Learning Resources v. Trump

Mr. Chief Justice, and may it please the Court: On April 2, President Trump determined that our exploding trade deficits had brought us to the brink of an economic and national security catastrophe. He further pronounced that the traffic of fentanyl and other opioids into our country has created a public health crisis, taking hundreds of thousands of American lives. President Trump has declared that these emergencies are country-killing and not sustainable, that they threaten the bedrock of our national and economic security, and that fixing them will make America strong, financially viable, and a respected country again. Due to IEEPA tariffs, President Trump has negotiated agreements worth trillions of dollars with major trading partners, including most recently China. Unwinding those agreements, he warns, would expose us to ruthless trade retaliation by far more aggressive countries and drive America from strength to failure, with ruinous economic and national security consequences. In Dames & Moore against Regan, this Court held that IEEPA's sweeping and unqualified language grants the President's actions the strongest presumption of validity and the widest latitude of judicial interpretation. Yet plaintiffs argue that tariffs, IEEPA's least blunt and most nimble tool, are virtually the only tool that Congress did not grant the President to deal with foreign emergencies. That is wrong. The phrase "regulate importation" plainly embraces tariffs, which are among the most traditional and direct methods of regulating importation. And plaintiffs concede that IEEPA authorizes quotas and other tariff equivalents. The major questions doctrine does not apply here. IEEPA confers major powers to address major problems on the President, who is perhaps the most major actor in the realm of foreign affairs. And the nondelegation doctrine casts no doubt on IEEPA because Congress may assign the President broad authority regarding the conduct of foreign affairs, where he enjoys his own inherent Article II powers. I welcome the Court's questions.

Yes, Justice Thomas. And I may make two or three points on that front. First of all, though the major questions doctrine may apply to the President in other contexts, specifically in the foreign affairs context, where he has his own inherent Article II authority, it's a particularly poor fit to apply the major questions doctrine, and that's for at least two reasons. First of all, just as a matter of kind of common-sense interpretation, one would expect Congress to confer major powers on the President to address major, you know, sort of foreign -- international crises, so to speak, in foreign-arising emergencies, that that's just sort of a natural, common-sense thing you expect Congress to do. And, in fact, you know, Justice Jackson in his Youngstown opinion addressed this very situation at pages 652 and 653 when he says this is the system within our -- or this is the procedure within our constitutional system that we have developed to strike the balance, you know, what Dames & Moore described as the never-ending tension between the need for the executive to address -- have robust powers to address emergencies and to subject it to checks and balances. What our constitutional system has devised to address that particular problem, that never-ending tension, is the system where Congress confers broad and necessary powers in advance and subjects them to ongoing political oversight, which is exactly what you see in IEEPA. So that's one reason, one reason just as a matter of common-sense interpretation you would expect Congress to grant major powers to the President, who has his own broad range of major authority, Article -- inherent Article II authority in this context. And that is by just my second point, which is --

I would refer to what the Court said, for example, in Egan, Department of Navy against Egan. That's a generally accepted view that the President has broad authority in the foreign affairs realm. Now there's been debates about exactly how far it goes and how to draw the boundary between the President and Congress, but Egan, Garamendi, other cases, Curtiss-Wright, the Court has recognized the President has broad inherent authority to address foreign situations, foreign affairs, foreign policy, including foreign-arising emergencies. Now we don't contend that he has -- he has at least in peacetime inherent tariffing authority. What we have here is two layers. There's the layer, the bedrock, of the President's, you know, inherent Article II powers, and layered on top of that is a sweeping delegation of -- of authority from Congress. When you put those two things together, Congress has said you have inherent powers to address international emergencies, and we're conferring you -- on you the tools, including Article I tools, like, for example, the power to regulate foreign commerce. And I want to make a very important distinction here. We don't contend that what's being exercised here is the power to tax. It's the power to regulate foreign commerce. These are regulatory tariffs. They are not revenue-raising tariffs. The fact that they raise revenue is only incidental. The tariffs would be most effective, so to speak, if no -- no -- no person ever paid them. They -- they achieve their goals if they -- and so forth.

Maybe I can put it this way. We don't dispute that Dames & Moore is, as you state, a narrow opinion. However, it -- it -- it addressed certain principles that we think are equally applicable here, for example, the interpretive principle. Dames & Moore held -- and, again, it was -- it was the power to nullify and void, not the power to regulate, but it's in the very same sentence in the very same statute, and the Court quoted the First Circuit opinion and said, look, this is sweeping and unqualified language, which it didn't disagree with. And then it said this particular provision, where Congress has given these broad verbs, I mean, "regulate" is a capacious verb, admittedly, so are "nullify," so are "void," so are, frankly, all the other verbs there in the -- the language in IEEPA. The way the Court thought about it is we're looking at this through the lens of Justice Jackson's opinion in Youngstown. And the Court held specifically that these verbs placed the President in Youngstown Zone 1. The Court held that -- that he's subject -- subject to the widest latitude of judicial interpretation, that he received --

-- the strongest presumption of validity.

As to that point, I believe the Court has never applied the major questions doctrine in the foreign policy context.

But that's the emergency context, not the foreign policy context.

It is a -- it is a -- if I may, it's a foreign-facing regulation of foreign commerce. That's a regulatory tariff --

-- distinct from a tax.

I don't think he could have gotten student loan forgiveness.

But perhaps he could have -- he could have said --

Let me put it this way if I may.

If I may, maybe I can articulate it this way. The power to impose tariffs is a core application of the power to regulate foreign commerce, which is what the phrase "regulate importation" in IEEPA naturally evokes --

-- not the power to tax. What's --

This Court --

Respectfully, this Court came to the opposite conclusion, if I may, in Algonquin, where the phrase was not impose duties from the --

But the governing language -- admittedly, the reference is to duties in Section 232(a). 232(c) does not refer to them. And the Court didn't refer to 232(a) at all or the phrases "duties" or "tariffs" in its analysis. What it held was the phrase "adjust imports," which includes a verb that's narrower --

-- the word "regulate" here naturally encompasses --

I disagree with that. I think you read the opinion, first, it talks about plain meaning, then it talks about statutory context, and then it goes on to legislative history. So it was all three of those. And the conclusion it came to, it -- it directly addressed and rejected the argument that the D.C. Circuit had accepted in that case, which is that when Congress wants to delegate the authority to tariff, it uses a consistently explicit and well-defined approach, which is to use these magic words, tariff, tax, impose, and so forth.

And the Court said, no, we -- Congress is not bound to use that particular formulation when it wants to confer this power.

I disagree with that because what Congress actually did as --

Well, I disagree with the notion that they were trying to constrain the breadth of the actions the President may take when it comes to this particularly narrow domain, which is, you know, various regulations of transactions over how many of which foreigners have interest.

Because --

Because they made a series of changes to IEEPA --

-- that relate to the -- the triggering conditions, so to speak, and the procedures that apply, but they did not change the language in I -- in TWEA --

-- at all. So --

To constrain it in the triggering conditions and the procedures that apply in this --

-- context, but -- but --

Congress took the language from TWEA and enacted the very same language and, most importantly here, the very same phrase, "regulate importation," in IEEPA, and, therefore, the natural inference is Congress did not intend to change the scope of authority, the powers, the tools the President can exercise to --

-- address foreign emergencies.

Well, yes, President Nixon's 1971 tariffs --

-- were visibly --

I'm referring to President Nixon's 1971 tariffs --

That was -- not only that, but then it was upheld by the court of appeals with exclusive jurisdiction under this very phrase, "regulate" --

-- "importation."

Sorry.

I don't think that's --

I wouldn't put it that way because he has a broad invocation, you know, I'm invoking a whole range of statutes, something like that, in Proclamation 4074, and I think the understanding is he didn't want to kind of spook our allies by invoking the Trading With the Enemies Act by specifically invoking it. But, in litigation, it was defended on that ground. So the Department of Justice defended it as an exercise of TWEA and did so successfully.

Well, there's one obvious very powerful takeaway from it, which is that this very two-word phrase, "regulate importation," that we say it carries with it the authority to tariff, impose regulatory tariffs at the border, forward-facing tariffs at the border -- border, and we say that's a core application of -- of the phrase "regulate importation," had been interpreted two years before Congress re-enacted that language in IEEPA, had been interpreted to carry with it the authority to -- authority to impose tariffs. So this Court said in Algonquin, for example, with respect to President Nixon's --

Ten per -- he imposed a percent tariff kind of across the board to all our major trading partners to address a balance-of-payments deficit, where he was trying to bring all the major industrial nations to the -- to the -- to the negotiating table, which he successfully did, for the imposition of the tariffs, and they negotiated the Smithsonian agreement in about five months, after which he lifted the tariff. So the tariff there was used as here, in part as leverage to get our trading partners to the negotiating table, and it was subsequently upheld by the Federal Circuit, the CCPA, the Federal Circuit's predecessor that had exclusive jurisdiction over that question, to include the power to tariff. And then, two years later, Congress took that same phrase and re-enacted it in IEEPA after carefully studying the problem of presidential emergency powers and being deeply concerned about, you know, excessive or abusive exercise of that power. So that whole -- that whole sort of process gives sort of strong sort of confirmation that this phrase "regulate importation" carries with it the power to tariff. Now, of course, that's not our leading argument. Our lead argument on interpretation is there's a -- a -- a pedigree, historical pedigree, of regulating imports specifically where the power to tariff is just the -- sort of a core application of that, a quintessential exercise of that power. And that goes back to Gibbons against Ogden and Justice Story's treatise and runs all the way through cases like McGoldrick and Board of Trustees and Gulf Oil.

