[24-1287] Learning Resources, Inc. v. Trump

We will hear argument this morning in case twenty four twelve eighty seven, Learning Resources versus Trump, and the Consolidated Case. General Sauer? Mr. Chief Justice, and may it please the court. On april second, President Trump determined that our exploding trade deficits have 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 a strong, financially viable and respected country again.

Due to AIPA 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 and War against Regan, this court held that AIPA'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, AIPA's least blunt and most nimble tool, are virtually the only tool that Congress did not grant the President to deal with foreign emergency.

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 AIPA authorizes quotas and other tariff equivalents. The major questions doctrine does not apply here. AIPA confers major powers to address major problems on the President, who is perhaps the most major actor in the realm of foreign affairs.

In the nondelegation doctrine casts no doubt on AIPA 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 question.

Uh would you spend a few minutes uh on why exactly the major question uh doctrine doesn't apply to the President in this case? Uh yes, Justice Thomas. I I may make two or three points on that front.

First of all, uh uh 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 sort of foreign po 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 on pages six hundred fifty two and six hundred fifty three.

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. Uh you know, w what Dames and Moore described as the never ending tension between i the 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 uh to address that particular problem, that never ending tension, is the system where Congress confers broader magistrary powers in adva in advance and subjects them to ongoing political oversight, which is exactly what you see in AIPA.

So that's one reason. One reason is 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, uh article inherent Article II authority in this context. But just on that first reason, it seemed to depend a lot on the President's inherent Article two powers.

And I'm wondering what exactly which which powers you're speaking of there. Because tariffs one would naturally think is uh uh are are uh the power to impose taxes. the power to regulate foreign commerce, these are not things that are thought of as Article II powers. They are quintessential Article I powers. So what kind of Article two powers are you relying on?

when you gave the answer about major questions to Justice Thomas. I I w 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, Curtis Wright, the court has recognized the President has.

broad inherited authority to address foreign situations, foreign affairs, foreign policy, including foreign and rising 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. you know, inherent Article two powers and layered on top of that is a sweeping delegation of uh of authority from Congress. When you put those two things together

Congress is saying 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 is the power to regulate foreign commerce. These are regulatory tariffs.

They are not revenue raising tariffs. The fact that they'd raise revenue is only incidental. The tariffs would be most effective, so to speak, if no uh no no person ever paid them. If they did achieve their goals, if they're not a good idea, Council, you you have already mentioned Dames and Moore uh three

three times, uh which surprises me a little because the court in Dames and Moore went out of its way to say that it was issuing a very narrow decision that pretty much expected to apply only in this case. Just a few Quotes It said decisions in this area have been rare, episodic, and afford little precedential value for subsequent cases.

Again, we lay down no general guidelines covering other situations not involved here and confine the opinion only to the very questions necessary to decision of this case. and it ended the opinion. It said finally we reemphasized the narrowness of our decision. Now uh This uh at issue in Dames and Moore was a different provision of IEPA, not at issue here, um and certainly did not concern tariffs.

So I don't quite understand how you can get as much out of Dames as Dames and Moore as you're trying to get. Uh maybe I could put it this way, you don't dispute that Davis Moore is, uh, a narrow opinion. Uh however it it it it addressed certain principles that we think are equally applicable here. For example, the interpretive principle.

Dames and 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 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 i in the the language in AIPA, the way the court thought about it is we are looking at this through the lens of Justice Jackson's opinion in Youngstown and the court held specifically that these verbs place the President in Youngstown's own one.

The court held that that the he is subject subject to the widest latitude of judicial interpretation, that he received the strongest presumption of validity. Um it's not an article. It's a congressional power, not a presidential power to tax. And you want to say tariffs are not taxes, but that's exactly what they are. They're generating money from American citizens' revenue. And you say it's incidental to the regulatory purpose.

But I don't see how a quota is equivalent to revenue raising. A quota sets a limit to what you can import in, but it doesn't generate revenue. I I I I don't understand this argument that it's equivalent, or that foreign powers or even an emergency can do away with the major questions doctrine. Didn't we in the Biden case recently say an emergency can't make clear what's ambiguous?

As to that point, I believe uh the Court has never applied the major questions doctrine in the foreign policy contract. We have never applied it to foreign affairs, but this is a tariff. This is a tariff. It is a it is a if I may, it is a foreign facing regulation of foreign commerce. That's regulatory facts. So Biden could have declared a national emergency and global warming and then gotten his student forgiveness.

To not be a major questions doctrine? I don't think he could have gotten student loan forgiveness. Why? we need all of these things to uh to face uh to tax fossil fuel or to do something else. That's all Biden would have had to do with any of his programs. 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 IEPA naturally evokes. Could you tell me why it is that when Congress intended to permit a president to regulate by imposing tariffs. It's always used tariff and regulate. I have about sixteen laws in the past when Congress intended regulate to mean taxing, that it use taxes simultaneously.

