November 5, 2025 • 37 mins
Michael Dorf, a constitutional law professor at Cornell Law School, and Timothy Brightbill, a partner and co-chair of the international trade practice at Wiley Rein, discuss the Supreme Court oral arguments over Trump’s sweeping global tariffs. June Grasso hosts.
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Speaker 1 (00:02):
This is Bloomberg Law with June Grosseo from Bloomberg Radio.
Speaker 2 (00:08):
It's one of the most important cases of the term,
a test of presidential power where President Trump's signature economic
policy is at stake. After nearly three hours of oral arguments,
it appears that a majority of Supreme Court justices across
the ideological spectrum are skeptical that Trump has the legal
(00:29):
authority to impose billions of dollars of tariffs on goods
from nearly every country. Chief Justice John Roberts and Justice
Sonya Sotomayor said, the tariffs are taxes, and the Constitution
gives taxing power to Congress.
Speaker 3 (00:46):
It's a congressional power, not a presidential power to tax.
And you want to say tarifts are not taxes, but
that's exactly what they are, degenerating money from American citizens revenue.
Speaker 4 (00:58):
The vehicle is in position of taxes on Americans, and
that has always been the core power of Congress.
Speaker 2 (01:06):
Trump is arguing that an emergency powers law, the International
Emergency Economic Powers Act, or AIPA, authorizes him to collect
tens of billions of dollars in tariffs a month. AIPA
gives the president an array of tools to address national security,
foreign policy, and economic emergencies. But it doesn't mention tariffs,
(01:28):
something many of the justices work quick to point out.
Here are the Chief Justice and Justice Katanji Brown Jackson.
Speaker 5 (01:36):
But when I read the statute, it is telling the
president exactly what he can do investigate, block during the
pendency of an investigation, regulate, direct, and compel, mullify, void,
prevent or prohibit. And I guess what is a little
concerning to me is that your argument suggests that we
should see the word imposed, the phrase impose tariffs in
(01:59):
that se series of things that the president could do.
We don't see that word.
Speaker 4 (02:04):
Well, but the exercise of the power is to impose tariffs, right,
and the statute doesn't use the word tariffs.
Speaker 2 (02:11):
And Justice Neil gorse At, a Trump appointee, expressed alarm
at giving seemingly limitless power to presidents.
Speaker 6 (02:20):
So Congress is a practical matter. Can't get this power
back once it's handed it over to the President's a
one way ratchet towards the gradual but continual accretion of
power in the executive branch and away from the people's
elected representative.
Speaker 2 (02:35):
My guest is constitutional law expert Michael Dorff, a professor
at Cornell Law School. Mike, give me your broad take
on the oral arguments.
Speaker 7 (02:43):
It was difficult to handicap.
Speaker 1 (02:45):
It's clear to me that the three Democratic appointees are
going to vote to a firm and rule for the plaintiffs.
Justice Thomas and almost certainly Justice Alito are going to
rule for the government. I think Justice Kavanaugh pretty strongly
leans towards the government, and then the Chief Justice and
Justices Gorosach and Barrett are harder to handicap because Gorisiach
(03:07):
and Barrett especially asked difficult questions of each side, and
I kind of have a theory of what each one
of them is thinking, but it's it's very difficult to say.
So I come out of this really quite uncertain as
to what they're going to do.
Speaker 2 (03:21):
So a good deal of the argument consisted of an
analysis of the text of AIPA. Several justices quizzed the
Solicitor General on the text not mentioning tariffs. How do
you think the Solicitor General handled that?
Speaker 1 (03:37):
Yeah, I thought He's stuck with his core argument, which
has a number of moving pieces. The first is that
the term regulate importation can include tariffs just as a
matter of ordinary language.
Speaker 7 (03:52):
That's certainly true.
Speaker 1 (03:53):
He also relied on historical understandings dating back to the
founding for some reason to think that that's how the
word was understood. And he has a couple of modern cases.
He's got the Nixon president under the Trading with the
Enemy Act, and he's got another related case. I thought
(04:14):
he had the hardest time dealing with what is really
the plaintiff's best argument, and that is that when Congress
has wanted to give the president tariff authority, it has
said so expressly in lots of other statutes, and so
the omission in this statute does seem to be rather glaring.
(04:37):
So I thought he did a perfectly fine job basically
rehashing what was in his brief.
Speaker 2 (04:46):
It seemed to me like some of the justices weren't
satisfied with Sour's answers, particularly Justice Amy Coney Barrett. You know,
she kept pressing him and just a soda mayor said
answer the question.
Speaker 7 (05:01):
Yeah.
Speaker 1 (05:01):
So that was an important exchange, and I thought that
Justice Barrett wasn't being quite fair to his argument, right,
which was he said not only that did Nixon impose this,
but a Court of Appeals found that Nixon had the authority.
It's true of the Supreme Court denied assert and then
Justice Barrett said, well, it's just an intermediate court of appeals. Well,
(05:21):
that's true, But his argument is not that that ruling
is binding on the Supreme Court. His argument is that
when Congress copied the language from the Trading with the
Enemy Act into the International Economic Emergency's Powers Act, it
was aware that President Nixon had used this for tariff
(05:42):
authority and that that had been affirmed, and so we
should attribute to Congress an intention to carry over the
meaning that had recently been on display.
Speaker 7 (05:53):
That's not a bad argument.
Speaker 1 (05:54):
My own view is that it should fail because even
a good textualist care about how Congress has used the
terms elsewhere, but just sort of standing on its own.
I thought his reliance on the Nixon president was pretty sensible.
Speaker 2 (06:12):
Justice Neil Gorsuch question the Solicitor General for something like
ten minutes. Some of the questioning seemed a little bit hostile.
He questioned him about the extent of the authority Trump
is claiming, saying, well, then can Congress just say we're
tired of legislating or hand it off even the power
to declare war to the president. I mean, he seemed
(06:33):
more aggressive than most of the other justices in questioning
the Solicitor General.
Speaker 1 (06:38):
Yeah, I think that's right, and I think it lines
up with Justice Garsuch's priors, which are very suspicious of
broad delegations to the executive branch. He actually got a
concession out of the Solicitor General. The SG sort of
began by saying that neither the non delegation.
Speaker 7 (06:58):
Doctrine nor the Major.
Speaker 1 (07:00):
Questions doctrine applies with respect to the president's foreign affairs.
Speaker 7 (07:05):
Power, and pressing him.
Speaker 1 (07:07):
Justice Grocich got him to back off of that when
he said, well, what if Congress just gave the president
all of its power to regulate foreign commerce, you know,
do whatever you want. We're sick of it all of
its power more generally, you know, could he do anything
at all in international affairs? And soer basically said, well, no,
that would be different in so of coursious.
Speaker 7 (07:27):
How could it be different? You said that it doesn't
apply at all in.
Speaker 1 (07:29):
Foreign affairs, And so then I thought Justice Garsuch did
a nice job of saying, So, what you're saying is
it applies more deferentially. But the intelligible principal test, which
Justice Gorsuch doesn't like, is already very deferential. You're going
to say it's even more deferential than that. So based
on that exchange, I initially had Justice Garsage in the
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sort of plaintiff's column, but then on the other side
he was pressing Neil Kattil very hard on us. The text, right,
So if you just look at the text, it does
seem to encompass tariff authority. And there in the same
way that I thought it was interesting that the SG
backed off a little bit. I thought Katyo would have
(08:13):
been better served if he had backed off a little
bit and just simply said, yeah, you're right, if you
look at the text in isolation, it does encompass this power.
But that's never how the discourt looks at datutory text,
and it shouldn't in this case.
