One-Way Ratchet and a Different Kind of Pastry: Trump Tariffs at the Supreme Court( continued from page 3)
that had never before been used to justify tariffs. No one has argued that it does until this— this particular case. Congress uses tariffs in other provisions but— but not here. And yet— and correct me if I’ m not right about it— the justification is being used for a power to impose tariffs on any product from any country for, in any amount for any length of time.... it does seem like that’ s major authority... So why doesn’ t it apply again?
The SG noted that the president has broad authority in the foreign affairs realm, including foreign-arising emergencies, and that the Court has never applied the major questions doctrine in the context of foreign policy. The president has broad Article II power, and a“ sweeping delegation” of authority from Congress to regulate foreign commerce. The SG noted that there are a series of triggering conditions that have been identified by the Court, including that the power at issue was“ unheralded,” which is not the case here because President Nixon imposed tariffs under TWEA and Congress recodified the language to“ regulate importation” two years later. Nevertheless, in response to questions from Justice Gorsuch, the SG admitted that the president does not have inherent authority over tariffs in peacetime, but that Congress can delegate that authority to him, as he contends it did in IEEPA in using the phrase“ regulate importation.”
Justice Alito asked the shipper’ s counsel about 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?” Katyal noted that the government has never made that argument and for good reason because it only applies to most favored nation(“ MFN”) violations, where a tariff is available only if the president finds that a country discriminates against the United States. And further noted that Sections 252 and 301( of the Trade Expansion Act of 1962) are understood by many to have superseded Section 338. Katyal deflected Justice Alito’ s question by noting that he was here to address the one statute raised by the government, IEEPA. If the administration later raises Section 338,“ at that point, we’ d have that case.... I’ m responding to the government’ s argument, which is the invocation of IEEPA and IEEPA alone.” Section 338 is part of the Smoot-Hawley Tariff Act, now codified in 19 U. S. C. Section 1338( d), which empowers the president to impose retaliatory tariffs of up to 50 percent on goods from countries that discriminate against the United States. Among other trade agreement authority, Section 252 of the Trade Expansion Act of 1962 grants the president authority to respond to foreign import restrictions that unjustifiably oppress U. S. agricultural products and impose“ duties or other import restrictions” on foreign products to remove foreign import restrictions and gain fair access to the discriminating markets. Section 301 of the Trade Expansion Act of 1962 created a mechanism to petition for tariff adjustments with the Tariff Commission.
The Court also addressed a variety of questions about the nondelegation doctrine, which provides that Congress may not transfer to another branch“ powers which are strictly and exclusively legislative,” though it does allow Congress to“ confer substantial discretion on executive agencies to implement and enforce the laws.” There
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