Chief pushes back on broad reading of Dames & Moore

KBJ confuses Nixon with Lincoln

Kavanaugh presses on which way Nixon tariff cuts

ACB presses SG Sauer on other instances in which “regulate importations” has covered tariffs.

Kagan: Any instance in which “regulate” confers taxing power? Sauer: We’re not arguing that. It confers tariff power.

Sauer: “regulate importations” confers tariff power Sotomayor: phrase is “regulate importations and exportations,” but you agree no power to impose tariffs on exports

Chief: Why doesn’t major-questions doctrine apply?

Sauer: Point of statute is to confer major powers to address major emergencies

Chief: Imposition of taxes on Americans has always been core power of Congress

Sauer: Tariffs are regulatory, not revenue-raising. Most effective if they lead to no imports and no revenue. [At war with Trump admin claims about revenue] Sotomayor: Why not then just bar imports?

Trump admin right now celebrates revenue raised by tariffs. https://x.com/WhiteHouse/statu...

ACB: Algonquin case referred to license fee, not tariff. What’s significance of that?

Sauer: Difficult to see a distinction between a license fee on imports and a tariff.

Thomas: Give us your argument against nondelegation. Sauer: Does not apply with same force in foreign context. President’s own inherent authority combined with Congress’s conferral.

Alito on Yoshida case: Some statements there cut against you. Did Congress rely on those statements in enacting IEEPA?

A bit scary to hear Sotomayor relying on grammatical parts of speech. https://www.nationalreview.com...

Kagan: Tariffs are exercise of taxing power, not foreign affairs. Hampton case applied nondelegation to tariffs.

Kagan: In Consumers Research case last year, we assumed that no ceiling on tax would lead to nondelegation problem. Sauer: It’s a regulatory tariff, not a tax. Wholly different context. Foreign affairs.

Kagan: Title 19 is full of constraints on tariffs. Why would any president ever look to Title 19 instead of blowing past them via IEEPA? Sauer: Emergency declaration is constraint, invites intensive oversight by Congress. Kagan: But you say emergency declaration is unreviewable.

Gorsuch: Could Congress delegate to president power to regulate commerce with foreign nations? Isn’t that the logic of your position?

Gorsuch: You’re saying that there is inherent authority in all foreign affairs, so why under your theory can’t Congress delegate it all?

Gorsuch: You’re now conceding that nondelegation has some role, even if president is entitled to deference? Sauer agrees. Gorsuch: Could president impose 50% tariff on auto parts to deal with climate change? Sauer: Yes

At risk of overreading things, I think that Chief, Gorsuch, and ACB (and three liberals) have signaled some concerns with Admin’s position.

Gorsuch: One-way ratchet increasing presidential power. Gorsuch: Are tariffs always foreign affairs? Sauer: Always foreign-facing, but if revenue-raising rather than regulatory they don’t raise same issues

Kavanaugh invokes major-questions doctrine. What did Congress have in mind in 1977 regarding Nixon tariffs?

Kavanaugh: Why did no previous presidents use IEEPA to impose tariffs? Sauer: Tariffs weren’t natural tools for those emergencies.

Sauer: Trump far more comfortable using tariffs as a tool. Kav: Algonquin case held that “adjust imports” did not allow tariffs. [Not sure I got this right.] Sauer: Tariffing is quintessential way of regulating imports.

[Gotta cut out now]

@EdWhelanEPPC Art I, Section 8, para 1 grants “Congress power to lay and collect taxes, duties, imposts abd excises,” whereas para 3 grants Congress power “to regulate commerce with foreign nations.” IEEPA delegates to president only regulation, not taxing authority.

@EdWhelanEPPC Justice Gorsuch came in hot.

@EdWhelanEPPC It's going to be a unanimous smack down of the tariffs.