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SCOTUS Dubious About Trump Tariffs

Nov 06, 202537 min
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Episode description

Michael Dorf, a constitutional law professor at Cornell Law School, and Timothy Brightbill, a partner and co-chair of the international trade practice at Wiley Rein, discuss the Supreme Court oral arguments over Trump’s sweeping global tariffs. June Grasso hosts.

See omnystudio.com/listener for privacy information.

Transcript

Speaker 1

This is Bloomberg Law with June Grosseo from Bloomberg Radio.

Speaker 2

It's one of the most important cases of the term, a test of presidential power where President Trump's signature economic policy is at stake. After nearly three hours of oral arguments, it appears that a majority of Supreme Court justices across the ideological spectrum are skeptical that Trump has the legal authority to impose billions of dollars of tariffs on goods

from nearly every country. Chief Justice John Roberts and Justice Sonya Sotomayor said, the tariffs are taxes, and the Constitution gives taxing power to Congress.

Speaker 3

It's a congressional power, not a presidential power to tax. And you want to say tarifts are not taxes, but that's exactly what they are, degenerating money from American citizens revenue.

Speaker 4

The vehicle is in position of taxes on Americans, and that has always been the core power of Congress.

Speaker 2

Trump is arguing that an emergency powers law, the International Emergency Economic Powers Act, or AIPA, authorizes him to collect tens of billions of dollars in tariffs a month. AIPA gives the president an array of tools to address national security, foreign policy, and economic emergencies. But it doesn't mention tariffs, something many of the justices work quick to point out. Here are the Chief Justice and Justice Katanji Brown Jackson.

Speaker 5

But when I read the statute, it is telling the president exactly what he can do investigate, block during the pendency of an investigation, regulate, direct, and compel, mullify, void, prevent or prohibit. And I guess what is a little concerning to me is that your argument suggests that we should see the word imposed, the phrase impose tariffs in that se series of things that the president could do. We don't see that word.

Speaker 4

Well, but the exercise of the power is to impose tariffs, right, and the statute doesn't use the word tariffs.

Speaker 2

And Justice Neil gorse At, a Trump appointee, expressed alarm at giving seemingly limitless power to presidents.

Speaker 6

So Congress is a practical matter. Can't get this power back once it's handed it over to the President's a one way ratchet towards the gradual but continual accretion of power in the executive branch and away from the people's elected representative.

Speaker 2

My guest is constitutional law expert Michael Dorff, a professor at Cornell Law School. Mike, give me your broad take on the oral arguments.

Speaker 7

It was difficult to handicap.

Speaker 1

It's clear to me that the three Democratic appointees are going to vote to a firm and rule for the plaintiffs. Justice Thomas and almost certainly Justice Alito are going to

rule for the government. I think Justice Kavanaugh pretty strongly leans towards the government, and then the Chief Justice and Justices Gorosach and Barrett are harder to handicap because Gorisiach and Barrett especially asked difficult questions of each side, and I kind of have a theory of what each one of them is thinking, but it's it's very difficult to say. So I come out of this really quite uncertain as to what they're going to do.

Speaker 2

So a good deal of the argument consisted of an analysis of the text of AIPA. Several justices quizzed the Solicitor General on the text not mentioning tariffs. How do you think the Solicitor General handled that?

Speaker 1

Yeah, I thought He's stuck with his core argument, which has a number of moving pieces. The first is that the term regulate importation can include tariffs just as a matter of ordinary language.

Speaker 7

That's certainly true.

Speaker 1

He also relied on historical understandings dating back to the founding for some reason to think that that's how the word was understood. And he has a couple of modern cases. He's got the Nixon president under the Trading with the

Enemy Act, and he's got another related case. I thought he had the hardest time dealing with what is really the plaintiff's best argument, and that is that when Congress has wanted to give the president tariff authority, it has said so expressly in lots of other statutes, and so the omission in this statute does seem to be rather glaring. So I thought he did a perfectly fine job basically rehashing what was in his brief.