Speaker 2 (08:27):
Well, let me ask you this, as some of the
justices porning out Congress knew how to write the word tariff.
They wanted tariffs to be included in all these other powers,
why not just put it there?
Speaker 7 (08:36):
Right?
Speaker 1 (08:36):
I think that is sort of the core common sense
argument that the plaintiffs have, and it's a very good one,
and I thought it was going to prevail. That. What
leads me to be a little less certain about that
is the turn the argument took near the end of
Katyo's presentation, when a combination of Justice Barrett and some
of her colleagues pressed on what she said she wasn't
(08:59):
calling but really was calling a greater includes the lesser power, right,
which is, well, look, Congress clearly gave the president the
power to ban all trade with any and all foreign countries,
because that's the plain meaning of some of the terms
that are in the statute, and that's an enormous delegation.
If Congress did that, why would Congress want to deny
(09:21):
to the president the much lesser power to just say, well,
you can have trade with us, but it's going to
be subject to some tariff and that Therefore, maybe Congress
didn't mean to exclude tariffs. Maybe they just thought it
was encompassed within the term regulate. So that's what gave
me some pause, because that's also not a crazy argument.
I do think, and I'm going to put this on
my blog tomorrow, that the way out of that, at
(09:45):
least for Justice Gorsuch, may be that in so far
as this law seems to give the president the power
to declare an emergency whenever he wants and then to
ban all foreign trade or to do some subset of it.
That's a violation of the non delegation doctrine. And therefore
you can't read the statute that broadly, and we can
(10:06):
deal with a ban on all trade when that comes up,
or you can say the president's declaration of an emergency
is subject to some substantial review by the Supreme Court.
There was a point earlier here in the argument when
Justice Kagan was saying, we're going to review only very deferentially,
the president's decision that there's an emergency.
Speaker 7 (10:25):
But you know, I mean, let's be frank here, there
is no emergency. At one point sour said, well, you know,
there's an existential threat, and it's not clear what he
was talking about. Then he said, well, fentanyl is an
existential threat. Well, even if fentyl is an existential threat,
and of course it is to people who are at
risk of overdosing on.
Speaker 1 (10:42):
It, there's no indication whatsoever that that was a legitimate
justification for the tariffs on Canada, which is one of
the reasons why it was invoked. You know, we get
less than one percent of fentanyl from Canada, and you
know Soalar also pointed to the fact that when President
Trump was recently in Asia, he in Jijenping agreed to
some reduction in Chinese precursor chemicals coming over for feednyl.
Speaker 7 (11:06):
You know, that's not.
Speaker 1 (11:07):
A trade agreement, it was an agreement to discuss. So
there's all of this stuff in the background that seems
kind of detached from reality, and that the background as
well the president's you know, conducting foreign policy. The president
is you know, just imposing tariff's willy nilly because he
doesn't like, you know, some commercial that was run by
the government of Ontario, because he doesn't like that Brazil
(11:31):
is enforcing the law against Bolsonaro, whom he sees as
a kindred spirit. The notion that this president is exercising
this power in any way that remotely relates to legitimate
emergencies is just fanciful. And to me, the question is like,
will that break through at all or are they going
to do what they did in the immunity case and
(11:53):
pretend that Trump is a normal president.
Speaker 2 (11:55):
Coming up next, I'll continue this conversation with Cornell Law
professor Michael, or what about the major questions doctrine that
the Court used to block many of President Joe Biden's initiatives.
This is bloomberg. It's the biggest legal test yet of
President Donald Trump's economic agenda, and a majority of Supreme
(12:15):
Court justices signaled some skepticism today about his power to
unilaterally impose sweeping tariffs. Trump says his tariffs are authorized
under the nineteen seventy seven International Emergency Economic Powers Act,
which gives him broad authority to set and change import
duties in an emergency. But Justice Elena Kagan questioned the
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Solicitor General John Sower about the declared emergencies, referring to
the many cases the administration has brought to the Court
on an emergency basis since Trump took office.
Speaker 5 (12:51):
And you know, we've had cases recently which deals with
the president's emergency powers. And it turns out we're in
emergencies everything all the time, about half the world. Well,
this particular emergency is particularly existential, as Executive Order fourteen
two five seven says, And of course no one disputes
the existential nature of the federal crisis.
Speaker 2 (13:09):
I've been talking to Cornell Law School Professor Michael Darf, So,
let's talk about the Major Questions doctrine, which came up
over and over, and at one point Justice Gorsuch told
Neil Katiau, the attorney for the small businesses, I don't
think you can win without it. And Chief Justice John
Roberts indicated that he saw the case as being governed
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by the Major Questions doctrine.
Speaker 7 (13:35):
Yeah.
Speaker 1 (13:35):
So the Major Questions doctrine originates in some cases a
couple of decades ago, but it really took its current
shape in a case from a few years ago called
West Virginia against EPA. And the basic idea is that
if you've got a statute that the federal executive brand
or the president claims gives them the power to regulate
(14:00):
some gigantic area, like a big portion of the economy
or which is clearly going on here, then the president
needs to point to specific authorization for what he's doing
in the statute. It's a way of reading the statute
to say, we're not going to presume that Congress delegated
(14:23):
enormous power to the president unless Congress did so clearly.
Speaker 7 (14:27):
So, in lawyers.
Speaker 1 (14:29):
Speak, the Major Questions doctrine can be understood as a
kind of clear statement rule.
Speaker 7 (14:34):
So that's the background.
Speaker 1 (14:35):
Now there's a there's a kind of technical debate between
different justices about what exactly the major questions doctrine is.
So Justice Barrett has said that she thinks it is
simply an interpretive canon. That is to say, it's out there.
It's a way of us figuring out what Congress actually
(14:56):
intended in this statute, because you know, Congress statutes where
they have, you know, meant to give all this power
without saying explicitly. So it relates back to something Justice
Scalia said in a much earlier case, which is, Congress
doesn't hide elephants in mouseholes, right, just a basic idea
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of how you get at what Congress intended. That's one
view of the major questions doctrine. Another view of the
Major Questions doctrine is that it is a kind of
subconstitutional way of implementing the non delegation doctrine, the notion
that Congress can't give away its lawmaking power. It's got
(15:36):
to provide an intelligible principle. And so if there's some
very you know, monumental exercise of power, we're not going
to see Congress as having given that to the president
without explicit language, because the explicit language is what will
provide the intelligible principle. In the absence of that, we
will just assume the power hasn't been delegated. That's what
(15:57):
I mean by saying that it's related to this constitutional
So there's that debate. At one point, Neil Katyel seemed
to lean into the Barrett position to say, well, it's
just a matter of figuring out what Congress was up to.
Doesn't really matter for this case that he can he
can win regardless of what the nature of the Major
Questions doctrine is. When just as Gorsuch said to him,
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I don't think you can win about the Major Questions doctrine.
I think what he was getting at was that the statute,
just taken at face value, uses the word regulate, which
historically has, at least in some contexts, included the power
to impose tariffs. I should say I think Justice Gorsach
is wrong about that. I mean, he might be right
(16:41):
as a prediction that, but I think he's wrong in that.
I think Katyl has a good argument that we don't
need the Major Questions doctrine, but we also don't. We
never read a statute literally and in isolation. That is
the text of the statute read against the backdrop of
all these other statutes Congress has enacted where it use
(17:04):
the word tariff or duty or custom or something like that,
and didn't use it here, tells us about the literal
meaning of the language here, So that I think there
is a textualist answer that doesn't rely on the Major
Questions doctrine that under which the plaintiffs win.
Speaker 7 (17:20):
But you know, I'm just making an assessment.
