'm putting tariffs on imports from China. I don't think this case even gets the Supreme Court. IEPA has been used to trade entire embargoes on trade with other countries. Under the preceding statute, the one that you're referring to, Jeff, and that those justices are talking about is the Trading with the Enemies Act of 1917. That's the way IEPA has traditionally been used. I don't think it's hard to say you can't use financial penalties to enforce an embargo or enforce trade sanctions against other countries. What do you actually do if you say we're going to have a trade embargo with Libya or North Korea or Cuba and you violate it? You would usually pay a financial penalty, which is the same as economically. It's the same thing as a tariff. That's what they're getting at one. The second thing is this comes more out of this, James and more style argument, which is what Congress tried to do in IEPA was give the President every economic power they could think of to handle national security threats. They couldn't think of every possible thing. If there's a gap, and this is what James and more said, and I think this is what Justice Kavanaugh and the other justices are thinking there that you mentioned. If there's a gap or a lacuna in the statute, we shouldn't read that as a rejection. What Congress is trying to do is just provide the laundry list of everything they could think of that a President might need. If there's a lacuna in the statute, and this is what James and more, they read it in favor of the President. You're the exact opposite of the presumption of the major questions doctrine and the nondeligation doctrine. Then lastly, and here's what concerns Kavanaugh, the Thomas and Alito, is not necessarily this case, but the next case. They're really worried about there is a genuine national security threat that arrives. Maybe it's not something like a worldwide trade deficit. Maybe it is something like a China or a Russia. Are we going to hamstring presidents in the future from taking the measures that are necessary immediately in order to protect the nation's security? How can we, you know, time zero, predict in time one, five years in the future, ten years in the future, with new technologies, new kinds of economic products and relationships? How can we predict all the ways that a President might need to respond to a very serious threat? This is very common. This goes back to Curtis Wright. This is very common in the way we understand emergency powers and why Congress makes such broad delegations in the first place. You might say, and I think this is also part of what the Court's wondering is. Right? If the President wants more power, go to Congress and just get them to add to Aieba. But the problem is, how does a legislature predict accurately into the future exactly what powers a President is going to need, especially when the national security is at stake? Thanks for flagging the dams and more case, which General Sauer did as well. Chief Justice Roberts, memorably, said, you've mentioned dams and more three times, which surprises me because the Court went out of its way to say it was issuing a very narrow decision. It was pretty much expected to apply only in that case. He clerked for Chief Justice Rankwist when the case was decided and clearly felt invested in it. But as you suggest, some of the other justices seem more sympathetic. Well, let's now turn to the central question of non-delegation. Sam, Justice Gorsuch, his long champion resurrecting the non-delegation doctrine here, Neil Catiel argued for resurrecting it, leading Justice Alito to say whether he'd be surprised that his legacy was the resurrection of the non-delegation doctrine. And Neil Catiel responded. In fact, he felt that this case was unique because it was not just a delegation, but a legislative application. So tell us what was going on in that exchange. Why Justice Gorsuch think this is inclined to violate the non-delegation doctrine and whether or not other justices agree with him? Well, two aspects of the non-delegation doctrine. One as a basis for outright invalidation of IEBA. And the other is, and I agree with John, that it influences how we're reading this statute. And whether we're going to adopt the major questions doctrine. And I think both the way that this statute is being read by the justices that I think are inclined to rule against the president and the interest in major questions doctrine stem from the non-delegation concern. I have no problem with using these other doctrines to avoid an outright indelation of IEBA. Historically, we've not had a very vigorous application of the non-delegation doctrine. I'm doing a study right now of national security measures. And they are all much more, if I could just came out and law fair. All of the statutes that are cited by Justice Sutherland and Curtis Wright are much more bounded delegations than IEBA. There are no bounds to IEBA. Now, John mentions the fact that it has to be an unusual and extraordinary threat. It's going to be very hard to second-guess the president. So when President Biden imposed his sanctions on Israeli settlers in the West Bank, was that an unusual and extraordinary threat? I just think it's very hard when the president makes a declaration to second-guess that declaration. As a practical matter, I think it was conceded that we've never actually, of course, never actually overturned an emergency declaration. The problem with this statute is has no bounds. I would have no problem with a, I think there'll be no problems. The statute said we will authorize you to do whatever you want under IEBA, but it has to be for only six months or three months. Then you have to get reauthorization from Congress. The problem is here. It can continue indefinitely. In fact, we have national emergencies that were announced during the Korean War and afterwards that there's still an existence. And the only way to terminate a national emergency is, as I said earlier, by a veto-proof of majority of Congress. So I think this is the delegation concern