Speaker 2

It seemed to me like some of the justices weren't satisfied with Sour's answers, particularly Justice Amy Coney Barrett. You know, she kept pressing him and just a soda mayor said answer the question.

Speaker 7

Yeah.

Speaker 1

So that was an important exchange, and I thought that Justice Barrett wasn't being quite fair to his argument, right, which was he said not only that did Nixon impose this, but a Court of Appeals found that Nixon had the authority. It's true of the Supreme Court denied assert and then Justice Barrett said, well, it's just an intermediate court of appeals. Well, that's true, But his argument is not that that ruling

is binding on the Supreme Court. His argument is that when Congress copied the language from the Trading with the Enemy Act into the International Economic Emergency's Powers Act, it was aware that President Nixon had used this for tariff authority and that that had been affirmed, and so we should attribute to Congress an intention to carry over the meaning that had recently been on display.

Speaker 7

That's not a bad argument.

Speaker 1

My own view is that it should fail because even a good textualist care about how Congress has used the terms elsewhere, but just sort of standing on its own. I thought his reliance on the Nixon president was pretty sensible.

Speaker 2

Justice Neil Gorsuch question the Solicitor General for something like ten minutes. Some of the questioning seemed a little bit hostile. He questioned him about the extent of the authority Trump is claiming, saying, well, then can Congress just say we're tired of legislating or hand it off even the power to declare war to the president. I mean, he seemed more aggressive than most of the other justices in questioning the Solicitor General.

Speaker 1

Yeah, I think that's right, and I think it lines up with Justice Garsuch's priors, which are very suspicious of broad delegations to the executive branch. He actually got a concession out of the Solicitor General. The SG sort of began by saying that neither the non delegation.

Speaker 7

Doctrine nor the Major.

Speaker 1

Questions doctrine applies with respect to the president's foreign affairs.

Speaker 7

Power, and pressing him.

Speaker 1

Justice Grocich got him to back off of that when he said, well, what if Congress just gave the president all of its power to regulate foreign commerce, you know, do whatever you want. We're sick of it all of its power more generally, you know, could he do anything at all in international affairs? And soer basically said, well, no, that would be different in so of coursious.

Speaker 7

How could it be different? You said that it doesn't apply at all in.

Speaker 1

Foreign affairs, And so then I thought Justice Garsuch did a nice job of saying, So, what you're saying is it applies more deferentially. But the intelligible principal test, which Justice Gorsuch doesn't like, is already very deferential. You're going to say it's even more deferential than that. So based on that exchange, I initially had Justice Garsage in the sort of plaintiff's column, but then on the other side

he was pressing Neil Kattil very hard on us. The text, right, So if you just look at the text, it does seem to encompass tariff authority. And there in the same way that I thought it was interesting that the SG backed off a little bit. I thought Katyo would have been better served if he had backed off a little bit and just simply said, yeah, you're right, if you look at the text in isolation, it does encompass this power.

But that's never how the discourt looks at datutory text, and it shouldn't in this case.

Speaker 2

Well, let me ask you this, as some of the justices porning out Congress knew how to write the word tariff. They wanted tariffs to be included in all these other powers, why not just put it there?

Speaker 7

Right?

Speaker 1

I think that is sort of the core common sense argument that the plaintiffs have, and it's a very good one,

and I thought it was going to prevail. That. What leads me to be a little less certain about that is the turn the argument took near the end of Katyo's presentation, when a combination of Justice Barrett and some of her colleagues pressed on what she said she wasn't calling but really was calling a greater includes the lesser power, right, which is, well, look, Congress clearly gave the president the power to ban all trade with any and all foreign countries,

because that's the plain meaning of some of the terms that are in the statute, and that's an enormous delegation. If Congress did that, why would Congress want to deny to the president the much lesser power to just say, well, you can have trade with us, but it's going to be subject to some tariff and that Therefore, maybe Congress didn't mean to exclude tariffs. Maybe they just thought it

was encompassed within the term regulate. So that's what gave me some pause, because that's also not a crazy argument. I do think, and I'm going to put this on my blog tomorrow, that the way out of that, at least for Justice Gorsuch, may be that in so far as this law seems to give the president the power to declare an emergency whenever he wants and then to ban all foreign trade or to do some subset of it.