But it didn't hear respectfully, this court came to the opposite conclusion, if I may, in Algonquin, where the phrase was not included in the case. Unlike here.

it was um uh paired with questions about decreasing tariffs and increasing tariffs. Um so it's a very different statute than the one at But the governing language a admittedly the references to duties in section two hundred two A, two hundred and thirty two C does not refer to them and the Court didn't refer to two hundred thirty two A at all or the phrases duties or terrorists analysis, what it held was

The phrase adjust imports, which includes a verb that is narrower, but actually incompetence it was in context of activities that had to do with raising and lowering duties. Here the verbs that a company regulates have nothing to do with raising revenues in the form of taxes. And Council Algonquin wasn't a textualist opinion. Do you uh agree with that? In other words, the analysis that the Court was using there was really keyed to the legislative history.

of that statute. And w it wasn't as though we were doing an interpretation of the word adjust. I I disagree with that. I think if 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 i i it 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 Explosive. Right.

Congress is not bound to use that particular formulation when it wants it confer this power. Let me ask you about um the premise of your argument, which you you sort of started at the beginning saying that one would expect for Congress to give the President a broad leeway in this kind of foreign affairs context.

Um and I guess I'm wondering whether you also don't have to contend with the actual purpose of AIPA uh in making this argument, because as I understand it, that the AIPA was designed and and intended to limit uh pregi presidential authority. that uh Congress was concerned about how presidents had been uh using the authority under the predec predecessor statute TWIA And uh it's pretty clear that

Congress was trying to constrain the emergency powers of the President in IEPA. So it seems a little inconsistent. to say that we have to interpret a statute that was designed to constrain presidential authority, consistent with an understanding that Congress wanted the President to have essentially unlimited authority.

I disagree with that because what Congress actually did as part do you disagree with, I'm sorry. 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. But how how can you disagree with that? I mean that the the history is what it is. Because they made a series of changes to AIPA that relate to the triggering condition, so to speak. and the procedures that apply, but they did not change the language and I think that's the thing. Right, but what was the what was the intent of of Congress?

in changing the language t wasn't it to constrain presidential authority in this area? To constrain it in the triggering conditions and the procedures that apply in this are the trigger the triggering conditions and procedures that apply are a means.

to constrain. That is how they went around about constraining. But my point is enacted this legislation with the intent of preventing the President from having unlimited powers in this area and you're asking us to now interpret that statute, consistent with an understanding that Congress wanted to allow the President

pretty much whatever he wanted in this area. Congress took the language from Thuya and enacted the very same language and most importantly here the very same phrase regulate importation in AIPA.

And therefore, the natural inference is Congress did not intend to change the scope of authority, the powers, the tools the President can exercise the president. Did any President under TUIA use that language to impose tariffs? Well yes, President Nixon's nineteen seventy one take away. That wasn't a tariff. It was a licensing agreement during wartime. It was a sp specific thing. I am referring to President Nixon's nineteen seventy one. Yes, I thought you meant Lincoln.

Under this very first time, can I back you up just a second? I'm sorry. You're talking so quickly. Um President Nixon did not rely on TWIA initially to impose the tariffs. Is that correct? I understood that was just a litigating position that he took once it was challenged. That was not his initial. I wouldn't put it that way because he uh has a broad invocation, you know, I'm invoking all range of statutes, something like that, in Proclamation forty seventy four.

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. What's the significance of the Nixon example and precedent here? Because I think figuring that out

real important to deciding this case correctly. So 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 terrorist imposing regulatory tariffs at the border, forward facing tariffs at the border border, and we say that's a core application of

uh i uh uh uh of the the phrase regulate importation had been interpreted two years before Congress re enacted that language uh in IEPA had been interpreted to carry with it the authority to uh authority to impose tariffs. So this court said in Algonquin, for example, with respect to President. scope of the Nixon tariffs. He imposed a ten percent tariff uh kind of across the board to all our major trading partners to address a balance of payments deficit.

where uh he was trying to bring all the major industrial nations uh uh uh to the to to the to the negotiating table, which he successfully did, but for the imposition of the tariffs, and they negotiated the Smithsonian Agreement in about five months, after which he lifted the tariffs.