Well, as to "regulate importation"? That was held in TWEA. So, obviously -- and that's --

Well -- yes. Yeah.

I mean, obviously, the other statutory example is just imports. The cases we rely on are cases where, for example, in Gibbons against Ogden and Justice Story's treatise there --

I think -- I think our argument goes a bit further than that as an interpretive matter because, if you look at that history, the history of delegating --

Yeah, the only two statutes I can identify now are TWEA as interpreted in Yoshida and then closely related, not "regulate importation" but "adjust imports," in Section 232 in --

And, of course, I mean, those are -- there's a sort of direct line there --

Yes. And then -- but then, more fundamentally, we rely on historical sources to show there's this long historical pedigree of raw delegations of the foreign commerce power, not the power to tax that we're not asserting here. Delegations of the foreign commerce power to the President going back to Gibbons against Ogden, all the way through McGoldrick and Board of Trustees, where this Court and -- and founding-era sources say the power to -- in other words, the power to tariff is kind of this natural -- you know, as everyone knows, that includes --

-- the power to regulate commerce.

Let me put it this way: You look at all nine verbs together and you're looking at a spectrum of powers from the most sort of negative, "nullify," "block," "prohibit," "void," to the most affirmative, "direct," "compel," and then also powers in between that are more intermediate, "regulate," "investigate," and so forth. So the natural common-sense inference from that grammatical structure is the intention of Congress to sort of cover the waterfront, to grant the power all --

Well, I would say the -- the notion that all these other verbs are -- are sort of not revenue-raising, like "block" and "prohibit," I think that that argument is unconvincing for two reasons. One, of course, is that we don't -- we're not saying it confers a revenue-raising power. We're saying it confers a regulatory power. And that's a crucial distinction. But also --

We don't assert that. We say it includes tariffing power when it's combined with "importation." And that's just the most natural way to --

Start with sort of the grammatical structure of the statute, then refer to the other statutes. "Regulate importation," you put those two words in combination, that's -- the inference from that is, you know, the founders discussed with this sort of, like, you know, "as everyone knows" attitude, "regulate importation" then, one of the most natural applications of that is the power to tariff. So, when Congress confers the power to regulate imports, it is naturally conferring the power to tariff, which it has delegated to the executive branch, you know, again and again and again going back to the country's origins.

Right. Understand. Yeah, we agree to that, yes.

Because that is how --

Because, as this Court has recognized going back to Gibbons against Ogden and going through McGoldrick and Board of Trustees --

-- the phrase --

When you're regulating imports, tariffing is a core application of that. So, in other words, if you're saying go regulate trading in securities --

-- that wouldn't come with a tariffing connotation.

I'm not sure what other statutes use "regulate" and "tax" together, but this statute has a specific historical pedigree going back to its enactment during World War I in 1917 where the phrase "regulate importation" is evoking an inherent power to tariff that became established in the 19th century with -- in cases like, you know, Hamilton against Dillin and so forth. And that history is, I think, set forth in Professor Bamzai's amicus brief.

Well, we agree that it's a major power, but it's in the context of a statute that is explicitly conferring major powers, that the point of the statute is to confer major powers to address major questions, which are emergencies. So it would be unusual to say -- look at the statute and say we're not going to find a major power here.

But it uses the word "regulate importation." And, historically, a core central application of that, a big piece of that, has always been to tariff. If you had asked the founders how do you regulate imports, they would say, of course, we tariff. That's what we do. So it would be very unusual to say we're giving you the power to regulate importation to -- and say but you cannot impose regulatory tariffs. That would be almost a -- a contradiction. And all the historical sources we cite in our brief, you know, relate to that particular historical pedigree. And, as I was referring to earlier, there's a specific pedigree of "regulate importation" here in the specific context of the Presidents Polk and Lincoln and President McKinley asserting the authority to impose tariffs in wartime that was then codified in TWEA and then recodified for peacetime in TWEA in 1933 and then carried over into IEEPA. So there's that as well. But, more importantly, if you look at the sort of triggering conditions that members of this Court have identified for the major questions doctrine, there's a series of them and we think they really do -- all of them don't apply here. For example, the notion that the power is unheralded. You refer to the fact that IEEPA's never been asserted to invoke tariffs. But, of course, the immediately predecessor statute that -- that -- the tariffs that President Nixon imposed on that were upheld under this very language. So this -- I would say this is -- and it was recodified in IEEPA two years later. So this is kind of the opposite of unheralded power. It's also heralded because there's this longstanding delegation -- tradition of very broad delegations of the foreign commerce power going back to the founding, going back to 1790 --

Let me say two things in response to that. First, the notion that these are -- the taxes are all borne by Americans, they're not borne by foreign -- foreign producers who are -- whose goods are imported is -- is empirically -- that's not -- there's no basis for that in the record. It's actually a mix what --

They're --

There's a -- typically, there would be a, regardless who the importer of record is, there would be a contract that would go along the sort of line of transfer that would allocate the -- the tariff and there would be different -- sometimes the foreign -- the foreign producer would pay them. Sometimes the importer would bear the cost. The importer could be an American, could be a foreign company. A lot of times, it's a wholly-owned American subsidiary of a foreign corporation. So it gets allocated. The empirical estimates range from, like, 30 percent to 80 percent of, like, how much is borne by Americans.

There -- there certainly is incidental and collateral effect of the tariffs that they do raise revenue, but it's very important that they are regulatory tariffs, not revenue-raising tariffs. And the way you can see this, I think, if you look at this policy, this policy is by far the most effective if nobody ever pays the tariffs. And I cite two policies, right? So, if you look at the trade deficit emergency, if nobody ever pays the tariffs and instead Americans direct their consumption towards American producers and stimulate the rebuilding of our hollowed-out manufacturing base, then the policy is by far the most effective. So a tariff, a regulatory tariff that --

The question whether this --

What it says, that he can regulate importation, and going back --

-- for hundreds of years, the way you regulate imports is through tariffs.

Let me -- let me address that verb point if I may because think about the canonical example, a statute that refers to a list of swords, knives, daggers, dirks, and pikes. There, you look at those -- that -- that list of things and you say, uh-huh, those are all weapons, therefore, a pike is a spear, not -- not a fish in that particular context. Now look at this list of verbs, "block," "prohibit," "compel," "direct," and so forth. You don't look at that naturally as an ordinary reader and say, oh, look, they're all not revenue-raising. What you say is they're all very broad, powerful, you know --

-- actions that you can take.

I think that what Congress -- the powers that Congress was conferring on the President are best understood through the plain text of the statute, which includes "regulate importation."

And let me say two things in response. First, as the notion that this is a revenue-raising tactic or -- or power, it is not. We are asserting a regulatory power. It's a delegation of the power to regulate foreign commerce. The way to control imports traditionally has been to tariff them. They say, well, you can impose quotas. Well, quotas are essentially economically, you know, economically equivalent to tariffs, so the question is why would you be able to quota under regulate but not tariff under regulate when the tariffs are themselves regulatory. And let me turn back to the question I was give -- the response I was giving to the Chief Justice --

-- to illustrate that.

I'd say two things in response to that. That's the very argument that this Court rejected in Algonquin, that the fact that these other specific statutes --

-- do you say in a certain way you have to use it this way.

And, again, not to say I will not do it again, but -- but, obviously --

-- we -- we -- we discussed the phrase "adjust imports." And they said, oh, the natural way to do that is to tariff them. And they -- it specifically said it makes no sense at all to -- to authorize quotas, which was conceded that that statute did authorize but not tariffs because those are equivalent to the -- here.

Hamilton against Dillin.

Exactly. Yes, it does.

It's hard for me to see one because what President Lincoln said is, okay, we're going to allow imports from hostile foreign powers, basically, rebellious confederate states, of cotton subject to a license and -- but you've got to pay cents a pound on cotton. When you do it, that's the condition. And -- and -- and that is -- is -- is so nearly equivalent to a tariff that says you can bring these goods into our country, but you've got to pay a ad valorem -- you know, ad valorem assessment on it. And so -- and -- and, of course, they have in their briefs conceded that quotas apply, that licensing may apply. There is the language in the beginning of 1701 that talks about instruments, you know, or other methods. Instruments, licenses, or other methods to do --

Very briefly, the other two cases, you know, the Polk case and then the President McKinley case, talk about duties, so I -- I -- I see an equivalence there, Mr. Chief Justice.

Yes, Justice Thomas. I'd say a couple things in response to that. First of all, this Court has stated that the nondelegation doctrine does not apply with anything like the same force in -- in -- as it does in the domestic context in the foreign context. And that again, to cite Dames & Moore again, Dames & Moore cites Youngstown. In Youngstown in Footnote of Justice Jackson's opinion, he goes into detail about this. He addresses Curtiss-Wright. He says there's a lot of broad dicta in Curtiss-Wright. But the holding of Curtiss-Wright, the ratio decidendi, is that the non -- the domestic nondelegation doctrine does not apply with the same force in the -- in the foreign context. And then he -- and he used that phrase, "does not apply." He says the strict limitations on delegation that apply, you know, in the internal context does -- do not apply in the external context. And so we rely on that line of cases and for the reason I talked about earlier, where we talk about a situation where the President has his own inherent authority to address foreign-arising emergencies and Congress is conferring tools on him that expand his ability, his capacity to do so, we are in the area of Youngstown Zone 1.