That's a violation of the non delegation doctrine. And therefore you can't read the statute that broadly, and we can deal with a ban on all trade when that comes up, or you can say the president's declaration of an emergency is subject to some substantial review by the Supreme Court. There was a point earlier here in the argument when Justice Kagan was saying, we're going to review only very deferentially, the president's decision that there's an emergency.

Speaker 7

But you know, I mean, let's be frank here, there is no emergency. At one point sour said, well, you know, there's an existential threat, and it's not clear what he was talking about. Then he said, well, fentanyl is an existential threat. Well, even if fentyl is an existential threat, and of course it is to people who are at risk of overdosing on.

Speaker 1

It, there's no indication whatsoever that that was a legitimate justification for the tariffs on Canada, which is one of the reasons why it was invoked. You know, we get less than one percent of fentanyl from Canada, and you know Soalar also pointed to the fact that when President Trump was recently in Asia, he in Jijenping agreed to some reduction in Chinese precursor chemicals coming over for feednyl.

Speaker 7

You know, that's not.

Speaker 1

A trade agreement, it was an agreement to discuss. So there's all of this stuff in the background that seems kind of detached from reality, and that the background as well the president's you know, conducting foreign policy. The president is you know, just imposing tariff's willy nilly because he doesn't like, you know, some commercial that was run by the government of Ontario, because he doesn't like that Brazil is enforcing the law against Bolsonaro, whom he sees as

a kindred spirit. The notion that this president is exercising this power in any way that remotely relates to legitimate emergencies is just fanciful. And to me, the question is like, will that break through at all or are they going to do what they did in the immunity case and pretend that Trump is a normal president.

Speaker 2

Coming up next, I'll continue this conversation with Cornell Law professor Michael, or what about the major questions doctrine that the Court used to block many of President Joe Biden's initiatives. This is bloomberg. It's the biggest legal test yet of President Donald Trump's economic agenda, and a majority of Supreme Court justices signaled some skepticism today about his power to

unilaterally impose sweeping tariffs. Trump says his tariffs are authorized under the nineteen seventy seven International Emergency Economic Powers Act, which gives him broad authority to set and change import duties in an emergency. But Justice Elena Kagan questioned the Solicitor General John Sower about the declared emergencies, referring to the many cases the administration has brought to the Court on an emergency basis since Trump took office.

Speaker 5

And you know, we've had cases recently which deals with the president's emergency powers. And it turns out we're in emergencies everything all the time, about half the world. Well, this particular emergency is particularly existential, as Executive Order fourteen two five seven says, And of course no one disputes the existential nature of the federal crisis.

Speaker 2

I've been talking to Cornell Law School Professor Michael Darf, So, let's talk about the Major Questions doctrine, which came up over and over, and at one point Justice Gorsuch told Neil Katiau, the attorney for the small businesses, I don't think you can win without it. And Chief Justice John Roberts indicated that he saw the case as being governed by the Major Questions doctrine.

Speaker 7

Yeah.

Speaker 1

So the Major Questions doctrine originates in some cases a couple of decades ago, but it really took its current shape in a case from a few years ago called West Virginia against EPA. And the basic idea is that if you've got a statute that the federal executive brand or the president claims gives them the power to regulate some gigantic area, like a big portion of the economy or which is clearly going on here, then the president needs to point to specific authorization for what he's doing

in the statute. It's a way of reading the statute to say, we're not going to presume that Congress delegated enormous power to the president unless Congress did so clearly.

Speaker 7

So, in lawyers.

Speaker 1

Speak, the Major Questions doctrine can be understood as a kind of clear statement rule.

Speaker 7

So that's the background.

