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Oral arguments on the Trumpy tariffs


 I am happy to report that on Wednesday November 5 the Justices of the US Supreme Court gave the lawyers from the US Justice Department a hard time during oral arguments on the legitimacy of President Donald Trump's monarchical tariff system last week.

The question is whether Trump's extraordinary sweeping impositions, and modification, of tariffs on a country by country basis can be said to be warranted by the 1977 International Emergency Economic Powers Act.  

The only honest answer is "no". Fortunately, most of the Justice seem inclined to give that honest answer, upholding the courts below. Chief Justice John Roberts (an appointee of President George W. Bush) said flatly that this law "has never been used to justify tariffs. No one has argued that it does until this particular case."

Justice Neil Gorsuch, a Trump appointee, appears to want to be part of a decision that emphasizes that Congress has no power to delegate away its own proper constitutional role, even if the statutory language specifically indicates it wants to.  (Here, the language does not indicate any such want, but the non-delegation doctrine may be decisive nonetheless.) 

Gorsuch said that one problem with reading IEEPA as the Solicitor General wants is that it would create a  “one-way ratchet toward the gradual but continual accretion of power in the executive branch” because, once the president had such powers, he could veto any effort by Congress to take them back. 

Justice Clarence Thomas, who by the priority of his seniority, kicked off the questioning, did so by suggesting that the "major questions" doctrine applies.  This is the rule that the executive branch needs extremely clear authorization from Congress before it can decide major issues of policy. For example in Utility Air Regulatory Group v. EPA (2014), the Court narrowed the EPA’s ability to regulate greenhouse gases under the Clean Air Act because it found the legislative language inadequately specific.

Thomas (photo above) of course is an appointee of President George H.W. Bush.



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