Yes, Justice Thomas. And turning back to the response I was giving to Justice Barrett earlier, there is -- I think it's very well set out in Professor Bamzai's amicus brief. There is this history of presidents using a tariffing power or a tariff-equivalent power, very, very close to tariffing power, in wartime to tariff trading with enemies. And that -- when the Trading with the Enemy Act was enacted in 1917, it was deliberately evoking that, and when it brings in the power to regulate importation, it's essentially codifying for -- an inherent power the President's already recognized to have. And then, in 1933, when that power was expanded to an area where he wouldn't inherently have it, the peacetime context, that codification, the meaning of that remains the same. The "regulate importation" language that's brought in from TWEA and then ultimately to IEEPA in 1977 is carrying with it that connotation. And that's reinforced by all the cases we've cited in our brief where there's been extremely broad delegations of the power to tariff specifically and the power to regulate foreign commerce more generally, going back to the time of the founding, which ties to your question about nondelegation.

Not in the same way because those statements are read into other provisions of TWEA that Congress did not enact in IEEPA that may still be there in TWEA, but those are limitations that it wouldn't make sense to do. And I think the significance of Yoshida is at a higher level. Keep in mind that their principal position is no tariffs at all. "Regulate importation" just doesn't carry a connotation of the power to tariff. And we say we've got historical sources going back to Gibbons against Ogden that say the opposite. But, more fundamentally, everyone knew that at the time IEEPA was enacted that it regulated importation. It just very visibly and very prominently had been upheld to include a very -- a sweeping global tariff.

In Hamilton against Dillin, licenses -- once you had the license, then you had to pay the fees, the --

-- license fees to get it in, and those are economical government tariffs.

Let me be clear. We rely on the phrase "regulate importation." We're not saying that the Executive Order --

No. I only cite that language, that introductory language about, you know, instruments, licenses, and otherwise, as --

-- another layer of breadth in this particular statute.

Yes, we're relying on "regulate importation" here.

Well, President Nixon did so under TWEA.

I don't concede that. I mean, two very visible examples, again, are TWEA and Section 122, as we talked about earlier.

Eight years later in Curtiss-Wright, the Court held the nondelegation doctrine for domestic affairs does not apply with the same force as it does in foreign affairs.

I think Justices of this Court have recognized in their opinions that one of the reasons that the nondelegation doctrine -- you know, that intelligible principle test hasn't packed as much punch as Justice Kavanaugh said in one of his opinions as it might otherwise have done is it did arise in the foreign affairs context because there, the Court has historically been very, very comfortable with very broad delegations. Chicago and Southern Air Lines and other cases of the 1930s. Shortly after, J.W. Hampton talked about the very large delegations of the foreign commerce power being very effective. And, of course, this goes back to the very dawn of the Republic. In 1790, for example, Congress conferred on President Washington basically the entire Indian commerce power. He said go, you know, get licenses, right, to do commerce with the Indians, and they'll be subject to whatever rules and regulations President Washington can make. So I do think there is a profound consistency between the announcement of the intelligible principle test in J.W. Hampton and then the subsequent recognition by this Court in Curtiss-Wright that the nondelegation doctrine doesn't apply --

-- with the same force in this context.

First of all, I can't say enough, it is a regulate -- regulatory tariff, not a tax, and that, I think, ties to my response to that, which is that this is a totally different context. This is IEEPA, a statute that Congress carefully crafted to grant the President admittedly broad powers to address foreign-arising emergencies. It's outward-facing to foreign affairs, where there's the broadest level of deference to the political branches that this Court has recognized in many cases. And it imposed not a floor or a limit on the amount of the tariffs that could be imposed, very naturally because, for example, as this Court said in Loving, quoting, you know, Alexander Hamilton and Federalist Number 23, it's impossible to foresee either what exigencies may arise or what tools may be needed to address those exigencies, the means that may be required to address those exigencies. Instead, Congress granted very broad powers, but they're confined to a particular domain. This domain is any property in which any foreign government or any national thereof has any interest. So the -- the sort of discipline if one were to apply -- we say you shouldn't -- but, if you were to apply the -- the nondelegation doctrine, the domestic-facing nondelegation doctrine in this context, there is a significant limitation there --

-- where you have a lot of powers that some --

This statute has its own constraints. They are constraints that are appropriate for the context, which is internationally arising emergencies. They are carefully crafted by Congress to address that. And they are, admittedly, different. They're in Section 1701. The president has to make a formal declaration of a national emergency, which subjects him to particularly intensive oversight by Congress, repeat -- you know, natural lapsing, repeated review, reports, and so forth. It says you have to consult with Congress to the -- the maximum extent possible.

But it is a --

Well, this particular emergency is particularly existential, as Executive Order 14257 says, and, of course, no one disputes the existential nature of the fentanyl crisis, which, you know, we had an agreement last week to create progress on, which illustrates the effectiveness of the tariffs tool here. But the point I would make in response to that is those are -- even if there's limited judicial review, which is very natural in the foreign affairs context, this Court has always -- always granted the President the -- the presumption that he's acting in good faith. There are real hurdles. They are very significant. It's got to be an unusual, extraordinary threat that arises in whole or substantial part outside the United States, so it's entirely foreign-facing, to the national security, economy, or, you know, foreign policy of the United States. So there -- there are those. Then there's, you know, 1701(b), which talks about how it can be used for this and -- and for no other purpose. Then there are limitations in Section 1702(b). Then there is the limitations I referred to earlier about what he can actually do. He can do a heck of a lot but only when he's dealing with property in which foreigners have an interest, and that's a pretty narrow domain. That's -- that's quite a silo, so to speak. And, then, of course, overarching it all, there is congressional oversight. And you may say congressional oversight may not have much bite, but Congress didn't think so. Congress crafted this compromise. It balanced the never-ending tension. When it -- when it drafted IEEPA, it had its eyes open, as -- as the dissent below says, its eyes open looking at the problem of sweeping emergency powers for an executive who may use them in a way that's excessive versus the need to address unforeseeable emergencies.

We don't --

We -- we don't -- we don't assert that here. That would be a much harder case. Now, in 1790 --

I don't think so, because we're dealing with a statute that was a carefully crafted compromise. It does have all the limitations that I just talked about.

He has broad powers in this very narrow silo.

Or at least --

We don't contend that he could do that. If it did --

Well, because we're dealing with a statute, again, that has a whole list of limitations.

Yes. I would say, by then, you would move from the area where there's enormous deference to the President in actually both the political branches, where, here, there's inherent authority, and pile on top of that there's a broad delegation of the duty and --

That would be different than a situation where there are metes and bounds, so to speak. It would be a wholesale abdication.

I think what the Court has said in its opinions is just that it applies with much less force, more limited application in this context. So perhaps the right way to approach it is a very, very deferential application of the intelligible -- intelligible principle test, that -- that sort of wholesale abdication of -- don't like to --

If so, very limited, you know, very, very deferential --

-- and limited is what -- and, again, the phrase that Justice Jackson used is it just does not apply, at least --

Well, I think we would as our frontline position assert a stronger position, but if the Court doesn't accept it, then, if there is a highly deferential version --

Well, we don't contend that. Again, that would be --

Maybe that's fair to say.

Because that would be, I think, an abdication. That would really be an abdication, not a delegation.

It's very likely that that could be done. That would be very likely.

I think -- yeah. In other words, I mean, obviously, this Administration would say that's a hoax, it's not a real crisis, but -- but, obviously --

Yes, but that would be a question for Congress under our interpretation, not for the courts.

No, we do not contend that.

And, in fact, and I'd cite, if I may, I'd point the Court to two cases. They're Loving against United States and then Mazurie that's cited in Loving. Those are situations -- for example, Loving against United States, the President had broad Article II inherent authority. There was the commander-in-chief power. But this Court held he does not have inherent authority to do the power that was delegated to him, right, which was the power to, you know, identify aggravators that make you eligible for the death penalty in court-martial trials. And yet this Court said, well, we're not going to see a delegation problem here, even though it's really a wholesale delegation, which would otherwise be legislative authority. It would be kind of like a small version of what your hypothetical would be, an abdication. But, because you're in a foreign affairs context or there commander-in-chief, a military context, where the President has his own delegation of authority, he doesn't have the power to do this, but, because of his background inherent authority, the Court said this is a situation where we're not going to see a delegation problem when there clearly would have been a delegation problem in the domestic context. And those cases, I think, are powerful here.

Absolutely. That is --

We do not assert that. We say that Congress can delegate that to him. And when Congress does so, as it does when it uses the frayed -- phrase "regulate importation" --

Yes. I agree with that. I agree.

I would look at the balance that Congress struck because what Congress did, initially, it had a two-House legislative veto that was held unconstitutional in Chadha --

-- and then Congress went back to the statute and amended it.

It took out the legislative veto and left in the joint resolution but still left the president with all those powers.

Yes.

I disagree because, in January of 2023, Congress voted to terminate one of the biggest IEEPA emergencies ever, the COVID emergency, and the President went along with that. So what the statute reflects is there's going to be the ability for a sort of political consensus against a declared emergency. Nevertheless, that's a political discipline.

