Beginning on February 1, 2025, Donald Trump issued a series of executive orders that invoked the International Emergency Economic Powers Act of 1977 (IEEPA) as statutory authority for his imposition of massive tariffs on imports from countries around the world. I responded to this by arguing that this was both illegal and unconstitutional.
It was illegal because IEEPA does not clearly give the President any power to levy tariffs. In fact, the IEEPA says nothing about tariffs. And in the almost 50 years since it was passed, no president has claimed that it gives him any power over tariffs--until Trump. It was unconstitutional because the Constitution gives to Congress, but not the President, the power to tax, and tariffs are taxes. This is a crucial part of the constitutional system of separation of powers that prevents the concentration of power in the president. Consequently, the Congress cannot constitutionally give up its taxing power to the president.
Any congressional delegation of the taxing power, including the power over tariffs, to the executive branch must be constrained by specified limits and procedures, which one can see in the congressional statues giving the president some powers for setting tariffs. In his first term, Trump worked within these statutes to raise tariff rates on various nations. But he discovered that the requirements of these laws severely constrained his power. So at the beginning of his second term, he decided that he would use the IEEPA to give himself unlimited power to impose tariffs at will, even though the IEEPA says nothing about tariffs.
Those federal judges who claim to be "originalists" or "textualists" in adhering strictly to the original meaning of constitutional or statutory texts will have to rule that Trump's tariffs are unconstitutional. If they don't, they will show the dishonesty of their profession of originalist jurisprudence because they will show that they are willing to ignore the original meaning of the legal texts if it contradicts their partisan political commitment to Trump.
THE DECISION: ONE COALITION AND TWO SPLITS
On Friday, the Supreme Court issued its 6 to 3 decision in Learning Resources, Inc., et al. v. Trump declaring that IEEPA does not give Trump any power to impose tariffs. As you might expect from what I have argued previously about this debate, I am persuaded by the reasoning of the majority. If you read the decision (all 170 pages of it!), you can decide for yourself whether the six justices in the majority and I are right. I won't add much here about the substantive issues beyond what I have already said.
Here I am interested in the lineup of judges on the two sides, which is remarkable in three ways. First, those on the side of the majority constitute a coalition of three Republican appointees (John Roberts, Neil Gorsuch, and Amy Coney Barrett) and three Democratic appointees (Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson). Second, there's an even split among the six Republican appointees because three are on the majority side and three (Clarence Thomas, Brett Kavanaugh, and Samuel Alito) are on the dissenting side. Third, there is a split within the Trump appointees: two voting with the majority (Gorsuch and Barrett), and one going with the dissenters (Kavanaugh). Trump lost this case because he lost the votes of Gorsuch and Barrett. If they had taken his side, it would have been a 5 to 4 decision in Trump's favor.
So what's going on here? In Gorsuch's opinion, I see the best explanation for both the coalition and the two splits, although Gorsuch only implies what I will make explicit here.
The ultimate issue here is the question of how to properly allocate the powers of the national government between the Congress, the Executive Branch (the President and the federal administrative officers), and the Federal Judiciary so as to secure the separation of powers with checks and balances. The first and longest article of the Constitution is the Legislative Article I, with the longest list of enumerated powers, which suggests that even with the separation of powers between the three branches, Congress should be supreme.
But over time the presidency has become ever more powerful, particularly in matters of war and foreign affairs. And since the end of the nineteenth century, the Congress has delegated some of its lawmaking powers to the president and to administrative agencies. This has grown into what has been called (mostly by its critics) the Administrative State--administrative agencies seem to exercise concentrated legislative, executive, and judicial powers, with few checks on their power, creating an administrative tyranny that threatens individual liberty.
In 1946, the Congress attempted to limit this administrative power through the Administrative Procedure Act (APA), which in effect created a separation of powers within the federal administrative agencies. The APA required agencies to keep the public informed of their procedures and rules, to allow the public to participate in the rulemaking process through public commenting, and to establish formal procedures for rulemaking and adjudication that would allow the public to file lawsuits challenging unfair rulemaking.
Conservatives, libertarians, and classical liberals have argued that this does not go far enough in limiting administrative power. They have proposed new limits that are either vertical or horizontal. Some conservative Republican lawyers have proposed the Unitary Executive Theory as the best way to put a vertical limit on the Administrative State: if Article II of the Constitution gives the President absolute power over all the federal administrative officers in the Executive Branch, then a popularly elected president can enforce the will of the people upon the Administrative State.
The problem with this, however, as I have argued, is that the lesson this teaches someone like Trump is "Article II gives me the power as president to do whatever I want to do." Far from limiting the Administrative State, this creates a Presidential Administrative State in the service of Trump's dictatorship.
