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Emily Bazelon: Hi, David. There are many legal controversies for us to dig into. Let’s start with the news — the argument at the Supreme Court on Wednesday in the case challenging President Trump’s tariffs. Do you think it went as badly for the Trump administration as I do? Were you surprised by anything? And how were you counting up the justices’ votes?
David French: Hi Emily! I agree with you that, on balance, the argument did not go well for the Trump administration, but it wasn’t a slam dunk on the anti-tariff side either. There was one surprising element to me — two of the court’s most conservative justices seemed to be sharply at odds with each other during the argument. Justice Gorsuch’s questioning was damaging for the administration’s case, while Justice Alito very clearly planted his flag for Trump’s tariffs.
At a couple points, Alito virtually took over the oral argument, pressing Neal Katyal, one of the attorneys who represented the plaintiffs challenging the tariffs, for several minutes at a time on a number of fronts. His most effective line of questioning concerned whether the term “regulate” could encompass imposing a fee. I thought Katyal handled Alito’s questions well, but I do think that exchange slightly shifted the momentum of the argument, at least for a time.
Based on the oral argument, I’d say that four votes seem strongly against the administration’s position (Gorsuch, Kagan, Sotomayor and Jackson), two are softer votes against the administration (Barrett and Roberts), two seemed moderately sympathetic to Trump’s case (Kavanaugh and Thomas), and Alito was ready to defend Trump’s tariffs like he was making a goal-line stand in the fourth quarter of the Super Bowl.
Is there any moment that truly stood out to you?
Emily: Two. Barrett zeroed in on the text of the statute Trump has relied on, in a way I thought was devastating. The question is whether the phrase “regulate … importation” gives Trump the authority he’s seeking. Barrett pointed out that those words are not tariffs or duties or imposts (that last one was not on my vocab list, I confess) or any of the other terms Congress traditionally has used for taking money from foreign sellers of goods that come into the United States. Barrett asked for an example, any example, of another law that functions the way the solicitor general, D. John Sauer, says this one does — “Can you point to any other place in the code or any other time in history where that phrase, together, ‘regulate importation,’ has been used to confer tariff-imposing authority?” she said.
Sauer could only come up with the precursor statute to the one Trump is using, which Barrett already knew about.
My point is that Justice Barrett, a determined textualist, seems very doubtful that the words in the emergency law Trump used to impose the tariffs mean what he says they mean. For textualists, that should be a death knell.
Alito, however, clearly read the same words differently. He thinks regulating importation equals tariffs. To me, it’s a great example, among many, of why textualism does not point to The One True Answer of how to interpret a law in the way that adherents of this method often claim it does.
The other moment was Gorsuch’s closing mic drop. “It does seem to me — tell me if I’m wrong — that a really key part of the context here is the constitutional assignment of the taxing power to Congress,” he said. “The power to reach into the pockets of the American people is just different, and it has been different since the founding.”
In other words, he’s suggesting that Trump is usurping one of the most important functions that the founders gave to Congress to ensure that the president would not be able to act like a king. That’s the crux of why Trump’s claim of authority here is such a blow to the constitutional separation of powers. Tariffs, as some of the justices pointed out, are taxes by another name. They raise revenue by imposing costs that companies can eat or pass on to consumers.
If the president can declare an emergency at a whim, as Trump has done by declaring a run-of-the-mill trade deficit a national emergency, and then tariff whoever he wants at whatever rate, which he has also done — Ontario, how dare you run an anti-tariff ad that uses Ronald Reagan’s actual words against this president? — then Congress is not a coequal branch. Not even close. Congress is just … sitting on the sidelines. The president can dun countries or maybe even companies he doesn’t like, raise all the revenue he wants, and Congress can’t do a thing about it unless it can come up with a veto-proof majority to revoke his self-declared emergency powers. Justice Gorsuch pointed out that under this scheme, as a practical matter, Congress can never get its taxing power back.
David: That Gorsuch quote is key — it felt to me like he was summarizing his own theory of the case, a theory rooted in the founding ideas of the country. Taxation is a core enumerated power of Congress, and the idea that it delegated its core enumerated authority through a broad, vague statute governing international economic emergencies seems to strike Justice Gorsuch as implausible.
As you note, there was another portion of the oral argument that brought this point home. Justice Gorsuch asked the solicitor general about the “retrieval problem” — the difficulty of taking power back from the president. It takes only a bare majority of Congress (with presidential assent) to delegate the power, but a supermajority to retrieve the power — unless a president actually wants to surrender the power Congress has given him or her.
This creates, in Gorsuch’s words, a “one-way ratchet” that results in the president accumulating more and more power at the expense of the legislature.
Gorsuch’s observation has profound implications beyond the tariff case. One way that administrations expand presidential power is by arguing that the judiciary isn’t the proper branch to check the president, that, in some instances, only Congress has the authority.
But, as Gorsuch notes, that check is often completely illusory in the absence of congressional supermajorities. I can think of a number of circumstances where Gorsuch’s observation is relevant, including — most notably — in the disputes over Trump’s deployments and attempted deployments of the National Guard. The administration is arguing that the courts shouldn’t second-guess the president and that if Congress wants to amend the statute that grants him the power to deploy the troops, it can. But is that a real check when Congress can’t act on its own absent a veto-proof supermajority?
We’ve been talking a lot about the weaknesses in the administration’s position, but I fear that might leave readers with the wrong impression — that the outcome of this case is a foregone conclusion. I think the administration has a path to victory here. It can argue that the words “regulate … importation” in the International Emergency Economic Powers Act (the full name of the statute before the court) should be read to encompass tariffs, especially when combined with the broad discretion presidents enjoy to conduct foreign affairs.
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Aleksey Kondratyev for The New York Times
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