Well, he has the authority to veto legislation to terminate a national emergency, for example. I mean, he retains the powers in the background because IEEPA is still on the books, but if he declares an emergency and Congress doesn't like it and passes a joint resolution, yes, he can absolutely veto that. Congress was --

I disagree with that. And the recent historical counterexample of Congress's termination of the COVID emergency demonstrates that political -- the political oversight that's baked into the statute's --

-- meaningful fold.

Once he lost it by a veto-proof majority in the Senate, I think the position is moot.

I think he realized -- and that's -- that's the political process working. There was a little consensus against it to coalesce.

I do think they would -- I can't think of a situation where they're not foreign-facing if you're talking about tariffs on imports. I mean, maybe there are other tariff contexts that I'm not aware of, but, yes, they typically would involve a foreign affairs thing. However, as in Gibbons against Ogden, if they are revenue-raising tariffs, they would not raise the same sort of, like, foreign affairs issues as regulatory tariffs, which are imposed not for the purpose of raising revenue but to induce foreign powers to change their behaviors and --

I don't think a revenue-raising tariff would be foreign affairs to the same degree at least. I think it has a foreign application, obviously, but I don't think it would raise the same issues.

Congress at that time was fully aware that a court of appeals with exclusive jurisdiction had interpreted that very phrase very visibly, very prominently, to include the power to tariff and then re-enacted it without change. The Court addressed a kind of lesser situation in Algonquin when it came to Section 122, and the Court said President Nixon -- the Court said President Nixon interpreted this to include a -- a tariffing power, a tariffing-like power. And then Congress a few months later re-enacted the language without change, and that's powerful evidence of congressional acquiescence. So that immediately historical background is very powerful. And it's buttressed, of course, by sources going back to the founding, where we say the phrase "regulate importation," a quintessential application of that is the power to tariff. That's how you regulate imports, is from --

If you look at those 69 emergencies, in fact, you go through them one at a time, which we had our team do --

-- it's really hard to find one where you look at that emergency and you say, oh, tariffs is the natural tool that you would use to address that emergency. So, for example, the blood diamond emergency, you know, tariffing these sort of, you know, criminal organizations in Africa that are financing terrorism through the sale of diamonds, you don't really tariff them. Or you take, you know, the Iranian hostage crisis, President Carter didn't say, oh, you seized all of our, you know, embassy personnel, you're holding them hostage, we're going to tariff you. Right? And if you go through those emergencies, there are two emergencies, though, where tariffs are the obvious natural tool for a president to use. One is the Nixon balance-of-payments deficit problem, and the other is these -- this particular emergency. And also, there's political reasons. And they weren't just solved.

I think that it's no question that President Trump is by far the most comfortable with the tariffing -- tariffs as a tool both of, you know, economic and foreign policy than many of the others, other presidents may have been. I mean, there are presidents like President Bush who, you know, probably wouldn't have naturally, you know, selected that particular tool or method. But, if you go through all 69 of those intervening emergencies, what they have not done at least is they have not identified where they say, oh, here's one where tariffs would have been the obvious tool, but the president didn't use it.

Sure. Three answers if I may.

"Adjust" is narrower than "regulate." And so, therefore --

-- the greater includes the lesser.

Second answer, "adjust" is the -- is the second Black's Law Dictionary definition of "regulate." The Black's Law Dictionary -- the original plain-meaning dictionary definition says adjust by rule, mode, or -- rule, method, or established mode. So there's just a plain meaning link there. "Regulate" -- "adjust" is a form of -- is a kind of regulation. And then I think far more importantly, "regulate importation," I can't emphasize enough, going back to the time of the founding -- going back to the time of the founding has been understood that the manner in which you regulate importation, the natural way to do that is to tariff. So it would be textually astonishing given that historical pedigree going back to Gibbons, going back to, you know, Madison's letter to Cabell, and all the historical sources cited in our briefs, it would be kind of astonishing to say, hey, President, you can regulate imports, but -- we're not saying this explicitly, but you do not have the power to tariff when the -- the tariffing is the -- in many ways, the quintessential way of regulating importation. So -- so that historical pedigree, you know, sort of gives freighted meaning to that two-word phrase.

Yeah. I --

-- I agree that there is maybe in -- there's a formal distinction.

But, as a practical matter, I think what counsel was probably arguing there is that there really isn't much of an important distinction. And I would point to the passage in Algonquin where the Court says, look, they've conceded that this includes the power to quota, and since quotas are a quantitative method, it would make no sense for Congress not to grant the qualitative method. And all the more so here if there's a concession, as they do in some of the red briefs, concede that --

Yeah. No, and I think the Court bought the argument correctly --

-- that there's -- there's really not a lot of daylight between those two. As a practical matter, certainly, almost no daylight. And so then the question, as the Court said --

I mean, I would say that they're -- that they're economic equivalents. Legally, they're pretty much the same. So I really don't see a big distinction there. And, of course, the -- the -- the logic of Algonquin was you have a -- you know, quantitative methods are -- quotas are allowed. Therefore, it would make no sense at all to interpret this not to include the qualitative or the -- the monetary exaction methods. Well, if -- if we're talking about a distinction between "regulate importation" including licenses that could come with fees but not tariffs, that logic applies all the more so --

-- which makes no sense.

I think that -- here is the way I'd respond to that. I think that language powerfully reinforces our position as the way you've laid it out right there because, first of all, "regulate importation" we say, and based on extensive historical pedigree, the core application of that is tariffing. To -- to list tariffing again would have been essentially redundant and unnecessary, especially if you look at the specific historical background of TWEA, where TWEA was enacting a tariffing power or a licensing-like power, you know, that was described as again duties and tariffs equivalently.

I think what you're saying is by means of instruments, licenses, or otherwise.

Yeah, instructions. Sorry. Yeah, instructions, licenses, or otherwise.

That otherwise, I mean, if you say instructions, licenses, or otherwise, and we're asserting a power that's very, very similar to licensing --

-- "otherwise" naturally carries that with it. But that's not our principal position. Our principal position is "regulate importation" means that. Right?

And so you don't need to say it again. However, if -- if -- Congress has authorized them to do it by licenses that could come with fees that are economically equivalent to tariffs and then says otherwise --

-- you know, that just reinforces the same conclusion that we get by using the phrase "regulate" --

Well, I don't know if it would be a hard time. Certainly, we'd have to have a statutory amendment --

-- which would be true of any case this Court definitively interprets the statute, yes, I think that the Court -- Congress would have to pass a statutory --

Yeah. Executive Order 14257 spells out the nature of the emergency and basically says that there's this -- this sort of lack of reciprocity, this asymmetric treatment, you know, our trade with respect to foreign countries, trade that does run across the board is a global problem. I think that puts in context the argument they make that this power to tariff is so broad because you're applying it to every country in the world. That conflates the nature of the tool, tariffing, which they're challenging here, with the nature of the declared emergency, which they haven't disputed. They haven't disputed, for example, that the President has correctly identified that virtually every major trading partner has this longstanding sort of asymmetric unfair treatment of -- of our trade. So the argument this power is so broad, this power is so broad is really based on a conflation of two different things. One is the power, right? Imagine this. Imagine that, for example, President Reagan had wanted to convince South Africa to change its apartheid policies and he imposed tariffs on them. No one would bat an eyelash and say, well, that's too broad, that's too broad, that can't be in IEEPA. The power to tariff is a -- sort of fits naturally with all those powers to block, prohibit, and seize and so forth. What they're saying, and this so broad, because the emergency is so broad, but, of course, that's a presidential determination that -- and -- and there's all kinds of basis for it. And also keep in mind that the emergency is not like just the asymmetric treatment. It's the impact of the asymmetric, the underlying conditions, the hollowing out of our manufacturing base, you -- you -- you know, the -- the -- the vulnerability of our supply chains, and, of course, the -- the -- our defense and industrial base's vulnerability of key inputs.

TWEA. And then this Court's opinions, of course, have used "regulate" and "import" or have -- point out that duties are the natural way to regulate foreign commerce. But yet the Court's --

I think it would be very unusual for Congress to spell out all the ways that you can regulate in that.

It's -- well, I mean, we have a concession of that from the other side that "regulate" at least includes qualitative methods, quantitative methods, quotas, you know, licenses. They concede that "regulate" -- there's a lot in "regulate" that's not spelled out there. And our point is you don't need to spell out tariffs because that's like of all of them the most natural, the most quintessential method of regulating imports.

As I said to Justice Kavanaugh, presidents who are faced with international crises to which tariffing is the natural response -- that's President Nixon and President Trump -- have invoked this authority. And also, frankly, President Trump invoked this authority in May of 2019 as well.

So it's more historically attested than they -- than they concede.

On that particular hypothetical, I think I said that would be a question for Congress.

Yeah. I don't -- in other words, that wouldn't be the sort of thing the courts are going to weigh into, is this really an emergency. You know, that would not be -- probably very unlikely. That would be a situation where at least there would be very, very, very deferential judicial review of that kind of determination, a legal dispute, but --

Our front line -- I mean, Trump against Hawaii, our front-line position is that it falls within Dalton against Specter, it's committed at the President's discretion when he makes his determination of a national emergency, but the Court doesn't have to decide that because whatever review is very, very deferential and it's easily satisfied here.