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 C C P A, its Federal Circuit's predecessor, that had exclusive jurisdiction over that question. To include the power to terrorist. And then two years later Congress took that same phrase and reenacted it.

in IEPA after carefully studying the problem of presidential emergency powers and being deeply concerned about excessive or abusive uh exercise of that power. So that whole

So uh that whole sort of process gives sort of strong uh sort of confirmation 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 is 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 that goes back to gibbons against Ogden and Justice Torrey's treatise and runs all the way through cases like McGoldrick and Board of Trustees as well. Can you point to any other place in the code or any other time in history where that Well, I think that's a good thing

That was held in Twia. So obviously and that's the other one. But you just told Justice Kavanaugh that wasn't your lead argument, that your lead argument was this long history of the phrase regulate importation being understood. to include tariff authorities. So my question is Has there ever been another instance in which a statute has conferred used

I mean obviously other statutory examples are just imports. The cases we rely on are cases where, for example, in Gibbons is Ogden and Justice Sorry still. talked about it as conferring tariff authority. I understood you to be citing McGoldrick and Gibbons in those cases just to show that it's possible to say that regulating commerce includes

I think our argument goes a bit further than that as interpretive matter, because if you look at that history, the history of delegates are Could you just answer the justices question? Uh can you identify any statute that used that phrase to confer terrorism? Yeah, the only two statutes I can identify now are TWIA, as interpreted in Yoshida, and then closely related, not regulated importation, but adjust imports.

in section uh two hundred and thirty two in the Well I think adjust imports is differently. So the answer is the contested application in TWIA and then now in AIPA. And then of course I mean those are there's a sort of direct line there. Yeah, I I understand that.

More fundamentally, we rely on the historical socials to show that there is this long historical pedigree of broad 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. Uh uh going back to Gibbons against Ogden, all the way through McGoldrick and Board of Trustees, where th this court and uh 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 you one other question about the the plain text, General Sauer. So you've referred to the other verbs in AIPA as capacious. Would you really describe them as capacious? Because to me things like nullify and void have definite meanings. I agree with you that regulate is a broader term, but those words I think are powerful. They give they pack a punch.

But I wouldn't describe them as capacious in the sense that they have a wide range of meaning. So can you describe what you mean by capacious? 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 possible, except Congress did take out a whole bunch of verbs. Um it took out confiscate, vest, hold, use, administer, liquidate, sell, which were in the prior statute. And and and

Crucially, what it doesn't have here is anything that refers to raising revenue. So it has a lot of verbs, it has a lot of actions that can be taken under this statute. It just doesn't have the one you want. Well I would say the re 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 Yes, but if I can just stop you there, regulatory power. I mean, yes, it says regulate, but i uh I would broaden out Justice Barrett's question. Is there any place that you can find in the entire code where regulate Used just as regulate. includes taxing power?

We don't assert that. We say it includes tariffing power when it's combined with importation and that's just the most natural understanding of regulate even even though in fact we can regulate through taxes. But when the code uses regulate, we don't typically understand it to refer to duties or taxes or tariffs or anything of the kind. And then if you look at the flip side of this and you look at all the tariff statutes that Congress has passed.

I m I mean they use language about revenue raising, tariffs and duties and taxes. Um all the language that does not appear in the statute you rely on. We start with a sort of 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 discuss with this sort of like you know as everyone knows attitude, regulate importation the most one of the most natural applications of that is the power to tariff. So when Congress confers the power to regulate import

It is naturally conferring the power to tariff which it has delegated to the executive branch again and again and again going to the first time. I am sorry, Council it doesn't say regulate tariffs, it says regulate importations and exportations. You agree that they can't put tariffs taxes on exportations constitutionally. All right? So why should we think that it is natural then to think

that regulate importation includes taxing importations. Because that is in the conjunctive importations and exportations, if they can't do it with respect to import exportations Why are we permitting them to do it with respect to importation? Because as this court has recognized going back to Gibbons against Ogden and going through McGoldric and Board of Trustees, the phrase when you're regulating imports, tariffing is the core application of that.

Uh so in other words, if you if you're saying go regulate trading insecurities, why is it that Congress has always used regulate and tax together in the code? Are you telling us that with respect to its use of regulate in other statutes the taxing reference is superfluous? They didn't need to do that?

I'm not sure w 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 nineteen seventeen, where the phrase regulate importation is evoking an inherent power to tariff. That would became established in the nineteenth century with in cases like you know Hamilton against Dillon and so forth, and that history is I think set forth in Professor Bomzai's Mika's brief.

Some time ago you uh dismissed the applicability of the major questions doctrine and I I w want you to explain that a little bit more. I mean it seems that it might be directly applicable. You have a claimed source, an IEPA, that had never before been used to justify tariffs. Uh n no one has argued that it does um uh until this this particular case. Congress uses tariffs and other uh provisions, but

but but not here. And yet um and correct me on this if I'm not right about it, the justification is being used for a power to uh impose tariffs on uh any product uh from any country uh for in any amount for any length of time. That seems like I'm not suggesting it's not there, but it does seem like that's major authority and the basis for the claim seems to be a misfit. So why doesn't it apply again? 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 if they look at the statute and say, we're not going to find a major power here. Well but the exercise of the power is to impose tariffs, right? And the statute does not use the word tariff. 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 power to regulate importation.

to uh and say but you can't impose regulatory tariffs. That'd be almost a a contradiction. And all the historical sources we cite in our brief 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 presence

Polk and Lincoln and President McKinley asserting the authority to impose tariffs in wartime that was then codified in TWIA and then recodified for peacetime in TwIA in nineteen thirty three and then carried over into Ahipa. 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 uh 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. Uh uh you referred to the fact that AIB has never been asserted to invoke tariffs, but of course the immediately predecessor statute

The the the pairs that President Nixon imposed on that were upheld under this very language. So this I would say this is and it was recodified in IPA two years later. So this is kind of the opposite of unheralded power.

