One-Way Ratchet and a Different Kind of Pastry: Trump Tariffs at the Supreme Court( continued from page 4)
Justice Gorsuch noted that the SG conceded that there is some nondelegation principle and therefore major questions as well, to which the SG said:“ If so, very limited, you know, very, very, deferential.” Shipper’ s counsel countered that any delegation of tariff authority must be done with intelligible principles, which do not exist with respect to IEEPA:
And what you just heard my friend say is every single limit in IEEPA 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.
must be an“ intelligible principle” that guides the use of the discretion Congress is delegating. The SG argued that the nondelegation doctrine does not apply with as much force to foreign affairs as Justice Kavanaugh said in one of his opinions because the Court has been comfortable with very broad delegations in that context. Justice Kagan noted in the Consumer’ s Research case decided last year that if there was no ceiling on the much smaller tax in that case, it would raise a delegation problem. And so, she asked the SG, if the tax has no ceiling, the tax“ can be anything,” and such a tax“ would raise a pretty deep delegation problem?” Among other things, the SG said in response:
First of all, I can’ t say enough, it is a regulate-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 IEEPA, 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 that this Court has recognized in many cases.
Section 232 of the Trade Expansion Act of 1962 also garnered considerable attention primarily by way of a discussion of the Court’ s decision in Federal Energy Administration v. Algonquin SNG, which held that the president has the power under Section 232( b) to impose licensing fees where specific imports threatened to impair national security. In that case, the issue was the flood of imported crude oil and its derivatives in 1975. The Court held that the standards provided by Section 232( b) to the president“ in its implementation are clearly sufficient to meet any delegation doctrine attack.” Section 232 does not use the word“ tariff.” In a discussion with Justice Kavanaugh, shippers’ counsel Katyal noted that Algonquin expressly addressed a trade statute, which included specific reference to duties in a separate provision, but noted that the Court went 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 remedies‘ to the extent necessary.’... All of that is in the statute. All of that is in the Algonquin decision. None of it is in IEEPA. That’ s the problem.... the Algonquin case said this is a very limited decision limited to just its facts.
( continued on page 6)
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