The Coming Constitutional Collision Course

Tariffs, universities, and much more

1.

(Parenthetical note: It feels a little bit horrible, and maybe increasingly horrible, to refer to “conservative scholars and judges” and “progressive scholars and judges.” One reason is that doing that gets people’s backs up, or hearts racing: Some people think, “I’m one of those,” or, “I’m NOT one of those.” Another reason is that it tends to block thinking; the labels work like shutters. Yet another reason is that anyone who doesn’t agree, on some things, with Justice Thomas or Justice Alito - I am not sure how to complete this sentence - let’s just say that anyone should agree, on some things, with Justice Thomas or Justice Alito, just as as anyone should agree, on some things, with Justice Kagan or Justice Jackson. Having said that, I am going to have to use these terms here.)

Nonparenthetical note: My focus is on a serious, general legal problem for any White House, including the current one. The problem materialized in the recent tariff decision, broadly invalidating the President’s recent exercises of tariff authority. (See https://www.cit.uscourts.gov/sites/cit/files/25-66.pdf) But it is quite general. You’ll see. Still, it is going to take us a little while to get there.

2.

In recent years, conservative scholars and judges have tended to embrace a Grand Narrative about separation of powers and administrative law. (Here’s an account, alongside an evaluation: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4986085. Here’s a coming book, with an unusual cover: https://www.amazon.com/Separation-Powers-Cass-R-Sunstein/dp/026205177X/ref=tmm_hrd_swatch_0?_encoding=UTF8&qid=1748428845&sr=1-3-ef9bfdb7-b507-43a0-b887-27e2a8414df0)

According to the Grand Narrative (it’s almost a haiku, or three haikus):

1. The presidency is unitary, and independent agencies are unconstitutional, because they violate Article II, section 1.

2. Congress may not grant broad discretionary power to the executive, and it does that a lot, in violation of Article I, section 1.

3. Adjudicative power is exercised by courts, and that violates Article III, section 1.

Right or wrong, all this is potentially radical stuff. Let’s focus on the unitary executive and the nondelegation doctrine, which would have major consequences for the operation of American government. Independent agencies are in evident constitutional trouble, and so (1) is more likely than not to be the law in the near future (with an exception, apparently, for the Federal Reserve Board).

Of (1), (2), and (3), the most revolutionary would be (2) - which may be one reason that the Court has not accepted it. But the Court is clearly interested in it, which accounts for two things.

(a) The Court has narrowly construed grants of discretion to the executive, so as to avoid a potential nondelegation problem. (Bad news for any president.)

(b) The Court has developed the “major questions doctrine,” which requires unambiguous congressional authorization for “transformative” and “unheralded” exercises of power, or for exercises of power that have very large economic and political consequences. (Also bad news for any president, as President Biden repeatedly found out.)

Ok then.

3.

The current White House is enthusiastic about (1), the idea of the unitary executive, and it has taken unprecedented steps to assert presidential control over the independent agencies. Because of the popularity of the Grand Narrative, it has a good chance of ultimately prevailing in the Supreme Court. (It has penultimately prevailed, I think, kind of, already.)

The White House has not shown enthusiasm for (2), and in fact, (2) is a serious problem for it. Those who like (2) might question some authorities that the White House is using or might use, include authorities that involve tariffs.

Judges who like (2) might want to strike down those authorities. If they do not do that, they will be drawn more modestly to (a) (are you still with me? recall: constitutional avoidance through narrowly construing presidential authority) and (b) (the major questions doctrine), which means that the executive might well lose in court.

And indeed, that is exactly what happened in the tariffs case. There are a lot of details there, involving the text and history of the relevant statutes, and those details are of course crucial. But (2), and (a) and (b), played a fundamental role.

Want proof?

Consider how the court starts:

The Constitution assigns Congress the exclusive powers to “lay and collect Taxes, Duties, Imposts and Excises,” and to “regulate Commerce with foreign Nations.” U.S. Const. art. I, § 8, cls. 1, 3. The question in the two cases before the court is whether the International Emergency Economic Powers Act of 1977 (“IEEPA”) delegates these powers to the President in the form of authority to impose unlimited tariffs on goods from nearly every country Court Nos. 25-00066 & 25-00077 Page 4 in the world. The court does not read IEEPA to confer such unbounded authority and sets aside the challenged tariffs imposed thereunder.

Or consider this:

[T]his court reads “regulate . . . importation” to provide more limited authority so as to avoid constitutional infirmities and maintain the “separate and distinct exercise of the different powers of government” that is “essential to the preservation of liberty.” The Federalist No. 51 (Alexander Hamilton or James Madison).

Or this:

Plaintiffs are correct in the narrow sense that the imprecise term “regulate . . . importation,” under any construction that would comport with the separation-of-powers underpinnings of the nondelegation and major questions doctrines, does not authorize anything as unbounded as the Worldwide and Retaliatory Tariffs.

Or (above all) this:

The separation of powers is always relevant to delegations of power between the branches. Both the nondelegation and the major questions doctrines, even if not directly applied to strike down a statute as unconstitutional, provide useful tools for the court to interpret statutes so as to avoid constitutional problems. These tools indicate that an unlimited delegation of tariff authority would constitute an improper abdication of legislative power to another branch of government. Regardless of whether the court views the President’s actions through the nondelegation doctrine, through the major questions doctrine, or simply with separation of powers in mind, any interpretation of IEEPA that delegates unlimited tariff authority is unconstitutional.

4

The idea of a unitary executive means that the president gets to remove all high-level officials who exercise executive power. (I am bracketing some complexities.) It does not mean that the president gets to violate the law as enacted by Congress. (As I recall, a movie about Vice President Cheney mangled this, which made me almost jump out of my chair, which would not have been dignified, or an exercise in coolness.)

Nor does the idea of a unitary executive help any president in the face of judicial use of (a) and (b).

Back to basics:

Enthusiastically embracing the Grand Narrative, conservative scholars and judges have liked (1), (2), and (3). The White House really likes (1), and on that count, it might well succeed in its view of what the Constitution requires. At the same time, the White House is making bold use of various statutes, in a way that can easily be characterized as “transformative,” and in a way that has self-evident economic and political significance.

As the law now stands, and as a majority of the Supreme Court understands the separation of powers, that is going to be a serious challenge for the current administration in court, and in domains that extend well beyond tariffs.