One-Way Ratchet and a Different Kind of Pastry: Trump Tariffs at the Supreme Court( continued from page 2)
There was considerable discussion about licenses and licensing fees. Shippers’ counsel Neal Katyal conceded that licensing fees were analogous to tariffs. IEEPA and TWEA permit the regulation of importation by“ instructions, licenses, or otherwise.” Justice Barrett asked shippers’ counsel,“ Could the president regulate commerce under IEEPA by using licensing fees?” Katyal clarified that there is a difference between licenses and licensing fees:“ IEEPA and TWEA authorize licenses, not license fees. And no president has ever charged, to my knowledge, fees under those two statutes for the licenses. So fee is impermissible. License is okay.” Licenses deal with permission. Licensing fees recoup the cost of government services and may raise revenue, licenses do not. Katyal noted that the government asserts a power that“ raises $ 4 trillion.” The argument follows that raising revenue is the power to tax, which lies exclusively with Congress under Article I.
While arguing that imposing tariffs is very similar to“ licensing,” the SG noted that the government’ s principal argument was that the president could impose tariffs through the words“ regulate importation.” Yet when read in context, the method of regulation is by“ instructions, licenses, or otherwise.” It is not by licensing fees. tariffing is the, in many ways, the quintessential way of regulating importation.” The SG further said:
And 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 commerce. These are regulatory tariffs. They are not revenue-raising tariffs. The fact that they raise revenue is only incidental.
It is difficult to see the difference between regulatory tariffs and revenue-raising tariffs when the administration’ s intent is to raise trillions of dollars through the imposition of reciprocal and fentanyl tariffs.
It is difficult to see the difference between regulatory tariffs and revenue-raising tariffs when the administration’ s intent is to raise trillions of dollars through the imposition of reciprocal and fentanyl tariffs.
Justice Barrett also challenged the SG with respect to the employment of reciprocal tariffs, which were predicated upon threats to the defense and industrial base. She then asked,“ I mean, 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?” The SG argued that the president’ s Executive Order 14257 spells out the nature of the emergency— the lack of reciprocity in trade and the hollowing out of the nation’ s industrial base.
Chief Justice Roberts addressed the major questions doctrine and the Government’ s dismissal of it in the context of foreign affairs. The major questions doctrine applies when the underlying claim of authority by the Executive Branch concerns an issue of“ vast economic and political significance,” and Congress has not clearly empowered the agency with authority over the issue. In such circumstances, agencies must point out Congressional authorization for their actions in major questions doctrine cases. Chief Justice Roberts noted that the doctrine“ might be directly applicable” and that the administration is claiming a source in IEEPA:
( continued on page 4)
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