Consequently, some conservatives, libertarians, and classical liberals have said that what we need is for Congress to exercise its constitutional powers in ways that will horizontally limit the powers of both the President and federal administrators. Over the past one hundred years, the Congress has delegated too much of its constitutional power--either directly or by acquiescence--to the President and federal administrative officers.
There are two ways to reverse this. The radical way is to insist on a strict non-delegation principle--that Congress may not delegate its constitutional powers to the President or administrators. But that would require a revolutionary overthrow of the Presidential Administrative State that few people would be willing to accept.
The moderate way to reverse the flow of lawmaking power out of Congress would be for the federal courts to enforce what has been called the "major questions doctrine." That's the principle that Gorsuch defends in his opinion in Learning Resources v. Trump. Gorsuch defines this principle as the rule "that, when executive branch officials claim Congress has granted them an extraordinary power, they must identify clear statutory authority for it" (Gorsuch, 6). Notice that "executive branch officials" includes both the President and federal administrators. Notice also that "extraordinary power" surely includes the power claimed by Trump "to impose a tariff of any amount, for any time, on only his own say-so" (Kagan, 6). This is called the "major questions" doctrine because it applies only to cases that involve major economic or political consequences. This is more moderate than an absolute non-delegation doctrine because it allows the Congress to delegate its powers to executive branch officials but only when the delegation is stated in clear statutory language. That's a high standard because most of the growth in the Presidential Administrative State has come from executive branch officials appealing to vague or ambiguous language in congressional statues as delegations of congressional power to the Executive Branch.
The shrewd decision to employ the major questions doctrine in the legal strategy that won the Learning Resources case came from Ilya Somin in a blog post that he published the day after Trump announced his first tariffs on February 1 of last year. Ilya suggested that since the major questions doctrine was "more moderate" that a strict non-delegation doctrine, it would appeal to "some of the conservative judges" and "one or more liberal judges." Later, Somin advised the Liberty Justice Center, a right-leaning legal organization that brought the Learning Resources case to the Supreme Court. Somin's strategy was even more successful than he anticipated because he persuaded all three of the liberal judges and three of the six conservative judges.
So why weren't those three dissenting conservatives (Kavanaugh, Thomas, and Alito) persuaded? These three judges claim to be textualists and originalists who base their decisions not on their political preferences but on the original meaning of the constitutional and statutory texts. In this case, they argued that Trump's absolute power to impose tariffs was authorized by the language of the IEEPA, which stated that once a president has declared an international economic emergency, he has the power to
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 by any person, or with respect to any property, subject to the jurisdiction of the United States. 50 U.S.C sec. 1702 (a) (1).
Notice that this does not mention tariffs, nor any synonyms such as duties and imposts. So where did these judges find the power to impose tariffs in this passage? Well, they take two words out of this passage--"regulate" and "importation"--and they create the phrase "regulate . . . importation," which they claim clearly means impose tariffs. In Kavanaugh's opinion, by my count, he uses the phrase "regulate . . . importation" 74 times! But he never considers how these two words fit into the context of this long sentence.
In her concurring opinion, Kagan points out that "regulate" is one of 9 verbs in this delegation provision. The others are "investigate," "block," "direct," "compel," "nullify," "void," "prevent," and "prohibit." Those verbs are followed by 11 objects, each describing a distinct sort of transaction involving foreign property--not just "importation," but also "acquisition," "holding," "transfer," and so on. Combining these verbs and objects in all possible ways, the statute authorizes 99 actions a President can take. When "regulate . . . importation" is compared with the 98 other actions, they all look like various ways to constrain or alter various foreign transactions. But none of these 99 actions clearly require that the President exercise the congression power to tax by imposing tariffs.
Now Kavanaugh argues that the word "regulate" broadly defined could include "imposing tariffs." But that is not clearly indicated in the IEEPA. And the Constitution distinguishes the Congress's "Power to lay and collect Taxes, Duties, Imposts, and Excises" (in the first clause of Article I, section 8) from the power "To regulate Commerce with foreign Nations" (in the third clause of section 8). So the Constitution does not use the word "regulate" as including taxing and imposing tariffs.
If we apply the major questions doctrine to this case, then we would have to say that the IEEPA does not delegate the congressional power over tariffs to the President because this statute does not state that in clear unambiguous language.
Gorsuch points out that the three dissenting judges in this case are taking a position that contradicts the position they took a few years ago in ruling against the unconstitutional and illegal powers claimed by Biden's Administrative State. During Biden's term of office, these three conservative judges joined in some major questions decisions that struck down claims to extraordinary powers made by the Biden Administration.