Speaker 1 (17:24):
If Justice Scurtius thinks that they can't win without the
Major Questions doctrine, then that suggests that if Cato is
going to win, it's going to be with the Major
Questions doctrine.
Speaker 2 (17:33):
So, I mean, the conservative justices use the Major Questions
doctrine to block President Biden in his initiatives on student
loan forgiveness, coronavirus vaccine mandates, and climate change. How would
they reconcile it if they allow President Trump to exercise
(17:53):
sweeping emergency powers with these global tariffs.
Speaker 7 (17:58):
Right, Well, so if they want.
Speaker 2 (17:59):
To reconcile it, I guess right.
Speaker 1 (18:01):
So the short answer is I don't think they can
in a way that is persuasive to me. But you know,
before the Supreme Court overruled the doctrine of Chevron deference
to administrative agencies in the Lower Bright case a year
and a half ago. Even then, there was a lot
of scholarship showing, I think, persuasively that the real meaning
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of the Chevron defference doctrine was the Court deferred to
decisions it liked and didn't defer to decisions it didn't.
Speaker 7 (18:32):
Like, and that had a political balance to it.
Speaker 1 (18:36):
I think it would be child's play to write an
opinion here that says, of course, we have the major
questions doctrine, and what that requires is a clear delegation.
Here there is a clear delegation because regulate historically has
included the power to have tariffs and so forth. Right,
that is the threshold for applying the Major Questions doctrine
is a finding that Congress didn't clearly delegate. So they
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would just say, well, Congress here in the text clearly
did delegate. I'm not saying that would be persuasive, but
I think that's that's what they would do.
Speaker 2 (19:06):
And where did the you mentioned the non delegation doctrine?
Will that play in here.
Speaker 1 (19:13):
Oh sure, So, I mean that's that was the line
of questioning that Neil that Justice Courses was pursuing against
the Solicitor General, which is, he wanted him to get
this SG to admit and successfully got him to admit
that under the government's theory of the case, Congress could
(19:35):
give to the president the authority to regulate the entire
economy if if there's any non delegation doctrine at all, Right,
there's no intelligible principle of Congress saying hey, if you
think it's a good idea, do whatever you want with
respect to foreign trade. And that's why sour the SG
eventually backed off of this position that there's no non
(19:57):
delegation doctrine in this area.
Speaker 2 (19:59):
So you wouldn't be surprised then, if the court ends
up upholding Trump's ability to impose these tariffs undra AIPA.
Speaker 7 (20:10):
I wouldn't be surprised with the result either way.
Speaker 1 (20:12):
Again, as I said, I think that the given my priors,
I thought that the result of the argument is that
the plaintiffs should win. That's what I thought before the argument,
and I was heartened by the questions that at least
three of the conservative justices asked of the Solicitor General.
But this turn that the argument took near the end
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suggests to me that it's certainly not a sure thing.
Speaker 2 (20:39):
Anything else that struck you, Mike one thing.
Speaker 1 (20:43):
So in my preview of the case on my blog
on Monday, I pointed to some remarkable statements very early
in the government's opening brief, quoting President Trump about how
magnificent these tariffs are. And I thought that was potentially
counterproductive because you know, it included, you know, typical Trumpian
(21:06):
rhetoric about how our country is, you know, going to
hell in a handbasket, and you know, thanks to me
and my beautiful tariffs, everything's working out. But if you
get rid of this, it'll be, you know, armageddon. I'm
not really exaggerating much. That's not using literal language, and
you know, it's just it was over the top rhetoric,
and it was also economically illiterate, right, the claim that
(21:28):
this is doing wondrous for the economy. And I noticed
during the course of the argument that Sour would occasionally
give versions of that not quite as over the top
as in the.
Speaker 7 (21:40):
Brief, and he seemed to get no reaction at all.
Speaker 1 (21:43):
From any of the justices except for Justice Kavanaugh, who
did seem to give some credit to Trump forgetting various
policies adopted In virtuous He pointed to the India tariffs
as serving you know, the foreign policy goal of getting
Russia to change its stand in the war against Ukraine,
(22:05):
and you know the effect on the fentnal precursors with China.
But for the most part, it struck me that the
reality of what's going on, which is, you know, this
mad king randomly imposing tariffs and then taking them off
because of.
Speaker 7 (22:19):
His whims, didn't really penetrate.
Speaker 1 (22:21):
And I think that's probably good for the government's case,
because the more that you look at what's really going
on here, the less it looks like any kind of
sensible policy.
Speaker 2 (22:30):
We'll see what the decision is. Thanks so much, Mike.
That's Professor Michael Dorf of Cornell Law School. Coming up
next on the Bloomberg Lawn Show, we'll talk to a
trade lawyer about the oral arguments. The US Supreme Court
appeared skeptical of President Donald Trump sweeping global tariffs, as
key Justice Is suggested he'd overstepped his authority with his
(22:54):
signature economic policy. My guest is Timothy Bright Bell, partner
and coach of the International Trade practice at Wiley Rhein.
Tim tell us what's at stake in this case.
Speaker 8 (23:07):
This case involves the centerpiece of President Trump's economic agenda.
This argument is the biggest trade case the Supreme Court
has ever heard, and it goes straight to the key
constitutional issue of who has the power to impose tariffs,
the US Congress or the president. President Trump says the
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law that he used, the International Emergency Economic Powers Act,
gives him the power to regulate imports, and that that
includes the power to impose tariffs, including fentanyl tariffs on China, Canada,
and Mexico, and reciprocal economic tariffs on almost all countries.
Whereas the plaintiffs in this case say that Congress has
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that power and cannot delegate that power, and that AIPA,
which has never before been used to impose tariffs, does
not include that power and authority. So that is what
is at stake. And of course the tariffs under AEPA
have led to collection of hundreds of billions of dollars
of tariffs already, so it's very high economic stakes for
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the companies and industries that have paid those tariffs as well.
Speaker 2 (24:16):
Let's talk about some of the analysis during the oral arguments,
and you know, there's always a textual analysis these days,
and some of the justice's concerns that the text of
the statute doesn't mention the word tariffs at all exactly.
Speaker 8 (24:35):
The argument focused quite heavily on this law used by
President Trump AEPA and whether that law, which gives the
president the power to regulate imports, also includes the power
to impose tariffs. That really dominated most of the hearing,
and the justices asked very difficult questions on both sides.
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The administration said and the Solicitor General and the argument
said that the ability to impose tariffs is a core
application of the ability to regulate imports in a historical context,
said that, of course, the power to regulate imports would
be read to include tariffs because tariffs have been used
(25:17):
throughout our country's history. On the other hand, several justices
were skeptical of that, and the plaintiffs in this case
said that when the delegation includes tariff authority, there is
always specific language to that effect, and that there are
always conditions and tests and agency decisions that have to
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go into that tariff power. So there was a good
amount of the argument focused on those issues, and again,
whether the power to regulate imports includes the power to
impose tariffs, And.
Speaker 2 (25:49):
What did you think of a Solicitor General arguing that
the Trading with the Enemy Act of nineteen seventeen gives
the president authority and also to a nineteen seventy six
tariff by President Richard Nixon that the Supreme Court upheld.
Speaker 8 (26:08):
Well, I think both sides had responses there. So the
Solicitor General argued, yes, that the Trading with the Enemy
Act was used to impose tariffs in a prior situation
by President Nixon, and that there's no reason to think
that anything had changed when AEPA had passed. On the
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other hand, I think the plaintiffs had a response to
that in terms of the fact again that when tariffs
are involved, there are always conditions on their use, there
are always specific procedures, and also the fact that the
reality is that no other president in fifty years has
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used AIPA to impose tariffs. So a lot of discussion
on that, I think, tough questions from many of the justices,
and that is one of the shoes that's joined and
will have to be decided.