that Justice Corsuch has identified, but I think it underlies how everyone is approaching this statute. If the president, we have another president who is concerned about climate change and calls that in a national emergency, this statute, as it stands, I think, would allow the president to do that. And that's why I think it's unconstitutional statute. It is less bounded than even the statutes, the Supreme Court struck down during the New Deal period, sick chicken case, cheque de v. United States, and the Panama Hadoel case. They had more restrictions. This has no standard. It's easy for us to say that something is unusual, unless we're going to create a general a stichable controversy into whether something's an extraordinary threat or an unusual threat. The president says, "I'm sanctioning the sellers in Israel because it's a continuation of the non-going threat." I don't see how that can be a just a stichable question. If I'm right about that, there are no bounds in this statute. This should be a bipartisan concern. There are no bounds in this statute. The only way the president can be checked is by a veto-proof majority of both houses, which is extremely difficult. That is the only way a national emergency can be terminated. I think it's time for it. As I said, our tradition, even the AUMF, the authorization of military force after 9/11, is more bounded than Aepa because the president can only-- it is broad. The president can only go against people that plan to authorize, commit it, or aid it to terrorist attacks or harbor these people. That is a limitation. It's not president. You know, Aepa, the president can go anywhere he wants. There's no time duration as I pointed out, no duration or limit. There's no location limit. There's no goods limit. This is completely foreign to our tradition. Now, the court's going to be reluctant to embark on the non-delegation doctrine, but I say they can do this through these other means that don't involve invalidating the statute. We have to change the dynamic here and actually help in a way. Congress, get back its ability to check the president here. I'm a strong presidential power person. You need to have an emergency legislation, but not of this variety. It should be something very time-bounded, and then it requires the president to get a reenactment of the authorization. Not simply make a declaration, consult with Congress, then Congress has to sit on its hands. John, do you see more than Justice Gorsuch supporting the application of the non-delegation doctrine to the president? Might the liberal justices be reluctant to embrace a doctrine that they'd previously resisted? So in other words, how many justices do you think will go for it? And describe the nature of your disagreement with Sam about whether or not there's a foreign affair, as exception to the non-delegation doctrine under the Curtis right case, and where did you see the court going on that question? Jeff, interesting. I have to say I can't really predict what the justices will do, but I can try to guess based on their past votes and writings about the non-delegation doctrine. Because this has been an issue that has really been reiling the court over the last five or six years. And this is all of the domestic context. And you can see the major question is doctrine is away from some for some justices to move the ball forward towards a kind of non-delegation doctrine of the kind that Sam would like. I don't disagree necessarily with Sam in what would be normatively good. What might we like the non-delegation doctrine to be? But when you look at descriptively, what has the court actually done in the non-delegation doctrine area? It has, you know, there are justices who have individually, I think led by Justice Gorsuch and Justice Thomas, who have written opinions, saying that the court should more rigorously enforce the rule against Congress giving too much power away to the president. But the court has several times now avoided the question. They've granted cert and at least two cases that have raised this question recently and they can't get, the justices can't come to a majority view on what to do. So, the standing major precedent on this is a case called Whitman versus American Trucking Association back from 2000 is about the environmental laws and is really broad delegation that's permitted domestically, much broader than the ones back from the 30s. Essentially, the court said when Congress gives the EPA the power to regulate the air in the national interest, in the public interest, that itself is enough of a standard to allow regulation. I can't imagine a broader delegation policy. That's much broader than IEBA, right? Just regulate the air in the public interest is basically the standard that the Supreme Court is said is okay, doesn't violate the non-delegation doctrine. If that's still the law and I think it is then descriptively, we don't right now have a tough non-delegation doctrine for domestic affairs. I would say, if we apply just the Whitman standard to IEBA, IEBA would survive, but that's because the Whitman standard is just so broad. So if I were to guess in these cases that we've seen that I'm talking about from the last few years, the liberal justices, and I'm talking about them liberally as a matter of jurisprudence, not politically. I would say that's Kagan, Soda Mayor, Jackson, and they would say, they have said in their opinions that they like the non-delegation doctrine the way it is. They don't think it should be toughened in any way. They don't think that the court should be trying to disrupt the way the administrative state works, and that's built on broad delegations of authority. The conservative justices, again, jurisprudentially conservative, Roberts, Kavanaugh, Barrett, Thomas Alito, have already an individual opinion saying they would like to make the non-delegation doctrine tougher, but they can't agree on how to do it. And so that's why the law today is still the non-delegation doctrine is relatively toothless. And so if I were to bet, I would