Speaker 1

Now there's a there's a kind of technical debate between different justices about what exactly the major questions doctrine is. So Justice Barrett has said that she thinks it is simply an interpretive canon. That is to say, it's out there. It's a way of us figuring out what Congress actually intended in this statute, because you know, Congress statutes where they have, you know, meant to give all this power

without saying explicitly. So it relates back to something Justice Scalia said in a much earlier case, which is, Congress doesn't hide elephants in mouseholes, right, just a basic idea of how you get at what Congress intended. That's one view of the major questions doctrine. Another view of the Major Questions doctrine is that it is a kind of subconstitutional way of implementing the non delegation doctrine, the notion that Congress can't give away its lawmaking power. It's got

to provide an intelligible principle. And so if there's some very you know, monumental exercise of power, we're not going to see Congress as having given that to the president without explicit language, because the explicit language is what will provide the intelligible principle. In the absence of that, we will just assume the power hasn't been delegated. That's what I mean by saying that it's related to this constitutional

So there's that debate. At one point, Neil Katyel seemed to lean into the Barrett position to say, well, it's just a matter of figuring out what Congress was up to. Doesn't really matter for this case that he can he can win regardless of what the nature of the Major Questions doctrine is. When just as Gorsuch said to him, I don't think you can win about the Major Questions doctrine.

I think what he was getting at was that the statute, just taken at face value, uses the word regulate, which historically has, at least in some contexts, included the power to impose tariffs. I should say I think Justice Gorsach is wrong about that. I mean, he might be right as a prediction that, but I think he's wrong in that. I think Katyl has a good argument that we don't need the Major Questions doctrine, but we also don't. We

never read a statute literally and in isolation. That is the text of the statute read against the backdrop of all these other statutes Congress has enacted where it use the word tariff or duty or custom or something like that, and didn't use it here, tells us about the literal meaning of the language here, So that I think there is a textualist answer that doesn't rely on the Major Questions doctrine that under which the plaintiffs win.

Speaker 7

But you know, I'm just making an assessment.

Speaker 1

If Justice Scurtius thinks that they can't win without the Major Questions doctrine, then that suggests that if Cato is going to win, it's going to be with the Major Questions doctrine.

Speaker 2

So, I mean, the conservative justices use the Major Questions doctrine to block President Biden in his initiatives on student loan forgiveness, coronavirus vaccine mandates, and climate change. How would they reconcile it if they allow President Trump to exercise sweeping emergency powers with these global tariffs.

Speaker 7

Right, Well, so if they want.

Speaker 2

To reconcile it, I guess right.

Speaker 1

So the short answer is I don't think they can in a way that is persuasive to me. But you know, before the Supreme Court overruled the doctrine of Chevron deference to administrative agencies in the Lower Bright case a year and a half ago. Even then, there was a lot of scholarship showing, I think, persuasively that the real meaning of the Chevron defference doctrine was the Court deferred to decisions it liked and didn't defer to decisions it didn't.

Speaker 7

Like, and that had a political balance to it.

Speaker 1

I think it would be child's play to write an opinion here that says, of course, we have the major questions doctrine, and what that requires is a clear delegation. Here there is a clear delegation because regulate historically has included the power to have tariffs and so forth. Right, that is the threshold for applying the Major Questions doctrine is a finding that Congress didn't clearly delegate. So they would just say, well, Congress here in the text clearly

did delegate. I'm not saying that would be persuasive, but I think that's that's what they would do.

Speaker 2

And where did the you mentioned the non delegation doctrine? Will that play in here.

Speaker 1

Oh sure, So, I mean that's that was the line of questioning that Neil that Justice Courses was pursuing against the Solicitor General, which is, he wanted him to get this SG to admit and successfully got him to admit that under the government's theory of the case, Congress could give to the president the authority to regulate the entire economy if if there's any non delegation doctrine at all, Right, there's no intelligible principle of Congress saying hey, if you

think it's a good idea, do whatever you want with respect to foreign trade. And that's why sour the SG eventually backed off of this position that there's no non delegation doctrine in this area.