Speaker 2 (27:02):
What role does the Major Questions doctrine play here? It's
was mentioned several times, and the Chief Justice seemed to
think it was important Justice score such at one point
said to Neil Katyal, I think you're going to need
the Major Questions doctrine.
Speaker 8 (27:21):
Yes. So the question here is does the Major Questions
Doctrine require a clear statement in AIPA that it includes
the power to impose tariffs? And this Court has not
hesitated to start using that doctrine more broadly, but I
think you're right that the justices had some concerns about
(27:44):
pursuing it in this venue. And again the question comes
to is the power to tariff implied in the power
to regulate imports or if it's not. Was this a
question that Congress was required to state clearly that tariffs
were a part of what was envisioned by the new law.
Speaker 2 (28:08):
Do you think that how the conservative justices used the
Major Questions doctrine to stop several of Biden's initiatives? Do
you think that that is something that they'll have to
explain if they allow Trump's tariffs to go through.
Speaker 8 (28:25):
I think it's an interesting question whether they'll go there,
or whether they will just focus on the language of
AIBA and this issue of whether the power to regulate
imports includes the power of tariff and I think several
justices went down that road. I don't think just because
these doctrines have been used in other cases, such as
the Biden student bound forgiveness case, doesn't necessarily mean that
(28:47):
they will have to address it in this opinion if
they have other bases for finding that the tariffs were
legal or improper in any way.
Speaker 2 (28:57):
What was your take on Justice Core, such as questioning
of the Solicitor General early in the arguments where he
expressed concerns about the extent of presidential power that Trump
is claiming and where it could lead.
Speaker 8 (29:16):
Yes, I thought that was very interesting. Justice cours such
as you mentioned, ask the hypothetical of if Congress can
delegate the tariff authority, what would prohibit Congress from delegating everything,
including the power to declare war, which is clearly given
in the Constitution to Congress and Justice. Corsich also called
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the government's reading of its tariff power as a one
way ratchet and an accretion of power to the president,
and one that Congress could not recover. Without a supermajority
or a veto proof majority, and so that was a
very interesting discussion. I'm certainly raising some concerns about the limits,
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if any, on the authority that the government was claiming.
Speaker 2 (30:03):
And where does the non delegation doctrine that Gorsuch was
talking about fit in.
Speaker 8 (30:09):
Well, again, Congress, under the non delegation doctrine, Congress cannot
transfer to another branch hours that are strictly and exclusively legislative.
But it may confer substantial discretion on executive agencies to
implement and enforce the laws. So that's the doctrine in general,
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and the courts have interpreted that to say that a
delegation of this discretion is constitutional as long as Congress
lays down an intelligible principle to which the person or
the agency is directed to conform. And that intelligible principle
standard is a fairly low bar to clear. It's only
(30:53):
been found lacking in a couple of statutes. So I
don't think non delegation plays as much of a role
as the major questions doctrine, at least from how the argument,
the oral argument played out.
Speaker 2 (31:07):
You know, it just seemed to me as if the
Trump administration is having to bend over backwards and torture
the language to try to get to the result that
they want, whereas a plane reading wouldn't include tariffs.
Speaker 8 (31:22):
Well, I think that really is the key issue. Again,
the Solicitor General said, of course it would be understood,
and implied that the power to regulate imports includes the
power to impose tariffs, and in fact, adjusting imports is
another definition of regulating, and also the fact that since
(31:45):
the founding, historically tariffs have been a primary way to
regulate imports. So the Solicitor General was arguing it was
a natural reading of the law, But the justices were
skeptical and asked tough questions and noted that in every
other law where tariffs are involved, the power is made
very explicitly clear and it comes with conditions.
Speaker 2 (32:08):
Where do you think the justices are going to come
out here.
Speaker 8 (32:12):
Well, I'm not in the business of making predictions. Generally,
I think my own personal view is that the court's
three Democratic justices probably vote against these tariffs. And then
the question is whether some of the majority of the
court have similar concerns about the president's use of this law.
And I do think that it's still a very close decision.
(32:34):
It could go either way based on the questioning. My
own view, I thought Chief Justice Roberts and Justice Barrett
and Justice Gorsich were perhaps more skeptical of the president's
tariff authority under a than the other justices. But again,
that was just the oral argument. We don't really know
how it will come out. I guess the only other
(32:56):
point I would make is, although it was discussed the
oral argument, I have a hard time seeing this court
making a split decision that some of President Trump's tariffs
are acceptable but others are not. I mean, I suspect
the courts would prefer not to be in the business
of making those judgment calls going forward. So I could
be wrong, but I think the Court will either decide yes,
(33:19):
the power to regulate imports includes the power to tariff,
or no it does not, rather than some sort of
split decision on the fentanyl tariffs versus the reciprocal tariffs.
Speaker 2 (33:29):
So if the court rules against Trump, what happens next,
I mean, what happens to his tariffs?
Speaker 8 (33:35):
Well, two things would happen. First of all, there would
likely be some sort of a refund process for importers
that paid the tariffs during this time, and there is
some precedent for that before that was discussed during the
oral argument a situation where the court struck down a
harbor maintenance tax and there was basically a process where
companies could file claims for the amount of the tax
(33:58):
that they paid. So Barretts was concerned that this could
be a mess and could be very unwieldy, and so
there were some questions on that point. I guess the
more important point is what will the president do going forward?
And I think it's clear that tariffs are still a
cornerstone of this administration's economic policy, and if the Court
(34:18):
says that the President cannot use AIPA, the president will
likely pivot to one of several other trade tools that
are available, and the Court mentioned many of these, including
Section one twenty two, the section two thirty two, the
National Security Law, which the administration has already made quite
(34:39):
a bit of use of in this administration, Section three
zero one, and so forth. The limit on those laws
is that they do require studies or actions by other agencies.
So Section two thirty two requires a study and a
report by the Commerce Department and consultation with Defense Department.
In order to decide that imports of a certain product
(35:02):
like semiconductors or pharmaceuticals are a threat to national security. Similarly,
Section three ZHO one, which was the law used to
impose tariffs on China during the first Trump administration, also
requires a detailed study by the US Trade representative with
public inputs. So those tools, for the most part, cannot
(35:26):
be used as quickly as AEPA was used by President.
Speaker 2 (35:29):
Trump or anything that was striking to you in the
oral arguments.
Speaker 8 (35:34):
I thought it was interesting when Chief Justice Roberts said
that it seemed to him that using this law to
have the president's foreign affairs power trump the legislative power
to regulate trade seems to neutralize Congress's power. So I
thought that was notable. Justice Barrett asked whether there was
any other time in history with a phrase regulate imports
(35:57):
was read to include the imposition of tear riffs, and
she seemed not entirely convinced by the response from the
Solicitor General, and then Justice Kavanaugh asked, you know, the
historical perspective was the tariff power the kind of power
understood by Congress to exist when the AEPA law was passed,
(36:19):
and he also did ask why in prior economic emergencies
have other presidents not used IP but to invoke tariffs.
So again, very tough questions on all sides, and still
a very close case as to how this will ultimately
come out.
Speaker 2 (36:34):
Thanks so much for joining me, Jim. That's Timothy Brightbill
of Wilie Rhine, and that's it for this edition of
The Bloomberg Law Show. Remember you can always get the
latest legal news on our Bloomberg Law Podcast. You can
find them on Apple Podcasts, Spotify, and at www dot
Bloomberg dot com, slash podcast Slash Law, and remember to
(36:56):
tune into The Bloomberg Law Show every weeknight at ten
pm Wall Street Time. I'm June Grosso and you're listening
to Bloomberg
Speaker 1 (37:08):
M
This is Bloomberg Law with June Grosseo from Bloomberg Radio.
