The Major Tariff Question – Econlib

Nevertheless, the case is still significant for the separation of powers. Underlying all opinions of the justices in the majority is the shared premise that tariffs function as taxes and thus are within the purview of Congress’s power of the purse. A declaration of emergency does not shift authority to the president. In this sense, Learning Resources reasserts Congress’s primacy.

Politics

First, the political impacts are consequential for both the president and the Court. The president has consistently put tariffs at the heart of his economic program. Moreover, his trade policy reflects his general populist mantra: that America is threatened by people and goods coming from overseas. Beyond the legal subtleties of the opinion, many citizens will take the case as a rebuke to that vision. Like other second-term presidents, Trump is entering the lame-duck stage, and the case will also reinforce the perception that he is losing power. And power in politics is dependent on the perception of power. Given the president’s past behavior, one may look for him to assert his continued centrality. Foreign affairs and military action may offer such opportunities.

The opinion is also important to the politics surrounding the Court. Many Democrats have charged that the Supreme Court is abetting the authoritarianism of the Trump administration by upholding, often on the emergency docket, a wide range of actions, such as the firing of commissioners of independent agencies. These criticisms may be laying the foundation for changing the composition of the Court either by expanding its size or by imposing statutory term limits the next time the Democrats have unified control of government. After all, President Biden and candidate Harris endorsed the latter. But the Court’s invalidation of a core part of the Trump program will make that move harder to defend, particularly if, as I suspect, he suffers other major defeats at the Court’s hand during his administration. By underscoring the independence of Republican-appointed justices, President Trump’s denunciation of them may paradoxically safeguard one of his greatest achievements: a Supreme Court most friendly to defending the Constitution’s original meaning in at least a century.

Economics

The economic effects are also likely substantial but not entirely clear. Although the Court did not directly say that tariff revenues must be repaid, any unliquidated tariff payments will be reversed. Some have suggested that the government will be on the hook for approximately $175 billion.

The next question is the extent to which the president can replicate these tariffs under other statutes. No authority, however, has the economy-wide breadth, the discretion as to amount, and the lack of requirement for specific findings that made IEEPA so attractive to the president. Section 122 of the Trade Act is closest, and thus it is no surprise that in defeat, the president immediately invoked it. That provision authorizes economy-wide tariffs, but only at a rate of up to 15 percent ad valorem for 150 days. That is in itself an advantage for long-term economic growth because Congress is unlikely to approve them for the long term. It is also not nearly as useful as IEEPA for Trump, who wants to deploy tariffs as leverage for negotiations, because other nations can wait him out. Section 232 allows the president to adjust tariffs on any article, but requires a national security finding, consultation, and investigation. Trump may try to speed up compliance with all these requirements and claim that national security requires tariffs on all goods, but such actions are certain to be challenged. Section 301 has also been mentioned, but that provision requires specific factual findings after an investigation that individual countries are behaving economically unfairly as a prelude to tariff retaliation. One economic advantage, even during their pendency, is that these substitute authorities result in more predictable, rule-based tariffs. While all tariffs can harm economic growth, the arbitrary and mutable impositions authorized by IEEPA can do the most damage.

Law

What will be the long-term effects of the decision, other than the holding that IEEPA does not authorize the president to impose tariffs? One legal implication is that the Court’s historic solicitude for deferring to the president when “foreign affairs” is invoked may be waning, in part because of the turn toward originalism. In cases such as United States v. Curtiss-Wright, the Court previously deployed a kind of atextual foreign affairs exceptionalism to protect exercises of presidential power that the Court might otherwise have struck down (there, under the non-delegation doctrine). But here six justices joined in that part of the chief justice’s opinion that distinguishes tariffs from foreign affairs because the authority over foreign commerce lies in Article I, not Article II. There is thus no constitutional reason to interpret presidential statutory authority broadly, when that authority depends on a legislative grant from Congress. As the Americans have known since the Revolution, a tariff trenches on our domestic liberties, even if it affects foreigners too.

A second legal consequence is likely to be the further cementing of the major questions doctrine as central to statutory interpretation in administrative law. The doctrine is an obstacle to the executive’s broad interpretation of delegations in important regulatory cases, at least outside statutes that, like IEEPA, can be alleged to touch on foreign affairs.

First, the chief justice and Justices Barrett and Gorsuch in the majority, and Justices Kavanaugh, Thomas, and Alito in dissent, all speak very favorably of the doctrine. Justice Kavanaugh calls it an “important canon” of statutory interpretation, and his principal reason for not applying it here—that tariffs touch foreign affairs and fall in the “president’s wheelhouse”—will not translate to domestic regulation. Even for the dissent, the question is no longer whether the major questions doctrine exists, but the circumstances in which it applies. Thus, for six justices, the major questions doctrine will continue to preclude agencies and even the president from relying on arguably ambiguous language to impose substantial restrictions on citizens’ liberties when these restrictions have large economic and political effects.