Speaker 2

So you wouldn't be surprised then, if the court ends up upholding Trump's ability to impose these tariffs undra AIPA.

Speaker 7

I wouldn't be surprised with the result either way.

Speaker 1

Again, as I said, I think that the given my priors, I thought that the result of the argument is that the plaintiffs should win. That's what I thought before the argument, and I was heartened by the questions that at least three of the conservative justices asked of the Solicitor General. But this turn that the argument took near the end suggests to me that it's certainly not a sure thing.

Speaker 2

Anything else that struck you, Mike one thing.

Speaker 1

So in my preview of the case on my blog on Monday, I pointed to some remarkable statements very early in the government's opening brief, quoting President Trump about how magnificent these tariffs are. And I thought that was potentially counterproductive because you know, it included, you know, typical Trumpian rhetoric about how our country is, you know, going to hell in a handbasket, and you know, thanks to me and my beautiful tariffs, everything's working out. But if you

get rid of this, it'll be, you know, armageddon. I'm not really exaggerating much. That's not using literal language, and you know, it's just it was over the top rhetoric, and it was also economically illiterate, right, the claim that this is doing wondrous for the economy. And I noticed during the course of the argument that Sour would occasionally give versions of that not quite as over the top as in the.

Speaker 7

Brief, and he seemed to get no reaction at all.

Speaker 1

From any of the justices except for Justice Kavanaugh, who did seem to give some credit to Trump forgetting various policies adopted In virtuous He pointed to the India tariffs as serving you know, the foreign policy goal of getting Russia to change its stand in the war against Ukraine, and you know the effect on the fentnal precursors with China.

But for the most part, it struck me that the reality of what's going on, which is, you know, this mad king randomly imposing tariffs and then taking them off because of.

Speaker 7

His whims, didn't really penetrate.

Speaker 1

And I think that's probably good for the government's case, because the more that you look at what's really going on here, the less it looks like any kind of sensible policy.

Speaker 2

We'll see what the decision is. Thanks so much, Mike. That's Professor Michael Dorf of Cornell Law School. Coming up next on the Bloomberg Lawn Show, we'll talk to a trade lawyer about the oral arguments. The US Supreme Court appeared skeptical of President Donald Trump sweeping global tariffs, as key Justice Is suggested he'd overstepped his authority with his signature economic policy. My guest is Timothy Bright Bell, partner and coach of the International Trade practice at Wiley Rhein.

Tim tell us what's at stake in this case.

Speaker 8

This case involves the centerpiece of President Trump's economic agenda. This argument is the biggest trade case the Supreme Court has ever heard, and it goes straight to the key constitutional issue of who has the power to impose tariffs,

the US Congress or the president. President Trump says the law that he used, the International Emergency Economic Powers Act, gives him the power to regulate imports, and that that includes the power to impose tariffs, including fentanyl tariffs on China, Canada, and Mexico, and reciprocal economic tariffs on almost all countries.

Whereas the plaintiffs in this case say that Congress has that power and cannot delegate that power, and that AIPA, which has never before been used to impose tariffs, does not include that power and authority. So that is what is at stake. And of course the tariffs under AEPA have led to collection of hundreds of billions of dollars of tariffs already, so it's very high economic stakes for the companies and industries that have paid those tariffs as well.

Speaker 2

Let's talk about some of the analysis during the oral arguments, and you know, there's always a textual analysis these days, and some of the justice's concerns that the text of the statute doesn't mention the word tariffs at all exactly.

Speaker 8

The argument focused quite heavily on this law used by President Trump AEPA and whether that law, which gives the president the power to regulate imports, also includes the power to impose tariffs. That really dominated most of the hearing, and the justices asked very difficult questions on both sides.