Speaker 2 (00:08):
It's one of the most important cases of the term,
a test of presidential power where President Trump's signature economic
policy is at stake. After nearly three hours of oral arguments,
it appears that a majority of Supreme Court justices across
the ideological spectrum are skeptical that Trump has the legal
(00:29):
authority to impose billions of dollars of tariffs on goods
from nearly every country. Chief Justice John Roberts and Justice
Sonya Sotomayor said, the tariffs are taxes, and the Constitution
gives taxing power to Congress.
Speaker 3 (00:46):
It's a congressional power, not a presidential power to tax.
And you want to say tarifts are not taxes, but
that's exactly what they are, degenerating money from American citizens revenue.
Speaker 4 (00:58):
The vehicle is in position of taxes on Americans, and
that has always been the core power of Congress.
Speaker 2 (01:06):
Trump is arguing that an emergency powers law, the International
Emergency Economic Powers Act, or AIPA, authorizes him to collect
tens of billions of dollars in tariffs a month. AIPA
gives the president an array of tools to address national security,
foreign policy, and economic emergencies. But it doesn't mention tariffs,
(01:28):
something many of the justices work quick to point out.
Here are the Chief Justice and Justice Katanji Brown Jackson.
Speaker 5 (01:36):
But when I read the statute, it is telling the
president exactly what he can do investigate, block during the
pendency of an investigation, regulate, direct, and compel, mullify, void,
prevent or prohibit. And I guess what is a little
concerning to me is that your argument suggests that we
should see the word imposed, the phrase impose tariffs in
(01:59):
that se series of things that the president could do.
We don't see that word.
Speaker 4 (02:04):
Well, but the exercise of the power is to impose tariffs, right,
and the statute doesn't use the word tariffs.
Speaker 2 (02:11):
And Justice Neil gorse At, a Trump appointee, expressed alarm
at giving seemingly limitless power to presidents.
Speaker 6 (02:20):
So Congress is a practical matter. Can't get this power
back once it's handed it over to the President's a
one way ratchet towards the gradual but continual accretion of
power in the executive branch and away from the people's
elected representative.
Speaker 2 (02:35):
My guest is constitutional law expert Michael Dorff, a professor
at Cornell Law School. Mike, give me your broad take
on the oral arguments.
Speaker 7 (02:43):
It was difficult to handicap.
Speaker 1 (02:45):
It's clear to me that the three Democratic appointees are
going to vote to a firm and rule for the plaintiffs.
Justice Thomas and almost certainly Justice Alito are going to
rule for the government. I think Justice Kavanaugh pretty strongly
leans towards the government, and then the Chief Justice and
Justices Gorosach and Barrett are harder to handicap because Gorisiach
(03:07):
and Barrett especially asked difficult questions of each side, and
I kind of have a theory of what each one
of them is thinking, but it's it's very difficult to say.
So I come out of this really quite uncertain as
to what they're going to do.
Speaker 2 (03:21):
So a good deal of the argument consisted of an
analysis of the text of AIPA. Several justices quizzed the
Solicitor General on the text not mentioning tariffs. How do
you think the Solicitor General handled that?
Speaker 1 (03:37):
Yeah, I thought He's stuck with his core argument, which
has a number of moving pieces. The first is that
the term regulate importation can include tariffs just as a
matter of ordinary language.
Speaker 7 (03:52):
That's certainly true.
Speaker 1 (03:53):
He also relied on historical understandings dating back to the
founding for some reason to think that that's how the
word was understood. And he has a couple of modern cases.
He's got the Nixon president under the Trading with the
Enemy Act, and he's got another related case. I thought
(04:14):
he had the hardest time dealing with what is really
the plaintiff's best argument, and that is that when Congress
has wanted to give the president tariff authority, it has
said so expressly in lots of other statutes, and so
the omission in this statute does seem to be rather glaring.
(04:37):
So I thought he did a perfectly fine job basically
rehashing what was in his brief.
Speaker 2 (04:46):
It seemed to me like some of the justices weren't
satisfied with Sour's answers, particularly Justice Amy Coney Barrett. You know,
she kept pressing him and just a soda mayor said
answer the question.
Speaker 7 (05:01):
Yeah.
Speaker 1 (05:01):
So that was an important exchange, and I thought that
Justice Barrett wasn't being quite fair to his argument, right,
which was he said not only that did Nixon impose this,
but a Court of Appeals found that Nixon had the authority.
It's true of the Supreme Court denied assert and then
Justice Barrett said, well, it's just an intermediate court of appeals. Well,
(05:21):
that's true, But his argument is not that that ruling
is binding on the Supreme Court. His argument is that
when Congress copied the language from the Trading with the
Enemy Act into the International Economic Emergency's Powers Act, it
was aware that President Nixon had used this for tariff
(05:42):
authority and that that had been affirmed, and so we
should attribute to Congress an intention to carry over the
meaning that had recently been on display.
Speaker 7 (05:53):
That's not a bad argument.
Speaker 1 (05:54):
My own view is that it should fail because even
a good textualist care about how Congress has used the
terms elsewhere, but just sort of standing on its own.
I thought his reliance on the Nixon president was pretty sensible.
Speaker 2 (06:12):
Justice Neil Gorsuch question the Solicitor General for something like
ten minutes. Some of the questioning seemed a little bit hostile.
He questioned him about the extent of the authority Trump
is claiming, saying, well, then can Congress just say we're
tired of legislating or hand it off even the power
to declare war to the president. I mean, he seemed
(06:33):
more aggressive than most of the other justices in questioning
the Solicitor General.
Speaker 1 (06:38):
Yeah, I think that's right, and I think it lines
up with Justice Garsuch's priors, which are very suspicious of
broad delegations to the executive branch. He actually got a
concession out of the Solicitor General. The SG sort of
began by saying that neither the non delegation.
Speaker 7 (06:58):
Doctrine nor the Major.
Speaker 1 (07:00):
Questions doctrine applies with respect to the president's foreign affairs.
Speaker 7 (07:05):
Power, and pressing him.
Speaker 1 (07:07):
Justice Grocich got him to back off of that when
he said, well, what if Congress just gave the president
all of its power to regulate foreign commerce, you know,
do whatever you want. We're sick of it all of
its power more generally, you know, could he do anything
at all in international affairs? And soer basically said, well, no,
that would be different in so of coursious.
Speaker 7 (07:27):
How could it be different? You said that it doesn't
apply at all in.
Speaker 1 (07:29):
Foreign affairs, And so then I thought Justice Garsuch did
a nice job of saying, So, what you're saying is
it applies more deferentially. But the intelligible principal test, which
Justice Gorsuch doesn't like, is already very deferential. You're going
to say it's even more deferential than that. So based
on that exchange, I initially had Justice Garsage in the
(07:51):
sort of plaintiff's column, but then on the other side
he was pressing Neil Kattil very hard on us. The text, right,
So if you just look at the text, it does
seem to encompass tariff authority. And there in the same
way that I thought it was interesting that the SG
backed off a little bit. I thought Katyo would have
(08:13):
been better served if he had backed off a little
bit and just simply said, yeah, you're right, if you
look at the text in isolation, it does encompass this power.
But that's never how the discourt looks at datutory text,
and it shouldn't in this case.
Speaker 2 (08:27):
Well, let me ask you this, as some of the
justices porning out Congress knew how to write the word tariff.
They wanted tariffs to be included in all these other powers,
why not just put it there?
Speaker 7 (08:36):
Right?
