A Brisk Note on the Tariffs Case

Simpler than Meets the Eye

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The Supreme' Court’s decision in the tariffs case is a lot simpler than it looks.

True: It consists of (gulp) 170 pages, and Justice Gorsuch wrote a long concurrence, and Justices Barrett and Gorsuch are in seemingly intense disagreement with each other, and Justice Kagan had a lot to say, and so did Justice Thomas, and Justice Jackson wrote separately to emphasize the legislative history, and that doesn’t even include the principal opinion (by the Chief Justice) and the principal dissent (by Justice Kavanaugh).

What a mess. But it’s not a mess.

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Here’s the view that prevailed (in the sense that six justices agreed with it: the Chief Justice and Justices Gorsuch, Barrett, Kagan, Sotomayor, and Jackson):

The governing statute, IEEPA, does not authorize the President to impose tariffs.

Period.

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Okay, we need to say a little more.

Let’s quote the Chief Justice, who wrote what was, in part, the majority opinion, and let’s add some paragraph breaks for readability:

When acting under IEEPA, the President must [1] identify an “unusual and extraordinary threat” to American national security, foreign policy, or the economy, originating primarily “outside the United States.” 50 U. S. C. §1701(a).

And he must [2] “declare[] a national emergency” under the National Emergencies Act.

He may then, “by means of instructions, licenses, or otherwise,” [3] take the following actions to “deal with” the threat: “investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest.”

So: Does the word “regulate,” which I have put in bold, include the authority to impose tariffs?

The Court said No. Here’s why:

Based on two words separated by 16 others in Section 1702(a)(1)(B) of IEEPA—“regulate” and “importation”—the President asserts the independent power to impose tariffs on imports from any country, of any product, at any rate, for any amount of time. Those words cannot bear such weight.

In short, the power to regulate does not include the power to impose tariffs (and in that way to tax), In the Court’s words:

{T]he facial breadth of “regulate” places in stark relief what the term is not usually thought to include: taxation. The U. S. Code is replete with statutes granting the Executive the authority to “regulate” someone or something. Yet the Government cannot identify any statute in which the power to regulate includes the power to tax.

There’s a lot more, but that’s the core of it.

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So why all those pages? Here’s why, or at least one reason why.

The Chief Justice and Justices Barrett and Gorsuch also invoked the major questions doctrine, which holds that if the executive seeks to claim very major or transformative authority, it needs clear congressional authorization - which (in their view) it lacks here.

Justice Kavanaugh, writing for himself and Justices Alito and Thomas, answered that Congress did in fact give the President clear authorization - and that the major questions doctrine has no application to the domain of foreign affairs.

Justice Kagan, writing for herself and Justices Sotomayor and Jackson, said that to resolve the case, it is not necessary to invoke the major questions doctrine, which she does not love. (The other three justices in the majority did not seem to disagree.)

Justice Gorsuch defended the major questions doctrine with some passion and in great detail, as a substantive canon designed to promote separation of powers goals. (Personal note: Like Justice Kagan, I have not loved the major questions doctrine, but his opinion is really well done, and I am liking the doctrine more than I once did.)

Justice Barrett, more briefly, disagreed with Justice Gorsuch and set out her different understanding, which is that the major questions doctrine is designed more modestly to inform a judgment about the meaning of congressional enactments.

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A full account would, of course, require more detail. But let’s not lose the forest for the trees. The prevailing analysis is pretty simple: The power to “regulate” just does not include the power to impose tariffs.