The administration said and the Solicitor General and the argument said that the ability to impose tariffs is a core application of the ability to regulate imports in a historical context, said that, of course, the power to regulate imports would be read to include tariffs because tariffs have been used

throughout our country's history. On the other hand, several justices were skeptical of that, and the plaintiffs in this case said that when the delegation includes tariff authority, there is always specific language to that effect, and that there are always conditions and tests and agency decisions that have to go into that tariff power. So there was a good amount of the argument focused on those issues, and again, whether the power to regulate imports includes the power to impose tariffs, And.

Speaker 2

What did you think of a Solicitor General arguing that the Trading with the Enemy Act of nineteen seventeen gives the president authority and also to a nineteen seventy six tariff by President Richard Nixon that the Supreme Court upheld.

Speaker 8

Well, I think both sides had responses there. So the Solicitor General argued, yes, that the Trading with the Enemy Act was used to impose tariffs in a prior situation by President Nixon, and that there's no reason to think

that anything had changed when AEPA had passed. On the other hand, I think the plaintiffs had a response to that in terms of the fact again that when tariffs are involved, there are always conditions on their use, there are always specific procedures, and also the fact that the reality is that no other president in fifty years has

used AIPA to impose tariffs. So a lot of discussion on that, I think, tough questions from many of the justices, and that is one of the shoes that's joined and will have to be decided.

Speaker 2

What role does the Major Questions doctrine play here? It's was mentioned several times, and the Chief Justice seemed to think it was important Justice score such at one point said to Neil Katyal, I think you're going to need the Major Questions doctrine.

Speaker 8

Yes. So the question here is does the Major Questions Doctrine require a clear statement in AIPA that it includes the power to impose tariffs? And this Court has not hesitated to start using that doctrine more broadly, but I think you're right that the justices had some concerns about pursuing it in this venue. And again the question comes to is the power to tariff implied in the power

to regulate imports or if it's not. Was this a question that Congress was required to state clearly that tariffs were a part of what was envisioned by the new law.

Speaker 2

Do you think that how the conservative justices used the Major Questions doctrine to stop several of Biden's initiatives? Do you think that that is something that they'll have to explain if they allow Trump's tariffs to go through.

Speaker 8

I think it's an interesting question whether they'll go there, or whether they will just focus on the language of AIBA and this issue of whether the power to regulate imports includes the power of tariff and I think several

justices went down that road. I don't think just because these doctrines have been used in other cases, such as the Biden student bound forgiveness case, doesn't necessarily mean that they will have to address it in this opinion if they have other bases for finding that the tariffs were legal or improper in any way.

Speaker 2

What was your take on Justice Core, such as questioning of the Solicitor General early in the arguments where he expressed concerns about the extent of presidential power that Trump is claiming and where it could lead.

Speaker 8

Yes, I thought that was very interesting. Justice cours such as you mentioned, ask the hypothetical of if Congress can delegate the tariff authority, what would prohibit Congress from delegating everything, including the power to declare war, which is clearly given in the Constitution to Congress and Justice. Corsich also called the government's reading of its tariff power as a one way ratchet and an accretion of power to the president,

and one that Congress could not recover. Without a supermajority or a veto proof majority, and so that was a very interesting discussion. I'm certainly raising some concerns about the limits, if any, on the authority that the government was claiming.

Speaker 2

And where does the non delegation doctrine that Gorsuch was talking about fit in.

Speaker 8

Well, again, Congress, under the non delegation doctrine, Congress cannot transfer to another branch hours that are strictly and exclusively legislative. But it may confer substantial discretion on executive agencies to implement and enforce the laws. So that's the doctrine in general, and the courts have interpreted that to say that a delegation of this discretion is constitutional as long as Congress lays down an intelligible principle to which the person or

the agency is directed to conform. And that intelligible principle standard is a fairly low bar to clear. It's only been found lacking in a couple of statutes. So I don't think non delegation plays as much of a role as the major questions doctrine, at least from how the argument, the oral argument played out.

Speaker 2

You know, it just seemed to me as if the Trump administration is having to bend over backwards and torture the language to try to get to the result that they want, whereas a plane reading wouldn't include tariffs.