say that the liberal justices still aren't going to go back on their earlier opinions on non-delegation, and that I don't think the conservative justices would go this way either in this case. They're much more interested in reviving it to attack, say, the COVID shutdowns or the student loan program, the things that are involved in domestic affairs. And that's why I think the easier thing for them to do, the one that makes most sense for me is to court to say, this is not an unusual and extraordinary emergency, and then not have to test the non-delegation doctrine at all. And that brings us finally to the last big question, the major questions doctrine, which the court has expressed, civically forrestriking down President Biden's student loan plan. Justice Sotomayor asked whether if the court accepted General Souris's suggestion that the president has brought authority in the foreign affairs realm, whether President Biden could have declared a national emergency in global warming, and then gotten the student forgiveness to not be a major question. And he replied, the power to impose tariffs is a core application of the power to regulate foreign commerce rather than domestic tax. And then just to finish that exchange, Justice Barrett said, can you point to any other place in history where the phrases regulate importation have been used to confer paraffin posing authority. So Sam, help us understand the contours of the major questions doctrine. When does it apply and is the court likely to invoke it to strike down the tariffs? Well, Johannes Wright has gone invoke predominantly in the domestic context to challenge administrative action that's been unheralded, and it's been a doctrine that enables the court to say, well, we need to see specific authorization. So I think, you know, President Biden was on the student loan forgiveness. He didn't have clear authority to do what he was doing. It was unusual exercise of authority, and therefore it was not sustained. I think, you know, Johannes Wright has been a reluctance to invoke the non-delegation doctrine directly, but it has certainly used and used in these major questions cases. The non-delegation concern is driving at least in the domestic context thus far, is driving the insistence that there be express authorization for these various administrative actions. And I think that's a possibility in this case as well in this Trump tariffs case that they will say, even though it wasn't completely unheralded, the ruling of the US Court of Appeals for the Federal Circuits predecessor, the Court of Customs and Trade Appeals, I think was called, that that ruling dealt with an exercise of the tariff authority was much more limited. It conformed to the harmonized tariff schedule. It wasn't quite this wholesale, anything goes invocation of the tariff authority so that, in fact, if you look at that precedent carefully, it really is now what the President Trump is doing is an unheralded invocation. And that we look at this fact you now, and we want to see whether there is express authorization and we don't see express authorization. We see the regulation of importation language. That could mean simply blocking trade with the country, although I think it makes, leaves some of those words in the statute redundant. But they could say it's not, we need to see express authorization of a tariff authority, especially since Congress has legislated in the tariff area, many other places. and it's too easy for the president to simply admit. nor all those much more restricted a tariff authorization. So I think, Major, I know the chief is interested, but I think this is, again, I don't like to make sure to him predictions, but I think this is a way in which the court can go. They're not gonna want to second guess the emergency declaration. It just opens up a Pandora's box in many areas in the international economic sanctions area, where you've got a second guess, whether in fact, but the president is doing his unusual, dealing with an unusual threat to national security. So my instincts tell me that the major questions doctrine is likely to be the doctrinal vehicle that a majority of the court will agree to. I know the liberal justice is, are not super happy with the major questions doctrine, but I'm finding here in this particular context, my liberal friends here on the NYU Law faculty and related institutions are enamored of the major questions doctrine. So the Brennan Center that is here at NYU Law School, they have advanced, I haven't read their brief in this case by assuming that they're making that argument. My colleague and co-author, Ricky Reves, our former dean who runs the Center for Policy Integrity, he also has argued for a robust, in his brief, a robust application to major questions doctrine. So I think we're getting late term converts to the major questions doctrine in this case. So it's hard to predict what the justice will do, but I don't think they're gonna overtly second guess the emergency declaration. So if they don't do that, then I think the only, and I think it's very hard to actually argue that this is clearly a tax, and even to a word, a Congress can also delegate its taxing authority. So I don't think it solves that problem. I don't think it's clearly a tax, as the SG said, Mr. Sauer said, "Well, no one's gonna pay anything "if actually underlying conduct changes." So we're saying, don't export fentanyl to us, and we won't tariff you. So in many cases, it won't be a tax, and also as I said, it also depends on the substitutability of other products for the ones that are tariffed, whether consumers pay. I think it's hard to actually say it's a tax. I don't mean that route does not hold up, I believe. And so that I think you're left with something like the major questions doctrine. I could be wrong about this, of course, but that's my sense. - John, do you agree that at least some liberal justices may invoke the major questions doctrine in striking down the tariffs? And might some conservative justices refuse to find that the major questions