Thank you, Mr. Chief Justice, and may it please the Court: Tariffs are taxes. They take dollars from Americans' pockets and deposit them in the U.S. Treasury. Our founders gave that taxing power to Congress alone. Yet, here, the President bypassed Congress and imposed one of the largest tax increases in our lifetimes. Many doctrines explain why this is illegal, like the presumption that Congress speaks clearly when it imposes taxes and duties and the major questions doctrine. But it comes down to common sense. It's simply implausible that in enacting IEEPA Congress handed the President the power to overhaul the entire tariff system and the American economy in the process, allowing him to set and reset tariffs on any and every product from any and every country at any and all times. And, as Justices Gorsuch and Barrett just said, this is a one-way ratchet. We will never get this power back if the government wins this case. What president wouldn't veto legislation to rein this power in and pull out the tariff power? IEEPA is a sanction statute. It's not a tax statute where Congress gave away the store. Congress knows exactly how to delegate its tariff powers. Every time for 238 years, it's done so explicitly, always with real limits. IEEPA looks nothing like those laws. It uses "regulate," which Congress has used hundreds of times, never once to include tariffs. And it lacks the limits of every other tariff statute. And that is why, even though presidents have used IEEPA to impose economic sanctions thousands of times, no president in IEEPA's 50-year lifetime has ever tried to impose tariffs. And the President bypassed statutes that do address tariffs, like Section 122 for large and serious trade deficits, but that imposes a clear guardrail, percent cap, 150-day limit. This is Youngstown at its lowest ebb. If the government wins, another president could declare a climate emergency and impose huge tariffs without fines or -- without floors or ceilings, as Justice Gorsuch said. My friend's answer? This administration would declare it a hoax. The next president may not quite say that. This is an open-ended power to junk the tariff laws and is certainly not conveyed by the -- by the word "regulate." I welcome the Court's questions.

So -- and this is the argument in the -- in the fine dissent below. 100 And I think there are three answers to that, Justice Thomas. The first is revenue-raising. Embargoes stop the shipment. Tariffs start the tax bill. They are first and foremost ways of regulating revenue, as some of your own opinions said. This is the way we actually chiefly got revenue for the first hundred years of our republic. Tariffs are constitutionally special because our founders feared revenue-raising, unlike embargoes. You know, there was no Boston embargo party, but there was certainly a Boston tea party. The second thing, textually, in the statute, it's different. "Regulate" appears in a cluster of verbs, as was said before, "investigate," "block," "nullify," and the like. They describe embargo-like controls, "prevent" and "prohibit," for example. But they don't describe revenue exactions. That's Justice Kagan's point. The one verb that's missing here is anything about raising revenue whatsoever. Another point, congressional displacement. Today, there's a whole host of 101 statutes in the tariff architecture of Title which both expressly confer the power to tariff and always impose clear limits. Embargoes by the President -- embargoes don't have any of that. They don't set aside that whole thing. If you look at the Learning Resources brief at page 5, it goes through these statutes in detail. Section 122 expressly says "duties" and then limits it, percent, 150 days. Section 201, any duty on the imported article, but it requires ITC findings. Section 301, impose duties. That's the language of the statute, but all sorts of procedural restrictions. Section 338, the same. I can go through this and I could start, by the way, Justice Thomas, with the statutes at the founding, all of which expressly said the word "tariff" or an equivalent.

No, Your Honor, because I 102 think tariffs, because they're uniquely revenue-raising, impose special, unique concerns that go back to our founding. And so I don't think that they apply to embargoes. And, indeed, the history of this is very -- very clear, that as you just heard my friend say, in 1790, George Washington was delegated massive embargo power from the Congress. But what did Congress not do? And this is why the example cuts the other way. They never gave the president any sort of delegation of tariff authority at the time. Our point is not you can't delegate tariff authority. It's simply that you've got to do so with intelligible principles. And what you just heard my friend say is every single limit in IEEPA is one that is not judicially enforceable, there's no limit whatsoever, and, indeed, the main limit that was in there -- he calls this some compromise position -- the only compromise in 1977 was the legislative veto. And, as this case comes to the Court, that's no longer in the statute at all. So --

Right, and we are --

Oh, sorry. I'm sorry.

Yeah. Mr. Chief Justice, we're not -- we don't disagree with a large part of that. We think, instead of thinking about foreign versus domestic, the better way of thinking about it is Article I versus Article II. And, as my friend finally conceded to Justice Gorsuch, there is no Article II 104 power here at least when we're talking about peacetime. So --

So we -- we -- we agree -- we agree with the idea that tariffs have foreign policy implications, absolutely. Our founders recognized that. That's in the Federalist Papers. But, nonetheless, they exclusively committed that power to the Congress in Article I, Section 8, and gave it as its first power. So, when you hear my friend cite cases like Egan and Garamendi, they just don't apply to this specific unique situation in which Congress is given that power. And if you were tempted by this, I think -- I think the best place to look is Youngstown because what Justice Jackson said -- and I was surprised that he quoted pages 652 because what Justice Jackson said is, "Emergency powers tend to kindle emergencies, so it's essential the public may know the extent and limitations of the powers that can 105 be asserted and persons affected may be informed from the statute of its rights and duties." And Justice Jackson went on to say there that it's notable our founders didn't give the -- didn't give the president revenue-raising power even in a time of war.

No. Well, it -- it would be -- it'd be constitutionally permissible. The question would then be is the open-ended assertion of power here because every other tariff statute has limitations.

Absolutely.

Absolutely.

Thank you, Justice Kavanaugh. So five answers on the Nixon precedent. First, there is no evidence that Congress thought it was ratifying Yoshida. It was a single court of appeals case, not even a circuit --

Oh. If we're just talking about that, President Nixon did not rely on the statute whatsoever. And that's very clear. In fact, we have a Marshall McLuhan moment here because you have before you Alan Wolff, the person who was there in the room with Nixon, saying Nixon totally disagreed that this statute applied.

So, if we're just talking about Nixon, I don't think it can get the government where it wants to go.

Yeah. So I think the only way it does any work is if the President -- is through the -- the vehicle of Yoshida. And that's what I take it --

-- the government is arguing. And with respect to that, this cert-denied intermediate court of appeals decision I don't think can come close to overcoming the clear, plain text. The word "regulate" is -- words "regulate importation" -- the word "regulate" has never been used. It's been -- Congress uses the term 1499 times. We got about that number of hits when we looked at it, and maybe there's some double-counting. But it is never used even once to impose taxes or revenue-raising. And that was the question that Justice Barrett was asking. And so I don't think that this intermediate court of appeals decision will get you there. And then, even if you thought that Congress knew about Yoshida and even if you thought they liked it, which there's absolutely zero evidence of, I don't think that helps the 109 government for reasons that Justice Alito was pointing to because Yoshida said three things: (a) TWEA doesn't give the unlimited authority that the government is seeking here; (b) they were only upholding the -- the limited specific assertion of authority that President Nixon sought there; and, third, going forward, the solution they said in Footnote 33 was to use Section 122 of the 1974 Trade Act, percent, 150 days. So we have no problem with the President doing that. It's just that this President has torn up the entire tariff architecture. You know, for example, he's tariffing Switzerland, one of our allies, which we have a trade surplus, 39 percent. That is just not something that any president has ever had the power to do in our history. And the idea that Congress, by implication, did this in 1977 and handed him all this power, I think, is really difficult.

So, if it's revenue, yeah, we do dispute that, absolutely.

So, you know, Your Honor, sometimes we think of fees as not revenue-raising but rather capturing the cost 111 of government services, in your example, the going to the park. That may -- you know, those kinds of cases, which I think we've struggled with --

So, if -- if it doesn't raise revenue, then -- and it's not about that, then I think that's fine. If it does --

-- then I think it's a tougher --

So I think -- I think in that circumstance that it wouldn't be a regulation in context and wouldn't be permitted. That is, at least in the context of tariffs and trade, we know, Justice Alito, from the founding on --

I take it the initial point was and on its face it is revenue-raising, that that's what it's for, and so I think that would. And, look, I don't doubt that there are edge cases. That is what this Court confronted just recently in FCC versus Consumer Research. And you said, look, what is a tax is sometimes very hard, what is revenue-raising. This is obviously revenue-raising. 113 Their own brief to the Court says it's going to raise $4 trillion. And, Justice Alito, you in your Consumers Research dissent or Justice Gorsuch's dissent that you joined said taxation is special and different and it is the most powerful thing the government does. And the idea that Congress, when they know exactly how to write tariff and tax statutes, gave this power by implication through the word "regulate" I think is very, very hard to --

Yes. So I think it cuts the other way. So, you know, as Justice Jackson said, it's -- when you're in an emergency situation, the statutes actually have to speak with more precision. The public needs to know because emergencies beget emergencies. 114 And I would say the best way of understanding what Congress does in emergencies is to look at their emergency statutes. Not one has ever given the president a taxation power or a tariff power. We've had all sorts of emergencies for 238 years. No president has ever said, oh, the way to deal with that is I need to have a tariff authority. And, as Justice Sotomayor said, IEEPA gives already a quota power. So you can get what the foreign policy piece of it is through that. I'd also say, Justice Alito, Dames & Moore, which the Chief Justice referred to earlier, I think is really important here because the Solicitor General in that case made a similar argument to what you just heard on -- on the claims provisions. He said it falls within "regulate." "Regulate" is a capacious term. He said, Justice Alito, what you said, this is an emergency situation. And he said you've got to defer to the President on a major issue of national security about this very statute. And what did the Court do? It rejected those arguments and said IEEPA doesn't 115 cover this --

Couldn't do tariff but could do quota, embargo, all of those things.