Speaker 1 (08:36):
I think that is sort of the core common sense
argument that the plaintiffs have, and it's a very good one,
and I thought it was going to prevail. That. What
leads me to be a little less certain about that
is the turn the argument took near the end of
Katyo's presentation, when a combination of Justice Barrett and some
of her colleagues pressed on what she said she wasn't
(08:59):
calling but really was calling a greater includes the lesser power, right,
which is, well, look, Congress clearly gave the president the
power to ban all trade with any and all foreign countries,
because that's the plain meaning of some of the terms
that are in the statute, and that's an enormous delegation.
If Congress did that, why would Congress want to deny
(09:21):
to the president the much lesser power to just say, well,
you can have trade with us, but it's going to
be subject to some tariff and that Therefore, maybe Congress
didn't mean to exclude tariffs. Maybe they just thought it
was encompassed within the term regulate. So that's what gave
me some pause, because that's also not a crazy argument.
I do think, and I'm going to put this on
my blog tomorrow, that the way out of that, at
(09:45):
least for Justice Gorsuch, may be that in so far
as this law seems to give the president the power
to declare an emergency whenever he wants and then to
ban all foreign trade or to do some subset of it.
That's a violation of the non delegation doctrine. And therefore
you can't read the statute that broadly, and we can
(10:06):
deal with a ban on all trade when that comes up,
or you can say the president's declaration of an emergency
is subject to some substantial review by the Supreme Court.
There was a point earlier here in the argument when
Justice Kagan was saying, we're going to review only very deferentially,
the president's decision that there's an emergency.
Speaker 7 (10:25):
But you know, I mean, let's be frank here, there
is no emergency. At one point sour said, well, you know,
there's an existential threat, and it's not clear what he
was talking about. Then he said, well, fentanyl is an
existential threat. Well, even if fentyl is an existential threat,
and of course it is to people who are at
risk of overdosing on.
Speaker 1 (10:42):
It, there's no indication whatsoever that that was a legitimate
justification for the tariffs on Canada, which is one of
the reasons why it was invoked. You know, we get
less than one percent of fentanyl from Canada, and you
know Soalar also pointed to the fact that when President
Trump was recently in Asia, he in Jijenping agreed to
some reduction in Chinese precursor chemicals coming over for feednyl.
Speaker 7 (11:06):
You know, that's not.
Speaker 1 (11:07):
A trade agreement, it was an agreement to discuss. So
there's all of this stuff in the background that seems
kind of detached from reality, and that the background as
well the president's you know, conducting foreign policy. The president
is you know, just imposing tariff's willy nilly because he
doesn't like, you know, some commercial that was run by
the government of Ontario, because he doesn't like that Brazil
(11:31):
is enforcing the law against Bolsonaro, whom he sees as
a kindred spirit. The notion that this president is exercising
this power in any way that remotely relates to legitimate
emergencies is just fanciful. And to me, the question is like,
will that break through at all or are they going
to do what they did in the immunity case and
(11:53):
pretend that Trump is a normal president.
Speaker 2 (11:55):
Coming up next, I'll continue this conversation with Cornell Law
professor Michael, or what about the major questions doctrine that
the Court used to block many of President Joe Biden's initiatives.
This is bloomberg. It's the biggest legal test yet of
President Donald Trump's economic agenda, and a majority of Supreme
(12:15):
Court justices signaled some skepticism today about his power to
unilaterally impose sweeping tariffs. Trump says his tariffs are authorized
under the nineteen seventy seven International Emergency Economic Powers Act,
which gives him broad authority to set and change import
duties in an emergency. But Justice Elena Kagan questioned the
(12:39):
Solicitor General John Sower about the declared emergencies, referring to
the many cases the administration has brought to the Court
on an emergency basis since Trump took office.
Speaker 5 (12:51):
And you know, we've had cases recently which deals with
the president's emergency powers. And it turns out we're in
emergencies everything all the time, about half the world. Well,
this particular emergency is particularly existential, as Executive Order fourteen
two five seven says, And of course no one disputes
the existential nature of the federal crisis.
Speaker 2 (13:09):
I've been talking to Cornell Law School Professor Michael Darf, So,
let's talk about the Major Questions doctrine, which came up
over and over, and at one point Justice Gorsuch told
Neil Katiau, the attorney for the small businesses, I don't
think you can win without it. And Chief Justice John
Roberts indicated that he saw the case as being governed
(13:32):
by the Major Questions doctrine.
Speaker 7 (13:35):
Yeah.
Speaker 1 (13:35):
So the Major Questions doctrine originates in some cases a
couple of decades ago, but it really took its current
shape in a case from a few years ago called
West Virginia against EPA. And the basic idea is that
if you've got a statute that the federal executive brand
or the president claims gives them the power to regulate
(14:00):
some gigantic area, like a big portion of the economy
or which is clearly going on here, then the president
needs to point to specific authorization for what he's doing
in the statute. It's a way of reading the statute
to say, we're not going to presume that Congress delegated
(14:23):
enormous power to the president unless Congress did so clearly.
Speaker 7 (14:27):
So, in lawyers.
Speaker 1 (14:29):
Speak, the Major Questions doctrine can be understood as a
kind of clear statement rule.
Speaker 7 (14:34):
So that's the background.
Speaker 1 (14:35):
Now there's a there's a kind of technical debate between
different justices about what exactly the major questions doctrine is.
So Justice Barrett has said that she thinks it is
simply an interpretive canon. That is to say, it's out there.
It's a way of us figuring out what Congress actually
(14:56):
intended in this statute, because you know, Congress statutes where
they have, you know, meant to give all this power
without saying explicitly. So it relates back to something Justice
Scalia said in a much earlier case, which is, Congress
doesn't hide elephants in mouseholes, right, just a basic idea
(15:16):
of how you get at what Congress intended. That's one
view of the major questions doctrine. Another view of the
Major Questions doctrine is that it is a kind of
subconstitutional way of implementing the non delegation doctrine, the notion
that Congress can't give away its lawmaking power. It's got
(15:36):
to provide an intelligible principle. And so if there's some
very you know, monumental exercise of power, we're not going
to see Congress as having given that to the president
without explicit language, because the explicit language is what will
provide the intelligible principle. In the absence of that, we
will just assume the power hasn't been delegated. That's what
(15:57):
I mean by saying that it's related to this constitutional
So there's that debate. At one point, Neil Katyel seemed
to lean into the Barrett position to say, well, it's
just a matter of figuring out what Congress was up to.
Doesn't really matter for this case that he can he
can win regardless of what the nature of the Major
Questions doctrine is. When just as Gorsuch said to him,
(16:20):
I don't think you can win about the Major Questions doctrine.
I think what he was getting at was that the statute,
just taken at face value, uses the word regulate, which
historically has, at least in some contexts, included the power
to impose tariffs. I should say I think Justice Gorsach
is wrong about that. I mean, he might be right
(16:41):
as a prediction that, but I think he's wrong in that.
I think Katyl has a good argument that we don't
need the Major Questions doctrine, but we also don't. We
never read a statute literally and in isolation. That is
the text of the statute read against the backdrop of
all these other statutes Congress has enacted where it use
(17:04):
the word tariff or duty or custom or something like that,
and didn't use it here, tells us about the literal
meaning of the language here, So that I think there
is a textualist answer that doesn't rely on the Major
Questions doctrine that under which the plaintiffs win.
Speaker 7 (17:20):
But you know, I'm just making an assessment.
Speaker 1 (17:24):
If Justice Scurtius thinks that they can't win without the
Major Questions doctrine, then that suggests that if Cato is
going to win, it's going to be with the Major
Questions doctrine.