doctrine is an issue because they view IEP as the successor to other statutes which do authorize tariffs. - Jeff, I think there's a difference between how advocates use doctrine and justices treat doctrine. I think there's nothing wrong with advocates, like the ones that Sam has mentioned, who have been critical about major questions doctrine applied to environmental cases, for example, turning right around then and saying, "Oh, but you should use it when it comes to the tariffs on by President Trump." That's what advocates do. They use any stick to beat a dog, as they say. I think that's different when with the justices because some of the liberal justices have been really strident, I think, in attacking the use of the major question doctrine. If really, Justice Kagan in particular has really written some sharp sense questioning where it came from saying there was kind of made up that it's been used in a way just to get political outcomes, to express his hostility to administrative state. I think it's hard as a justice to have attacked the doctrine this way and then turn around and say, "Ah, but we're gonna apply it to the tariffs." I think they wanna be more consistent and also, I think, again, they're thinking about the cases for the future. And so I think in general, the liberal justices are more forgiving to the administrative state and the way it currently operates. And so if they were to sign on an opinion here saying the major question doctrine requires the tariffs to be shut down, the government will quote that back to them every time they can when they seek their support for limiting the powers of the administrative state or expanding presidential control over. I can see Sam's point. I think Sam is, how you're making the argument, whether you think the major questions doctrine is right or wrong, it provides this kind of middle ground that lots of different justices with varying ideologies can at least sign on to, even if any number of them would not pick that as the primary reason they're against the tariffs. You've been following Supreme Court long time, Jeff, doesn't this smack to you of a typical chief justice Roberts compromise, which is why he's out there selling it? It's because this gives him a chance to use his favorite doctrine, which has very ideologically jurisprudential obscure origins, but it's there politically convenient as a compromise, right? That's what this sounds like to me. But again, I think if the conservative justices are not gonna apply here or the liberal justices in the change of mine, they really got to explain then where they fall on this question of non-delegation informed policy and national security, because if you're applying to make your question as doctrine, it's because you think the non-delegation has principle applies to foreign policy, and then you have to figure out why you don't agree to cut a straight anymore. And I think that's one of the great fundamental questions in constitutional law. I mean, we teach constitutional law, teach foreign affairs law. Curtis Wright is a brooding omnipresence in the sky. It just organizes the way we think about foreign policy and the constitution. And so to cut away at it, and Sam's made some arguments that why we might want to, but to cut away at it really pulls at one of the fundamental strands of how we think about the Constitution, just in brief, because we're going to the 250th anniversary of the Declaration next year and the revolution, Curtis Wright takes the view that Lincoln took, that the nation is created in 1776. And the Constitution comes second. And because of that, we allow the government to do things in foreign policy that we don't allow to do domestically. There's a corp and a turn us back on that logic, they can, but that's a really important fundamental principle of American constitutional law. Life feels settled by the Civil War. And so it just recognizes that the court in Curtis Wright. Well, it is time for closing arguments in this excellent discussion. Sam, the first one to you, please tell us why you think the court should strike down the tariffs, Alan, what grounds? Well, the court should strike down the tariffs because they're next size of authority under IEPA, which is a completely unbounded delegation. Not just in the tariffs area, but also in the infosition of economic sanctions abroad. I don't think the court is going to second guess the emergency declaration. And I think if you really-- the statutory arguments are problematic, because I think it's been pointed out in our discussion here. If you can block all trade with a country, I don't see why a lesser means that tariff is not available. A tariff is not inherently revenue enhancing. It can have that effect. President Trump, of course, has sort of given up the-- he's given up the ghost in a sense that he says he's very proud of the revenue enhancements. I just don't think the court's going to go down on that route. I think really the only route that makes any sense is that we're worried about the scope of delegation in IEPA. Put aside Curtis Wright for a moment. I don't agree with John about Curtis Wright. It doesn't matter at this point, but I think the delegation concerns here. Let's limit it to tariffs for a moment. It's too much in war with the very specific provisions that Congress has put in place. And they will strike down its application to tariffs. It's the very least. And the background concerns-- I think John's considered this-- the background concerns are the non-delegation concerns. A tariff is a regulation of foreign commerce. I don't think it is an inherent power of the president to impose a tariff, nor is it an inherent power of the president to even impose a bargo. It may be within a middle of an armed conflict or an incipient armed conflict, then the president can do many things to defend the country. But it's an ongoing matter. I think it's problematic. So I don't see any good move by the Supreme Court other than some invocation of the major questions doctrine. They will say it, in fact, is