For example, in National Federation of Independent Business v. OSHA (2022), the Biden Administration argued that the statute charging the Occupational Safety and Health Administration with promoting "safe and healthful working conditions" authorized that agency to impose a vaccine mandate on 84 million Americans. The six conservative judges constituted the majority ruling against the Biden Administration because the statutory language was too vague to clearly delegate to the Executive Branch such an extraordinary power.
Similarly, in Alabama Assn. of Realtors v. Department of Health and Human Servs. (2021), the Biden Administration argued that the statute permitting the Centers for Disease Control and Prevention to issue regulations "necessary to prevent the . . . transmission . . . of communicable diseases" granted to that agency the power to declare a moratorium on landlords evicting tenants. Once again, the six conservative judges ruled that this language was not clear enough to justify giving such a power to the Executive branch.
In many other similar cases during Biden's term, the outcome was the same. The Biden Administration would invoke vague statutory language as justifying broad powers for the Biden Administrative State, and the six conservative judges would rule against them on the grounds that the statutory language was not clear enough.
But now in Learning Resources, three of those six conservative judges wanted the Court to rule in support of Trump doing exactly what Biden had done--using vague statutory language to justify expanding the powers of the Presidential Administrative State. So they are in contradiction with themselves.
Strikingly, the three liberal judges are also in contradiction with themselves but moving in the opposite direction. They voted in favor of the Biden Administration using vague language to justify broad executive power, but now they are voting against the Trump Administration for doing the same thing.
What's going on here? Gorsuch suggests--although he says it quietly--that the three liberal judges who voted with the majority in Learning Resources and the three conservative judges who dissented in Learning Resources are voting for their partisan preferences--the liberal Democrats voting in support of a Democrat President, and the conservative Republicans voting in support of a Republican President. By contrast, the three conservative judges who voted with the majority against Trump in Learning Resources are free from political bias in consistently adhering to their principles of originalist jurisprudence--originalist principles that require them to overrule the unconstitutional and illegal actions of a Presidential Administrative State, regardless of whether the President is a Democrat or a Republican.
LIBERAL AND ILLIBERAL AMERICA IN THE MAGA MOVEMENT
So what happens now after the Learning Resources decision? There are at least two ways that Trump could counter the Court's decision. He could refuse to obey the decision. He could say: "I can do anything I want, and it doesn't matter what the Supreme Court says. So I will continue to exercise my absolute power to impose tariffs whenever and however I want."
Or he could order the Congress to overturn the Court's decision by passing a law that entirely gives up the congressional power of taxing and imposing tariffs to the President. He has taken neither of these courses of action. Instead, he has said that he will use laws other than the IEEPA that might give him some power over tariffs.
Notice what this means. Trump accepts the principle of separation of powers through which Congress and the courts can check his powers as President. This is very far from his boast: "As president, I can do anything I want."
Apparently, he doesn't believe that a Republican-controlled Congress would obey his order to legalize his dictatorial powers. And he doesn't believe that his MAGA supporters would allow him to rule as a dictator.
This confirms what I have argued previously--that in Trump's leadership of the MAGA movement we see the tension between an illiberal America and a liberal America, but ultimately liberal America will prevail. So in this case, we see that the Lockean liberal principle of separation of powers prevails over the propensity to accept the dictatorship of unbridled power.
I speak of separation of powers as Lockean because Locke insists that governmental administrators exercise only "subordinate powers" and must therefore be "accountable to some other power in the commonwealth" (ST, 152). Because governmental actions must be guided by law, and because the legislative body cannot delegate its lawmaking power to anyone else, administrators should serve simply as instruments for carrying out the laws enacted by the legislative body. Locke writes: "the Legislative cannot transfer the Power of Making Laws to any other hands. For it being but a delegated Power from the People, they, who have it, cannot pass it over to others" (ST, 141).
Locke's principle of separation of powers is based on an anthropological principle--that human beings with political ambition naturally strive for tyrannical dominance over others, and therefore the only check on such striving for dominance is a system of countervailing powers, where ambition checks ambition.
Gorsuch points to this Lockean anthropological principle in his opinion in Learning Resources:
. . . highly resourceful members of the executive branch have strong incentives to exploit any doubt in Congress's past work to assume new power for themselves. The major questions doctrine helps prevent that kind of exploitation. Our founders understood that men are not angels, and we disregard that insight ate our peril when we allow the few (or the one) to aggrandize their power based on loose or uncertain authority. We delude ourselves, too, if we think that power will accumulate safely and only in the hands of dispassionate "people . . . found in agencies." . . . Even if unelected agency officials were uniquely immune to the desire for more power (an unserious assumption), they report to elected Presidents who can claim no such modesty (Gorsuch, 16).
No comments:
Post a Comment