Speaker 8

Well, I think that really is the key issue. Again, the Solicitor General said, of course it would be understood, and implied that the power to regulate imports includes the power to impose tariffs, and in fact, adjusting imports is another definition of regulating, and also the fact that since the founding, historically tariffs have been a primary way to

regulate imports. So the Solicitor General was arguing it was a natural reading of the law, But the justices were skeptical and asked tough questions and noted that in every other law where tariffs are involved, the power is made very explicitly clear and it comes with conditions.

Speaker 2

Where do you think the justices are going to come out here.

Speaker 8

Well, I'm not in the business of making predictions. Generally, I think my own personal view is that the court's three Democratic justices probably vote against these tariffs. And then the question is whether some of the majority of the court have similar concerns about the president's use of this law. And I do think that it's still a very close decision.

It could go either way based on the questioning. My own view, I thought Chief Justice Roberts and Justice Barrett and Justice Gorsich were perhaps more skeptical of the president's tariff authority under a than the other justices. But again, that was just the oral argument. We don't really know

how it will come out. I guess the only other point I would make is, although it was discussed the oral argument, I have a hard time seeing this court making a split decision that some of President Trump's tariffs are acceptable but others are not. I mean, I suspect the courts would prefer not to be in the business

of making those judgment calls going forward. So I could be wrong, but I think the Court will either decide yes, the power to regulate imports includes the power to tariff, or no it does not, rather than some sort of split decision on the fentanyl tariffs versus the reciprocal tariffs.

Speaker 2

So if the court rules against Trump, what happens next, I mean, what happens to his tariffs?

Speaker 8

Well, two things would happen. First of all, there would likely be some sort of a refund process for importers that paid the tariffs during this time, and there is some precedent for that before that was discussed during the oral argument a situation where the court struck down a harbor maintenance tax and there was basically a process where companies could file claims for the amount of the tax that they paid. So Barretts was concerned that this could be a mess and could be very unwieldy, and so

there were some questions on that point. I guess the more important point is what will the president do going forward?

And I think it's clear that tariffs are still a cornerstone of this administration's economic policy, and if the Court says that the President cannot use AIPA, the president will likely pivot to one of several other trade tools that are available, and the Court mentioned many of these, including Section one twenty two, the section two thirty two, the National Security Law, which the administration has already made quite a bit of use of in this administration, Section three

zero one, and so forth. The limit on those laws is that they do require studies or actions by other agencies. So Section two thirty two requires a study and a report by the Commerce Department and consultation with Defense Department. In order to decide that imports of a certain product

like semiconductors or pharmaceuticals are a threat to national security. Similarly, Section three ZHO one, which was the law used to impose tariffs on China during the first Trump administration, also requires a detailed study by the US Trade representative with public inputs. So those tools, for the most part, cannot be used as quickly as AEPA was used by President.

Speaker 2

Trump or anything that was striking to you in the oral arguments.

Speaker 8

I thought it was interesting when Chief Justice Roberts said that it seemed to him that using this law to have the president's foreign affairs power trump the legislative power to regulate trade seems to neutralize Congress's power. So I

thought that was notable. Justice Barrett asked whether there was any other time in history with a phrase regulate imports was read to include the imposition of tear riffs, and she seemed not entirely convinced by the response from the Solicitor General, and then Justice Kavanaugh asked, you know, the historical perspective was the tariff power the kind of power understood by Congress to exist when the AEPA law was passed, and he also did ask why in prior economic emergencies

have other presidents not used IP but to invoke tariffs. So again, very tough questions on all sides, and still a very close case as to how this will ultimately come out.

Speaker 2

Thanks so much for joining me, Jim. That's Timothy Brightbill of Wilie Rhine, and that's it for this edition of The Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, and at www dot Bloomberg dot com, slash podcast Slash Law, and remember to tune into The Bloomberg Law Show every weeknight at ten pm Wall Street Time. I'm June Grosso and you're listening to Bloomberg

Speaker 1

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