Second, in a tour de force concurrence that may be his best since joining the Court, Justice Gorsuch places the major questions doctrine on a sounder footing. The complaint against the doctrine is that it is fabricated—made up by current conservatives to frustrate the administrative state. But Gorsuch shows that antecedents of the major questions doctrine antedated the Constitution, let alone the rise of the modern administrative state. Corporate charters granted by Parliament were read narrowly. For instance, an English court required an express statement before interpreting the broad authority of the Company of Cutlers to take and forfeit the wares of its members because they were defective. As the example suggests (and scholars have shown), state-authorized corporations often had much in common with administrative agencies; in any event, interpretive rules governing public charters illuminate how grants of authority were construed.

Gorsuch also points to English case law suggesting that “the legality of executive action depended on the relationship between the size of the asserted power and the clarity of the underlying authority.” Here, he quotes a very recent English law review article, showing that Gorsuch’s practice of employing law professors as law clerks is paying dividends.

Gorsuch is making the case that the major questions doctrine reflects a long-established method of interpretation, applicable to the interpretation of provisions empowering the executive within our constitutional system from early on. He finds what he calls an “extraordinary power” clear-statement rule and says it “looked strikingly like” the major questions rule.

The proper interpretation of legal texts depends on legal context. Gorsuch supplies a long-established context that justifies the major questions doctrine. To be sure, such clear statement rules were originally grounded in values, but once they were accepted into the law, they operate as part of the legal context. Thus, statutory meaning in documents written in the language of the law includes settled interpretive conventions (even if originally value-laden), not just dictionary semantics.

Third, Gorsuch calls out Kagan and other liberal justices who reject the major questions doctrine for their inconsistency in interpreting their administrative statutes. In Learning Resources, they insist there is no need for a major-questions clear-statement rule to read an arguably broad delegation “to regulate … importation or exportation” as excluding the power to impose tariffs. In this case, they are happy to construe the text narrowly. But, as Gorsuch notes, that is not the way two of them previously read arguably broad grants to authorize agencies to deploy unprecedented sweeping powers. For instance, Kagan and Sotomayor read the Occupational Safety and Health Administration’s mandate to create “safe and healthy working conditions” as authority to impose a vaccine mandate for a virus that had no particular connection to work. Those two justices also concluded that a statute allowing the Centers for Disease Control and Prevention to issue regulations to prevent the “transmission of communicable diseases” authorized a nationwide eviction moratorium. All three of the liberal justices held that the vague and ambiguous grant of authority to the Environmental Protection Agency to employ “the best system of emission reduction” was enough to close down coal plants, although the EPA had only previously used the authority to mitigate pollution from power plants. Most recently, they even construed a statute that allowed the Secretary of Education to “waive or modify” statutes or regulations relating to student loans, leading to an unprecedented cancellation of hundreds of billions of student loan debt.

Gorsuch makes a powerful case that the liberal justices appear to be applying a different mode of statutory interpretation to the Trump administration’s tariffs than they have to the broad authority previously exercised. Even if the charge will not prompt Justices Kagan, Sotomayor, and Jackson to embrace the major questions doctrine, it does undercut the strongest selling point of their position: that they are principled textualists, while the justices invoking major questions are merely result-oriented manipulators of meaning.

The strengthening of the major questions doctrine pushes core political decisions back to Congress, where the Constitution expects them to be made. That shift promises greater stability and less polarization because Congress is more likely to accommodate diverse and conflicting interests through bargaining and compromise than presidents or agency heads are to act by executive fiat based on ambiguous statutes. When sweeping burdens are imposed on citizens and when the economic and political stakes are immense, statutory interpretation should not turn on ambiguous language stretched to provide the executive with more power. Learning Resources reaffirms that the legislative authority is the responsibility of Congress and that declaring “emergency!” does not rewrite the separation of powers.

This essay has also been published on Law & Liberty, part of the Liberty Fund network.

*John O. McGinnis is the George C. Dix Professor in Constitutional Law at Northwestern University and a senior writer at Law & Liberty. He is the author of Accelerating Democracy (2012) and coauthor, with Mike Rappaport, of Originalism and the Good Constitution (2013). He is a graduate of Harvard College; Balliol College, University of Oxford; and Harvard Law School. He has written for leading law reviews, including Harvard, Chicago, and Stanford, as well as The Yale Law Journal, and in journals of opinion, including National Affairs and National Review.