Speaker 2 (17:33):
So, I mean, the conservative justices use the Major Questions
doctrine to block President Biden in his initiatives on student
loan forgiveness, coronavirus vaccine mandates, and climate change. How would
they reconcile it if they allow President Trump to exercise
(17:53):
sweeping emergency powers with these global tariffs.
Speaker 7 (17:58):
Right, Well, so if they want.
Speaker 2 (17:59):
To reconcile it, I guess right.
Speaker 1 (18:01):
So the short answer is I don't think they can
in a way that is persuasive to me. But you know,
before the Supreme Court overruled the doctrine of Chevron deference
to administrative agencies in the Lower Bright case a year
and a half ago. Even then, there was a lot
of scholarship showing, I think, persuasively that the real meaning
(18:25):
of the Chevron defference doctrine was the Court deferred to
decisions it liked and didn't defer to decisions it didn't.
Speaker 7 (18:32):
Like, and that had a political balance to it.
Speaker 1 (18:36):
I think it would be child's play to write an
opinion here that says, of course, we have the major
questions doctrine, and what that requires is a clear delegation.
Here there is a clear delegation because regulate historically has
included the power to have tariffs and so forth. Right,
that is the threshold for applying the Major Questions doctrine
is a finding that Congress didn't clearly delegate. So they
(19:00):
would just say, well, Congress here in the text clearly
did delegate. I'm not saying that would be persuasive, but
I think that's that's what they would do.
Speaker 2 (19:06):
And where did the you mentioned the non delegation doctrine?
Will that play in here.
Speaker 1 (19:13):
Oh sure, So, I mean that's that was the line
of questioning that Neil that Justice Courses was pursuing against
the Solicitor General, which is, he wanted him to get
this SG to admit and successfully got him to admit
that under the government's theory of the case, Congress could
(19:35):
give to the president the authority to regulate the entire
economy if if there's any non delegation doctrine at all, Right,
there's no intelligible principle of Congress saying hey, if you
think it's a good idea, do whatever you want with
respect to foreign trade. And that's why sour the SG
eventually backed off of this position that there's no non
(19:57):
delegation doctrine in this area.
Speaker 2 (19:59):
So you wouldn't be surprised then, if the court ends
up upholding Trump's ability to impose these tariffs undra AIPA.
Speaker 7 (20:10):
I wouldn't be surprised with the result either way.
Speaker 1 (20:12):
Again, as I said, I think that the given my priors,
I thought that the result of the argument is that
the plaintiffs should win. That's what I thought before the argument,
and I was heartened by the questions that at least
three of the conservative justices asked of the Solicitor General.
But this turn that the argument took near the end
(20:36):
suggests to me that it's certainly not a sure thing.
Speaker 2 (20:39):
Anything else that struck you, Mike one thing.
Speaker 1 (20:43):
So in my preview of the case on my blog
on Monday, I pointed to some remarkable statements very early
in the government's opening brief, quoting President Trump about how
magnificent these tariffs are. And I thought that was potentially
counterproductive because you know, it included, you know, typical Trumpian
(21:06):
rhetoric about how our country is, you know, going to
hell in a handbasket, and you know, thanks to me
and my beautiful tariffs, everything's working out. But if you
get rid of this, it'll be, you know, armageddon. I'm
not really exaggerating much. That's not using literal language, and
you know, it's just it was over the top rhetoric,
and it was also economically illiterate, right, the claim that
(21:28):
this is doing wondrous for the economy. And I noticed
during the course of the argument that Sour would occasionally
give versions of that not quite as over the top
as in the.
Speaker 7 (21:40):
Brief, and he seemed to get no reaction at all.
Speaker 1 (21:43):
From any of the justices except for Justice Kavanaugh, who
did seem to give some credit to Trump forgetting various
policies adopted In virtuous He pointed to the India tariffs
as serving you know, the foreign policy goal of getting
Russia to change its stand in the war against Ukraine,
(22:05):
and you know the effect on the fentnal precursors with China.
But for the most part, it struck me that the
reality of what's going on, which is, you know, this
mad king randomly imposing tariffs and then taking them off
because of.
Speaker 7 (22:19):
His whims, didn't really penetrate.
Speaker 1 (22:21):
And I think that's probably good for the government's case,
because the more that you look at what's really going
on here, the less it looks like any kind of
sensible policy.
Speaker 2 (22:30):
We'll see what the decision is. Thanks so much, Mike.
That's Professor Michael Dorf of Cornell Law School. Coming up
next on the Bloomberg Lawn Show, we'll talk to a
trade lawyer about the oral arguments. The US Supreme Court
appeared skeptical of President Donald Trump sweeping global tariffs, as
key Justice Is suggested he'd overstepped his authority with his
(22:54):
signature economic policy. My guest is Timothy Bright Bell, partner
and coach of the International Trade practice at Wiley Rhein.
Tim tell us what's at stake in this case.
Speaker 8 (23:07):
This case involves the centerpiece of President Trump's economic agenda.
This argument is the biggest trade case the Supreme Court
has ever heard, and it goes straight to the key
constitutional issue of who has the power to impose tariffs,
the US Congress or the president. President Trump says the
(23:28):
law that he used, the International Emergency Economic Powers Act,
gives him the power to regulate imports, and that that
includes the power to impose tariffs, including fentanyl tariffs on China, Canada,
and Mexico, and reciprocal economic tariffs on almost all countries.
Whereas the plaintiffs in this case say that Congress has
(23:49):
that power and cannot delegate that power, and that AIPA,
which has never before been used to impose tariffs, does
not include that power and authority. So that is what
is at stake. And of course the tariffs under AEPA
have led to collection of hundreds of billions of dollars
of tariffs already, so it's very high economic stakes for
(24:12):
the companies and industries that have paid those tariffs as well.
Speaker 2 (24:16):
Let's talk about some of the analysis during the oral arguments,
and you know, there's always a textual analysis these days,
and some of the justice's concerns that the text of
the statute doesn't mention the word tariffs at all exactly.
Speaker 8 (24:35):
The argument focused quite heavily on this law used by
President Trump AEPA and whether that law, which gives the
president the power to regulate imports, also includes the power
to impose tariffs. That really dominated most of the hearing,
and the justices asked very difficult questions on both sides.
(24:56):
The administration said and the Solicitor General and the argument
said that the ability to impose tariffs is a core
application of the ability to regulate imports in a historical context,
said that, of course, the power to regulate imports would
be read to include tariffs because tariffs have been used
(25:17):
throughout our country's history. On the other hand, several justices
were skeptical of that, and the plaintiffs in this case
said that when the delegation includes tariff authority, there is
always specific language to that effect, and that there are
always conditions and tests and agency decisions that have to
(25:38):
go into that tariff power. So there was a good
amount of the argument focused on those issues, and again,
whether the power to regulate imports includes the power to
impose tariffs, And.
Speaker 2 (25:49):
What did you think of a Solicitor General arguing that
the Trading with the Enemy Act of nineteen seventeen gives
the president authority and also to a nineteen seventy six
tariff by President Richard Nixon that the Supreme Court upheld.
Speaker 8 (26:08):
Well, I think both sides had responses there. So the
Solicitor General argued, yes, that the Trading with the Enemy
Act was used to impose tariffs in a prior situation
by President Nixon, and that there's no reason to think
that anything had changed when AEPA had passed. On the
(26:28):
other hand, I think the plaintiffs had a response to
that in terms of the fact again that when tariffs
are involved, there are always conditions on their use, there
are always specific procedures, and also the fact that the
reality is that no other president in fifty years has
(26:48):
used AIPA to impose tariffs. So a lot of discussion
on that, I think, tough questions from many of the justices,
and that is one of the shoes that's joined and
will have to be decided.