unheralded. It's never been used in this way, and that is true. It's never been used in this way. It could even the 1971 tariff by President Nixon was bounded as the lower court noted in that case. So I think this could-- I mean, I think this is something that the chief is interested in this. It may be that this case cannot be given to the liberal justiceist to write, but I see five votes for this rationale because of the background delegation concerns. And of course, there'll be some concern about whether it applies to foreign failure. that's a leave that for another day. All of the statutes in Curtis Wright is a piece I have right now in law fair. They are much more bounded delegations. We're going to run that up all the way through the 1950s, even the authorization to use military force in 9/11. We've never had this kind of completely unbounded delegation with a president can basically search the globe and impose sanctions on anyone he wants. So that's the concern on the foreign sanctions part of this, which the court doesn't have to get to. In this case, they can simply say in the tariff context, this is a problem. It's unheralded having a major impact on the economy. And it fits nicely with the various other decisions we've had. I don't know where the liberals will join that opinion. They may write separately saying they think it's a mother rationale, but I think the five votes are there. There's something for that rationale. Thank you so much for that. Don, last word to you, please tell me the people listeners whether or not you think the court should strike down the tariffs. And why? First, I think the court will strike down the tariffs based on what we saw at oral argument, where the defense of the tariffs were very half-hearted, I would say, and doubtful. And you had, I think, some very strong criticism of the tariffs. So whether I would do it as a justice is a, you know, what I think is the right answer is different. Before I get to that, I do think that you could see, as Sam has suggested, a kind of coalescing around the major questions doctrine as the tool, to use it even though I think that's going to cause tension for some of the justices with the positions they've taken in the past, both for and against the doctrine, but it's a nice compromise. It might work. I think I could easily see Chief Justice Roberts writing the opinion and the case coming out much faster, maybe in the next few weeks or maybe in a month or two, then would not be normal for a case of this magnitude because of the need to unravel these tariffs quickly, and start refunding the money if they have to. Whether what I think the court should do is, I would think they should reject the idea that a trade deficit is an emergency. It's been around for 50 years. It's been the same size for 20 years. Nothing actually knew has really happened in our trade policies. In fact, it's not even clear that trade deficit is harmful to the country. I mean, if you talk to economists, they say, well, the trade deficit exactly equals the capital that comes into the country. It may actually have to balance some higher economics. Maybe it's better for us to give paper to people in exchange for goods, and then they bring that paper back here and invest it in American country companies. Not even sure whether that's the case then that the trade deficit is a harm. I think the most important thing is the justices, I think the conservative ones are going to be wary of saying that an emergency is just completely plastic, that any president can say an emergency is anything. And I think the justices are worried about climate change and the legal issues that it presents. If they disagree, then they'll go on to the second question. I would say I think that tariff is not a form of decision or policy that has to be made by Congress and the Constitution that the Congress is free to delegate that authority to the president. And given the broad terms that the statute uses, seems to me that putting a financial penalty on imports is regulated. It falls within the world regularly. Just like I forgot to mention, the Supreme Court has clearly said that the Constitution's use of the word regularly. When it gives Congress the power to regulate interstate commerce, inclusive power to oppose taxation, tax penalties on interstate commerce. I think that's also hard to get around if you're the majority. Nevertheless, I think I feel listening to oral argument that the court is going to strike down the tariffs. And if I were the Trump administration, I would start working on Plan B. There are other trade statutes like Section 301, like Section 232 of the trade acts, which allow the president to use tariffs for an entire industrial sector, an entire import sector, or against specific countries on fair trade practices. He may not be able to get this worldwide tariff, but he might be able to get pretty close. And he can use IEPA against specific countries that pose a national security threat. You stitch those three together. You might get something approaching these IEPA tariffs, just not the entire worldwide scope of them. Thank you so much, Sam Astroiker and John U, for a thoughtful, thorough and nuanced conversation about the tariffs case. Sam, John, thank you so much for joining. Thank you, Jeff. Thanks, Jeff. Great to be with you. This episode was produced by Bill Pollock and Griffin Richie, who was engineered by Bill Pollock. Research was provided by Griffin Richie, Alna Salvatore, Tray Sullivan and Tristan Worsham. I'm thrilled that my new book is out. It's called The Pursuit of Liberty, How Hamilton Versus Jefferson Ignited the Lasting Battle Over Power in America. Please check it out at the bookstore near you. And if you'd like a signed book plate, please let me know. And always remember that the National Constitution Center is a private nonprofit. We rely on your generosity, passion, and engagement for all our programming. Please consider donating at ConstitutionCenter.org/donate. On behalf of the National Constitution Center, I'm Jeffrey Rosen.