Because there's a cat --

There's a category shift 116 between a tariff and the other eight powers in IEEPA because it is revenue-raising. So it's not a difference in degree or something like that. That's why, you know, I don't doubt tomorrow --

Just --

Yeah, Justice Alito, I think you've said many times the purpose isn't what you look at. You look to actually what the government is doing. And if you disagree, if you think we're -- you know, if you think -- or, excuse me, if -- if -- if you ruled for us and the president says, I need this power, he could go across the street to Congress tomorrow and get it by a simple majority through reconciliation. 117 But, if you vote for them, this power, as Justice Gorsuch said, as Justice Barrett said, is going to be stuck with us forever. The power to --

Yeah, a few thoughts, Justice Gorsuch. First is the SG is not even making that argument, and I think they're not making it for a number of reasons. One is that there's a strong presumption against reading statutes this way. In the unique tax and duties context, Hartranft is one of those cases which says, if there's doubt, you don't read the statute to confer such powers. Second, if you were to do that, it's open-ended. It allows -- and this is your hypothetical -- it allows under the word "license" them to tariff the world, you know, and -- and --

I think it's -- I think you could call it major questions. I just think it's like Justice Barrett said in Nebraska versus Biden the most natural way of 119 understanding what this statute is about. We're talking about, under the government's reading, a statute that gives the power to the President to junk the entire tariff --

So I think -- well, I think I am disputing it as well. I think the licenses is something Justice Sotomayor was saying don't expand the power. They are not verbs. And so it is limited to the nine verbs there.

And so "regulate," I don't think --

Yeah.

No, Your Honor. So tariffs are different because they're revenue-raising, and they're -- and I think it goes to the point I was saying to you in our very first colloquy, which is quotas, embargoes, and stuff are different for a different reason, which is there's no -- there is a tariff architecture around Title 19, in Title 19, that a tariff would -- like in your hypothetical, would supersede. And, here, the President is seeking the power to set aside all of our trade treaties unilaterally under the word "regulate." I just don't think it can bear 121 that weight.

Yeah. The government's never made that argument, Justice Alito, and I think for very good reason, because it only applies to MFN violations, which are not at issue here. You can only tariff if the President "finds as a fact that a country satisfies two conditions, including that it discriminates against the United States." There are all sorts of hosts of other reasons why Section 338 may have lapsed and that's why no President has ever used it. But, 122 look, we are --

So two things, Justice Alito. Sections 252 and 301 have been understood by many to have superseded Section 338. And, second, I don't think you have to get into this issue at all. We're not here saying that the government doesn't have a 330 -- 338 power. That's something that can be decided by other courts at other times. As these folks come to the Court, as the government comes to the Court today, they're citing one statute and one statute only, IEEPA, and we submit to you it doesn't come even close to authorizing these worldwide 123 tariffs that they're seeking today.

So I think, at that point, we'd have that case. I mean, I'm not here to say that 338 does or doesn't do one thing. I'm responding to the government's argument, which is the invocation of IEEPA and IEEPA alone. But perhaps that point, Justice Alito, may give them some comfort --

So, Justice Alito, I think a few things. One is I think it's rich for the government to be making this argument about the refunds undermining us because they opposed a preliminary injunction in this case by saying, oh, don't worry, we'll give the refunds later and they sought a stay in the Federal Circuit on exactly that ground, which was you don't need to do -- you don't need to implement the Federal Circuit's decision because we'll give the refunds later on. And now they're suggesting that the reason it's too late --

I --

Justice Alito, I think that is forfeit -- forfeited nine ways to Sunday. This amicus brief has been filed in every single stage of this case. The government's never embraced that argument. For them to be able to do so now, I think, is -- is way, way too late. But I do think, if you ruled, as we're suggesting you do, against the government, they can go and try and seek to use other authorities, whether it's 338, Section 122, et cetera. Those are the ways prescribed by the Congress. And, as Justice Kavanaugh was saying earlier, every other president has used all this suite of other authorities, 201 for steel, for -- for autos and things like that; 301 for countries like China. This President has come along and said something different, and with all due respect, we don't think IEEPA allows 126 him to do this junking of the worldwide tariff architecture.

There's been a variety of different views about that, but, you know, the executive or -- my friend said, well, prior presidents had no occasion to use the tariff power, which is belied by the very executive order he's defending here, which says that the trade deficits have been large and persistent every single quarter since 1976. And we've had trade wars. President Reagan initiated, you know, different ones and the use of different authorities. But never once did a president try and seek IEEPA as the basis to rewrite the entire tariff code.

Heck, yes, Justice Alito. I think Justice Gorsuch nailed it on the head when saying that when you're dealing with a statute that -- that is this open-ended, unlike anything we've ever seen to give the President this kind of power, yes, this isn't just delegation running riot; this is delegation that's a legislative abdication.

So, Justice Alito, we think it actually cuts the other way, as I was saying earlier. That's what Justice Jackson said. And, you know, you already confronted that in Dames & Moore and said it's not that 128 open-ended even though it's an emergency. And, by the way, other emergency statutes have very serious limits. Section 122 is literally about President Nixon's proclamation of an emergency. That's what it's about. And it's limited percent, 150 days.

Of course not because there, you have shared powers between the President and Article I and Article II powers. That's what I was saying to the Chief Justice.

Absolutely. But -- but there, you know, it's military. There's a whole unique history behind that. But, here, you're talking about something that is exclusively committed to Congress in Article I. 129 And there, yes, when you have delegations, I would say, Justice Alito, even when you have delegations in some military cases, in emergency statutes, they have all sorts of limits. So -- so U.S.C. 2808 says that in a declaration of war or a national emergency, the president can "undertake military construction necessary to support emergency use of the armed forces" --

-- but it has limits.

Oh, Justice Sotomayor, I wish I had an hour to talk about this with you because this is just -- this argument by the government, advanced in their reply brief, is wrong, you know, every which way. So --

So --

So it's a war powers case. It's about conquered territory. It has nothing to do whatsoever with domestic tariffs. And absolutely, you're right in saying that the way that court even in those cases, even at the height of the government's power, war powers, they said Congress had to ratify it. And that's what at page 96 it was --

And that has not happened here, not even close.

Excellent. Algonquin, Your Honor, is, you know, under --

Oh. Oh, sorry.

I do think it's relevant at least for delegation purposes because, you know, as this case comes to the Court, the one check that was in there, the so-called compromise, is a legislative veto which now no longer exists. And that's why I said to Justice Alito this statute now looks unlike any other statute with respect to tariffs.

Yeah, I don't think so. I mean, Justice Kagan, I think that's a very tough common-sense argument to make because every single delegation of tariffs -- tariff power statute from Congress to the president always has limits and including, you know, Section 122 passed just right before IEEPA, had in the case of the exact problem that this executive order is dealing with, large and serious trade deficits, it said the way to deal with it is percent, 150 days. The idea that three years later they just said, oh, no, junk the rule book, I think is very difficult, and no Congress, I think, would rely just on the legislative veto for such -- a thing of such momentous importance. As you said to my colleague earlier, why would any president look to -- look to all of the different tariff statutes in Title if you can just IEEPA them all, French Revolution them all.

Yeah. So it may be foreign-facing, but there is still no Article II power whatsoever. There is no citation whatsoever in the government's brief to any notion that the President has Article II tariff authority. Now, look, I will say in wartime, conquered territory, maybe. But this is not a -- this is not a wartime or conquered territory statute. This is -- use of the statute, they are tariffing the entire world in peacetime and they are doing it and asserting a power that no president in our history has ever had. Even Justice Kavanaugh's example of Nixon, really far more limited, didn't blow past Congress's limits, as was said in Yoshida. This is a whole different animal. And maybe Congress has that power, as I agree with Justice Gorsuch. I don't think 135 that it does. But, boy, they've got to say so really clearly. And, here, there's nothing like that in the text of IEEPA.

No, I don't think so. I mean, if we did, we would -- I think we'd win for reasons expressed. But I don't think so at all. So, Justice Gorsuch, our position is not that "regulate" can never mean tax or tariff.

Our brief at page gives you an example. A president may regulate cars coming into the city and then, if it adds by charging tolls or something like that, absolutely. In context, it does. Here, the context you're referring to, Story and so on, says nothing about this case. That is the constitutional context about Congress's use of power.

Sometimes they can be revenue-raising in the same way.

So --

So let me --

-- let me take the question in two parts. One is about the -- the word "regulate" and the other is about licensing. With respect to the word "regulate," when it's used in the constitutional sense, it's very different than the sense in IEEPA that my friend is asserting. When we're asserting IEEPA, we're talking about a statute that is granting the President massive powers. And so the relevant context that I think you look at in asking the question what did Congress mean in 1977, the best context, the most natural context is what does Congress say every time they grant the president such power.

And then there's just one other point on this. Constitutions are read totally differently. Story and Madison are talking about the constitutional phrase, and as Chief Justice Marshall said in McCulloch, a constitution we're expounding the prolixity of a legal code is the opposite of the way you read the Constitution.

Okay.

And --

Because it's only a mechanism to implement the nine powers. And 139 that license sometimes can be revenue-raising and sometimes not.

And so --

So because I think, again, our point to you is that -- that Congress -- that license -- that there's two kinds of -- two -- licenses come in two flavors. If the -- if an executive order is asserting a license fee to recoup the cost of government services or something like that, as I was saying to Justice Alito, that doesn't look different than the other verbs. That's not revenue-raising. It doesn't implicate the founders' concern. It doesn't implicate the concerns you wrote about in Consumers' Research about the fear of the government --

Right. It's only a means, and we looked at the history --

Yeah.