Speaker 2 (27:02):
What role does the Major Questions doctrine play here? It's
was mentioned several times, and the Chief Justice seemed to
think it was important Justice score such at one point
said to Neil Katyal, I think you're going to need
the Major Questions doctrine.
Speaker 8 (27:21):
Yes. So the question here is does the Major Questions
Doctrine require a clear statement in AIPA that it includes
the power to impose tariffs? And this Court has not
hesitated to start using that doctrine more broadly, but I
think you're right that the justices had some concerns about
(27:44):
pursuing it in this venue. And again the question comes
to is the power to tariff implied in the power
to regulate imports or if it's not. Was this a
question that Congress was required to state clearly that tariffs
were a part of what was envisioned by the new law.
Speaker 2 (28:08):
Do you think that how the conservative justices used the
Major Questions doctrine to stop several of Biden's initiatives? Do
you think that that is something that they'll have to
explain if they allow Trump's tariffs to go through.
Speaker 8 (28:25):
I think it's an interesting question whether they'll go there,
or whether they will just focus on the language of
AIBA and this issue of whether the power to regulate
imports includes the power of tariff and I think several
justices went down that road. I don't think just because
these doctrines have been used in other cases, such as
the Biden student bound forgiveness case, doesn't necessarily mean that
(28:47):
they will have to address it in this opinion if
they have other bases for finding that the tariffs were
legal or improper in any way.
Speaker 2 (28:57):
What was your take on Justice Core, such as questioning
of the Solicitor General early in the arguments where he
expressed concerns about the extent of presidential power that Trump
is claiming and where it could lead.
Speaker 8 (29:16):
Yes, I thought that was very interesting. Justice cours such
as you mentioned, ask the hypothetical of if Congress can
delegate the tariff authority, what would prohibit Congress from delegating everything,
including the power to declare war, which is clearly given
in the Constitution to Congress and Justice. Corsich also called
(29:37):
the government's reading of its tariff power as a one
way ratchet and an accretion of power to the president,
and one that Congress could not recover. Without a supermajority
or a veto proof majority, and so that was a
very interesting discussion. I'm certainly raising some concerns about the limits,
(29:59):
if any, on the authority that the government was claiming.
Speaker 2 (30:03):
And where does the non delegation doctrine that Gorsuch was
talking about fit in.
Speaker 8 (30:09):
Well, again, Congress, under the non delegation doctrine, Congress cannot
transfer to another branch hours that are strictly and exclusively legislative.
But it may confer substantial discretion on executive agencies to
implement and enforce the laws. So that's the doctrine in general,
(30:30):
and the courts have interpreted that to say that a
delegation of this discretion is constitutional as long as Congress
lays down an intelligible principle to which the person or
the agency is directed to conform. And that intelligible principle
standard is a fairly low bar to clear. It's only
(30:53):
been found lacking in a couple of statutes. So I
don't think non delegation plays as much of a role
as the major questions doctrine, at least from how the argument,
the oral argument played out.
Speaker 2 (31:07):
You know, it just seemed to me as if the
Trump administration is having to bend over backwards and torture
the language to try to get to the result that
they want, whereas a plane reading wouldn't include tariffs.
Speaker 8 (31:22):
Well, I think that really is the key issue. Again,
the Solicitor General said, of course it would be understood,
and implied that the power to regulate imports includes the
power to impose tariffs, and in fact, adjusting imports is
another definition of regulating, and also the fact that since
(31:45):
the founding, historically tariffs have been a primary way to
regulate imports. So the Solicitor General was arguing it was
a natural reading of the law, But the justices were
skeptical and asked tough questions and noted that in every
other law where tariffs are involved, the power is made
very explicitly clear and it comes with conditions.
Speaker 2 (32:08):
Where do you think the justices are going to come
out here.
Speaker 8 (32:12):
Well, I'm not in the business of making predictions. Generally,
I think my own personal view is that the court's
three Democratic justices probably vote against these tariffs. And then
the question is whether some of the majority of the
court have similar concerns about the president's use of this law.
And I do think that it's still a very close decision.
(32:34):
It could go either way based on the questioning. My
own view, I thought Chief Justice Roberts and Justice Barrett
and Justice Gorsich were perhaps more skeptical of the president's
tariff authority under a than the other justices. But again,
that was just the oral argument. We don't really know
how it will come out. I guess the only other
(32:56):
point I would make is, although it was discussed the
oral argument, I have a hard time seeing this court
making a split decision that some of President Trump's tariffs
are acceptable but others are not. I mean, I suspect
the courts would prefer not to be in the business
of making those judgment calls going forward. So I could
be wrong, but I think the Court will either decide yes,
(33:19):
the power to regulate imports includes the power to tariff,
or no it does not, rather than some sort of
split decision on the fentanyl tariffs versus the reciprocal tariffs.
Speaker 2 (33:29):
So if the court rules against Trump, what happens next,
I mean, what happens to his tariffs?
Speaker 8 (33:35):
Well, two things would happen. First of all, there would
likely be some sort of a refund process for importers
that paid the tariffs during this time, and there is
some precedent for that before that was discussed during the
oral argument a situation where the court struck down a
harbor maintenance tax and there was basically a process where
companies could file claims for the amount of the tax
(33:58):
that they paid. So Barretts was concerned that this could
be a mess and could be very unwieldy, and so
there were some questions on that point. I guess the
more important point is what will the president do going forward?
And I think it's clear that tariffs are still a
cornerstone of this administration's economic policy, and if the Court
(34:18):
says that the President cannot use AIPA, the president will
likely pivot to one of several other trade tools that
are available, and the Court mentioned many of these, including
Section one twenty two, the section two thirty two, the
National Security Law, which the administration has already made quite
(34:39):
a bit of use of in this administration, Section three
zero one, and so forth. The limit on those laws
is that they do require studies or actions by other agencies.
So Section two thirty two requires a study and a
report by the Commerce Department and consultation with Defense Department.
In order to decide that imports of a certain product
(35:02):
like semiconductors or pharmaceuticals are a threat to national security. Similarly,
Section three ZHO one, which was the law used to
impose tariffs on China during the first Trump administration, also
requires a detailed study by the US Trade representative with
public inputs. So those tools, for the most part, cannot
(35:26):
be used as quickly as AEPA was used by President.
Speaker 2 (35:29):
Trump or anything that was striking to you in the
oral arguments.
Speaker 8 (35:34):
I thought it was interesting when Chief Justice Roberts said
that it seemed to him that using this law to
have the president's foreign affairs power trump the legislative power
to regulate trade seems to neutralize Congress's power. So I
thought that was notable. Justice Barrett asked whether there was
any other time in history with a phrase regulate imports
(35:57):
was read to include the imposition of tear riffs, and
she seemed not entirely convinced by the response from the
Solicitor General, and then Justice Kavanaugh asked, you know, the
historical perspective was the tariff power the kind of power
understood by Congress to exist when the AEPA law was passed,
(36:19):
and he also did ask why in prior economic emergencies
have other presidents not used IP but to invoke tariffs.
So again, very tough questions on all sides, and still
a very close case as to how this will ultimately
come out.
Speaker 2 (36:34):
Thanks so much for joining me, Jim. That's Timothy Brightbill
of Wilie Rhine, and that's it for this edition of
The Bloomberg Law Show. Remember you can always get the
latest legal news on our Bloomberg Law Podcast. You can
find them on Apple Podcasts, Spotify, and at www dot
Bloomberg dot com, slash podcast Slash Law, and remember to
(36:56):
tune into The Bloomberg Law Show every weeknight at ten
pm Wall Street Time. I'm June Grosso and you're listening
to Bloomberg
Speaker 1 (37:08):
M
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