Because, again, it has to be related to the nine powers that are given there.

Justice Gorsuch, if the -- if the license where the otherwise is 141 raising revenue, then it is a difference in kind from the other verbs, and we looked at the history of licenses --

-- under TWEA and we were not able to find any involving licenses or license fees.

I don't know that I have a position on that. It maybe is a little too afield for me to --

Oh, I see, because, here, 142 Congress has specifically been given the exclusive power over tariffs. And so, if they were to part with it, I think, as this Court has said in J.W. Hampton, which is a tariffs case --

I think it's -- at least the intelligible principles is what this Court has used for tariffs specifically, and we think that's the way you should look at this. And then, under intelligible principles, this is miles away from any delegation we have ever seen.

There's a lot there, Justice Kavanaugh, so please bear with me. First, I'd like to just clear --

-- clarify what our position is generally and then deal with Algonquin. Our position is not that you have to use the word "tariff" or any other magic word. It's true that Congress has used a specialized vocabulary since the founding, since 1790, using words like "tariffs" or "duties," but as I was saying earlier to Justice Gorsuch, you could even use the word "regulate," as page of our brief says, or you could even imagine something that says, "the President may regulate importation by requiring importers to pay percent of the value of goods to the Treasury." So I don't think you have to use any particular word. The question is, in context, is it -- does it --

So Algonquin does have, I think, a context that's miles apart from what the -- what the government is seeking here to do with IEEPA. So, first of all, it is a common-sense statute. I understand there's 146 some rhetoric by -- a common-sense reading of the statute. I know there's some rhetoric by the lawyer who stood here before, which is, of course, forgivable, but it was a statute about one product, 232, article by article. It's one product. This is a billion products or even more that the government is seeking. Algonquin was expressly a trade statute. It was the 1962 Trade Act. It's everything this case isn't. Algonquin had a specific reference to the word "duties" in a separate provision. Algonquin had a legislative history that was clear as day that the President was -- the President was given this power. And I understand this Court today doesn't look to the legislative history, but the way Algonquin got to where it was was by saying the legislative history, the chief sponsor of the act --

Okay. So I'd also say, and maybe the most important point, 232 -- our point -- our argument is not just that you have to specifically authorize a tariff with some sort of word but also that one way of understanding whether Congress is delegating its awesome tariff power, its awesome taxing power is to ask are there limits to what Congress has put in. And in Algonquin, in Section 232, the Court points to and goes painstakingly through all the limits. The first words of the decision are all about how constrained the statute is. It's a reticulated scheme. The cabinet secretaries have to make certain findings. There are specific statutory factors Congress says the President must look at before acting. There are public hearings. There are limited remedies "to the extent necessary." All of that is in the statute. All of that is in the Algonquin opinion. None of it is in IEEPA. That's the problem. And that's why just like Dames & Moore, the Algonquin case said this is a very limited decision limited just to the facts.

Sorry. Could you say that again?

Not a fee. So I should have said this earlier, but license is different from a licensing fee. IEEPA and TWEA authorize licenses, not license fees. And no president has ever charged, to my knowledge, fees under those two statutes for the licenses. So fee is impermissible. License is okay.

Might be. Might be, I mean, but -- but, once they start revenue-raising, you implicate the most serious 149 concerns --

If -- if the licensing fee is just to -- I didn't concede that.

So, if the licensing fee is just to recoup the cost to government services, I think that may be okay. I don't think you need to get into it. Here, the government is asserting a power which they say in their briefs to you raises $4 trillion.

Absolutely. And, Justice Barrett, I think, like, just the natural reading, if you're to look at the word "licenses" and think, wow, Congress smuggled this incredible power to do all of these different things that the government is doing 150 here, 39 percent taxes on some countries and others through the word "license," that's a tough one.

I don't think so for the reason that, you know, it would be --

Well, it depends.

Fees, exactly.

Yes.

Correct.

Yes.

A hundred percent I think it would be interpreted differently. Justice Jackson in the --

Yes, because, once you're 152 talking about -- once you're carrying over wartime precedents to peacetime for reasons --

No. I think that the conquered territory language and all of that may go to the President's Article II powers, his inherent powers in conquered territory, but I don't think it gets the government where they need to go. The CAC brief and the brief by Professor Paul Steven goes through and explains why, in 1933, when Congress decided to bring these concepts into peacetime, it severed the wartime roots. And there's a extensive legislative history --

Right.

No, I don't think it confers it in either place. I think the President in the -- it's located, the President's power in conquered territory is not in the Trading With Enemies Act or anything like that but rather in --

Exactly.

So the first thing I'd say is that just underscores just how major a question this is, the very fact that you are dealing with this with quotas, there's no refund process to the tunes of billions of dollars or embargoes, but there is here. But, for our case, the way it would work is, in this case, the government's stipulated for the five plaintiffs that they would get their refunds. So, for us, that's how it would work. Your question, I take it, is about everyone else where you don't have a class action or anything like that. With respect to everyone else, there's a whole specialized body of trade law. And U.S.C. 1514 outlines all these administrative procedures. It's a very complicated thing. There's got to be an administrative protest. There was a Harbor Management case earlier that this Court was involved with in United States Shoe in which, you know, the refund process 155 took a long time. There were any number of claims and equitable relief and other things.

So it's difficult, absolutely.

We don't -- we don't deny that it's difficult, but I think what this Court has said in -- in -- in the McKesson case in 1990 is a serious economic dislocation isn't a reason to do something. Northern Pipeline, you guys stayed your decision for a while in order to let the congressional process unfold. There may be a congressional process here as well. You know, your -- you know, it may be able to also be that this Court could limit its decision to prospective relief under the John Q. Hammons case. So there's lots of possibilities.

I did, and, if I blinked, I would miss it because it was virtually nothing. And, in fact, both page -- page of both the House and Senate report outline all of the powers that are given under IEEPA, and -- and -- and none -- and none of them have tariff. There's one brief mention of "tariff" in the legislative history, but nothing else. And, by the way, IEEPA passed by voice vote. It was, you know, there was -- not controversial. We don't deny IEEPA is a big, major statute, but the question is, did it authorize tariffs? One of the most contested 157 things since our founding, we've had battle after battle --

Zilch.

That's exactly right. They're responding to all sorts of -- of foreign policy emergencies and foreign threats, and they're giving the President economic 158 sanctions power.

It was envisioning all the things that the presidents since 1977, going back to Justice Kavanaugh's question, have used it for. So they've used it for quotas, like limitations on the number of goods. They've used it for screening and reporting requirements, like Executive Order 12284 about reporting property of the shah. And they've used it for standards, like domestic safety standards, environmental standards, labor requirements. They've used it for embargoes. So all of those are things that I think Congress had in mind in IEEPA. And I think the proof of this, that it's not this massive statute that allows the government to do anything, is Dames & Moore itself, because 159 this Court rejected the idea that "regulate" includes the claims extinguishment that was at issue in that case. It's a much more limited statute. And, Justice Jackson, there was a predecessor Justice Jackson who said -- who said, you know, that, "For all its defects, delays, and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law and that the law be made by parliamentary deliberations. Such institutions may be destined to pass away, but it is the duty of [this] Court to be last, not first, to give [it] up." And I take it my friend's argument on the other side is in deep tension with Youngstown and that canonical principle.

Mr. Chief Justice, and 160 may it please the Court: I'd like to begin by picking up with the exchanges with Justice Barrett and Justice Gorsuch about licenses and license fees because I think we ended on the right note, but I just wanted to make sure that our -- that at least my client's position is clear on this. Licenses are different from license fees, and I am not aware of any history in the five decades that IEEPA has been in force of any fees charged for the licenses under this statute. This is a statute that -- licenses can be used, for example, the President might ban certain transactions with a foreign country but then grant licenses to do them for humanitarian reasons, but, as far as I'm aware, there's never been a fee charged for that. And I do welcome the Court's questions, but I think that's -- I just want to make --

-- absolutely clear --

Well, "or otherwise" could be things like instructions or licenses, but, again, it's -- it's fundamentally -- having something that is a revenue-raising measure or even that is just an exaction of some sort is a fun -- is fundamentally categorically different from what we understand instructions and licenses to be involved, just like we think "regulate" doesn't carry the -- the financial connotation given the other verbs there. If -- if I could turn to some of the 19th century history that we were discussing as well because I think there may be a little bit more to add there. The -- the 19th century cases about the President's inherent Article II authority to -- with respect to -- in a wartime with respect to importation is -- is not the power to impose tariffs on imports coming into the -- the United States. That is not what any of those cases were about. They were about the President's power, you know, in a wartime as an occupying military force to impose tariffs in occupied 162 territory, in Mexico, in the Philippines, in California. The Civil War case might be the closest case, but even there, what we were talking about were essentially -- there were licensing fees, but they were export fees. They were fees that were being imposed on the exportation of cotton from the occupied South into the North. And so I don't think any of that provides authority for this general notion that there is a background principle that the President, even in wartime, has an Article II authority to impose tariffs, certainly without the consent of Congress.

Yes. I mean, there are other limitations in --

-- the statute. Yes.

And the President can in the form of, for example, quotas. But what makes an embargo or quotas fundamentally different from tariffs, as my -- as my friend has already explained, is the revenue-raising aspect of that. That makes it a far more significant power. It creates additional danger of -- of overuse. And I think the other point, as Justice Jackson was pointing out, is that it -- it cedes control over whether the transaction occurs from the government to the individuals engaging in this transaction. And that is not what IEEPA is 164 intending --

Yes.

I don't think --

Yes, I think it's the effect. And, to be clear, I -- I think there's -- there's -- there would be a serious difficulty with interpreting any of these words even to allow revenue-neutral exactions here because none of them involve -- none of them -- and, again, as far as I'm aware, IEEPA has never been used in that way. But I don't think there's --

I -- I'm not aware of any use of that sort of -- under IEEPA, but -- but even if -- even if that is permissible, it -- I think that's permissible precisely because it is -- it doesn't have the effect of raising revenue.

Yeah.

I think it absolutely does because it's a fundamentally different power. It's -- it's not a donut hole; it's -- it's a different kind of pastry. (Laughter.)

Well, there are a couple of points in there, and -- and I'll try to get to all of them, but, I mean, I think all of us agree that context is what matters here --

-- and that you certainly could use the word "regulate" to -- to talk about a tariffing power, like you could use it to talk about a taxing power. I mean, we impose taxes for regulatory purposes as well. But the -- the -- the federal government hasn't identified a single other federal statute that uses the term "regulate" to authorize tariffs or taxes. That is just a different kind of power.

That's exact --

That's exactly right. And I think the reason, getting back to common sense, as to why a legislature might authorize that is that you might not fear abuse of that power in the same way that you would be concerned about abuse of the power to impose unlimited taxes with no -- with -- with sort of no controlling principle.

Because, to be blunt about it, there's nothing -- one of them there's something in it for the government and one of them there isn't. Actions that bring in revenue from -- from the pockets of taxpayers to the Treasury pose a different set of concerns. Our framers were very concerned 169 about that.

Because they bring in revenue and because that -- that creates a --

Well --

Because, if -- look, if there -- if there is some sort of international emergency and the -- the -- the appropriate way to deal with it is to make sure that no more than a thousand of this product comes into this country at -- at a particular time, this statute gives the President the power to ensure that exactly no more than 1,000 come in at this time. Setting a -- setting a tariff doesn't ensure that only 1,000 will come into this country. It -- it cedes control over whether the transaction occurs. And what it does is it -- is it then, you know, adds revenue to the Treasury. And that is -- that is, again, 170 something that our framers thought was extremely important and -- and a core Article I --

Well, no --

Well, and I -- and I don't mean to suggest that you can't use exactions to control quantity. What -- I think Algonquin just shows the importance of context. It might be perfectly natural to read a phrase like "adjust imports" in the context of a statute that talks about tariffs, in the 171 context of the Trade -- of the Trade Expansion Act that has all sorts of provisions about tariffs and about the President adjusting tariff rates. It might be perfectly natural in that context to read a phrase like "adjust the imports" to be referring to changing tariff rates. It's just as unnatural to read a phrase like "regulate importation" to discuss that when the statute has nothing to do with tariffs and doesn't otherwise mention tariffs at all.

I think it would be a huge deal. It is just a different kind of deal.

Correct.

Correct.

Yes, yes. And it looked not just at the text of those specific words, the -- but -- but also the context of what else was in the statute and the fact that some of the factors that the President was supposed to be considering.

Exactly. This is about -- this is a statute about giving the President control over assets, over transactions, over access to banking.

That's exactly right.

Exactly right.

Yes, that's exactly right.

Yes.

Yes. Well, and it's a question of understanding what Congress would have thought it -- what -- what powers Congress would have thought it was conferring. Would Congress have understood the phrase "regulate" --

Yes, and every -- we -- we know that every other time that Congress has authorized the President --

Yes.

Yes. I --

Yeah, it -- the -- the -- 176 yes, absolutely. And, again, I'll -- I'll refer back to Justice Jackson's concurrence in Youngstown that emergency powers tend to breed emergencies. Look, Biden versus Nebraska, I think, is -- you know, says very clearly --

I think what I'm trying to say is that you -- you have to read the statute the way that Congress would have understood it when it was enacted, not how it is used in any particular case. It may be used for very good reasons in a particular case, but the question is, would Congress have understood itself to be ceding this power with no limits, unlike every other tariffing statute, with no limits --

I think maybe, but it would have been --

Prevent. And -- and so I think the question would be could you --

Well, it -- I think it depends what you're screening for. But, if you were -- if --

Well, again, I think, if we're talking about potentially blocking some property from coming into this country because of safety concern, it might be that prevent 178 would have gotten you there. What I think "regulate" does is it -- is it clarifies and amplifies that -- that you don't just -- you know, it -- it can be nuanced in that way. It can say we will let this come -- this come in if it has certain safety requirements, if certain features have been disabled, something like that. And I think -- so I think "regulate" harmonizes with prevent, investigate during the pendency, block during the pendency of an investigation, those sorts of verbs.

Yeah.

I -- no, and I don't think it's just that because -- I -- I mean, I do think it's that, but it -- but it's also that there are a -- a range of tools that are more calibrated that the President can do. It doesn't have to be a complete embargo. It could be limits on particular kinds of products. It could be quantity, quality limits.

Well, and the President -- and there are many other statutes that might apply depending on --

-- the exact circumstances --

-- 201, 301, 232.

That's exactly right. So --

That's exactly right. The question is who decides.

Exactly.

Yes.

No. I think we cleared up any maybe potential disagreement about licensing fees, but I think we all agree on that.

I think it's a huge piece of what's animating our argument. Thank you.

So it doesn't deal with it because it's not a sanction imposed against traffickers. It is a -- say it is -- if you think of it as a sanction, it is a sanction 185 imposed against people importing lawful goods in the hope --

I don't think so. I think that they are -- that the history of -- of IEEPA and even of TWEA is imposing sanctions directly on the wrongdoers. These are statutes about providing sanction authority against -- against international actors whose behavior we want to change, and that's not what tariffs do.

Thank you, Mr. Chief Justice. Just three points. One an interpretive point. The statutory language here is "regulate importation" and, again, by 186 means of instruments, licenses, or otherwise. Their argument is that that phrase carries with it a whole host of unemunerated forms of regulation, including quotas, licenses, licenses apparently that come with fees as long as they're not -- as long as they're sort of profit-neutral fees, environmental restrictions, qualitative restrictions, reports and so forth. It's just that the one form of regulation that they would not include is tariff regulation, which, of course, is the quintessential most historically tested method of regulating imports. And so that -- that -- that -- that additional phrase about, you know, by means of instruments, licenses, or otherwise really sort of reinforces the plain meaning, the ordinary natural meaning of "regulated importation" here. So, when it comes just to the plain text of the statute, their argument is a donut-type argument, and it's not an argument that does justice to the statute's plain text. On the nondelegation point, Justice Gorsuch, you alluded to the founding or 187 delegations of the Indian commerce power, and I just remind the Court that in 1790, in July of 1790, Congress passed a statute that essentially delegated to President Washington essentially the entire scope of the Indian commerce power. He said you can do commerce with Indians if you have a license that you had to pay a fee for, but -- and that -- that will be subject to such rules and regulations as the President makes with no further guidance. So, when it comes to this foreign-facing, there, it's obviously analogous because the Indian tribes are not foreign sovereigns, but this foreign-facing situation, we have a very sort of deep and profound historical pedigree through broad delegations of the regulation of commerce, right, the foreign commerce power in that case, the Indian commerce power. And that ties, I think, to what I take to be the main theme of the arguments on the other side. And I think that Mr. Katyal started by saying tariffs are taxes. And I want to complete the answer I think I was 188 giving to the Chief Justice when I got interrupted, is if you look at these, these tariffs, these policies, it is clear that these policies are most effective if nobody ever pays the tariff. If it never raises a dime of revenue, these are the most effective use of these -- of this particular policy. And I said there's two buckets there. One is, first of all, when it comes to the trade deficit emergency, if no one ever pays the tariff, but, instead, they direct their consumption domestically and spur the creation or the rebuilding of our -- of our hollowed-out manufacturing base, that directly addresses the crisis. It's more effective if no one ever pays the tariff. That's the point of it, really. You know, that's a fundamental point of it. And that's one piece of these. And then, as to both of them, as to both of the declared emergencies, the tariffs are an incentive, a pressure point, leverage, bargaining chip, as the Court said in Dames & Moore, to get countries to change their behavior to address the foreign-arising emergencies. So, if you look, for example, to 189 take a historical example, last week's trade deal with China, it unlocked access to rare earth minerals, which, of course, have a critical national security aspect to them, and it got China for the very first time to change its policy with respect to fentanyl precursors, which is a crucial piece of that. That -- those tariffs, if no one ever collects them, but the threat of imposing those tariffs gets China and our other trading partners across the world to change their behaviors in a way that addresses this, then that's the most effective use of the policy. So they're clearly regulatory tariffs, not taxes. They are not -- they're not an exercise of the power to tax. They are the exercise of the power to regulate foreign commerce. And that's why the statute says "regulate." It doesn't say "tax." It says "regulate." And -- and for that reason, we are squarely within the tradition that I was talking about before of very broad, historically very broad, delegations of the power to regulate foreign commerce to the President because he has inherent Article II 190 authority in the area of -- of -- of -- of foreign affairs, although not that. It has to be delegated to him. Otherwise, the delegate -- delegation would be superfluous. And for all those reasons, we ask the Court to reverse both the decisions below.