It's also heralded because there's this long standing delegation, uh a tradition of deleg very broad delegations of the foreign commerce power going back to the founding, going back to the foreign commerce power but but I mean and I think this is a question for the other side as well. It's too too facing, yes, of course, tariffs uh in dealings with foreign powers, but the vehicle is imposition of taxes uh on on Americans, and that has always been the core power of Congress.

So to have the President's foreign affairs power trump that that Basic power uh for Congress uh seems to me to kind of at least Neutralized between the two powers, the executive power and the legislative power. First, the the notion that these are the taxes are all born by Americans and are not born by foreign

foreign producers who are whose goods are imported as is empirically that's not there's no basis for that in the record. It's it's actually a mixed. Well who pays the tariffs? Uh if a tariff is imposed on automobiles, um uh Who pays them? There's a th typically there'd be a regardless of what the importer of record is, there'd be a contract that would go along the sort of line of transfer that would allocate the the tariff and there'd be different d you know, 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 whole a wholly owned American subsidiary of a foreign corporation. So it gets allocated.

How much is borne by it? It has been suggested that the tariffs are responsible for a significant reduction in our deficit. I would say that's raising revenue domestically. There there certainly is an incidental and collateral effect to 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. I say 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 why not do what the statute permits? Bar importation of products altogether.

That would be the most effective way to do it. Uh uh the question is. What it doesn't say is the president can raise revenue What it says is c he can regulate importation and going back hundreds of years the way you regulate it does causing it. um subjecting some countries and not others to importation bans. There's a lot of verbs, but none of them include generating revenue. as a side effect or directly?

Yeah. 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, aha, 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, capel, 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 uh you know distractions of the general th the the verbs that are in the statute are actually doing something. I mean they're in the statute for a reason and as I understand it Congress actually explained to us in uh its Senate report and House report when it enacted the nineteen forty one amendments to TWIA.

What it was doing, it said that what we are doing is authorizing the President, the Senate report, quote, to control or freeze property transactions where a foreign interest is involved.

There's similar language about controlling, freezing control in the House report. So I I appreciate that generally you can look at these words and you can imagine that they mean certain things, but here we have evidence that Congress was actually trying to do a particular thing with respect to the authority that it was presenting to the President and that thing was not raising revenue.

I think that what con the powers that Congress was conferring on the President are best understood through the plain text of the statutes, which includes regulating bills. Well I know, but some of us care about the legislative history. And so the plain text of the statute has certain verbs in it. It also has regulate commerce, as you say. Um and W when I look at the legislative history, it appears as though Congress was trying to give the President the authority to quote

control or freeze property transactions where foreign interest is involved. And in the TWIA context that makes perfect sense because we're talking about a wartime dynamic. And and when what is happening is the President needs the authority to prevent trading with the enemy in the midst of a war. And that seems to be the focus of this statute.

So I guess I'm concerned about just sort of taking a particular word here and there and saying that the general view of it might include raising revenue when in fact it looks as though the aim of this was really to give the President a certain kind of authority.

to freeze the assets of the of the enemy. Let me say two things in response to that. 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 giv the response I was giving illustrating. Could the answer be that in Other places where Congress wants that particular form of regulation to be used, they say impose duties. They say we can tax. Mr President. Here they don't say that.

I'd say two things in response. That's the very argument that this court rejected in Algonquin. That the fact that these other specific statutes with you about if we disagree with you that Algonquin is a similar context. Do you have another statute or another circumstance?

And they said the natural way to do that is to tariff them. And and they it specifically said it makes no sense at all to o to authorize quotas, which it was conceded in that that statute did authorize, but not tariffs, because those are equivalent to the other. But it's not by any means necessary. Which kind of beefs up the adjust. And also and and this is actually I just don't know the answer to this question, so maybe you can help and maybe the other side can help as well.

Algonquin was very careful to always call it a license and a licensing fee and then the oral argument that came up too, the distinction between a tariff and a licensing fee. And I can understand how in some contexts it would be very difficult You would press on it and you would say, well, if this license fee is raising revenue, then it it actually functions as a tariff. But what is the significance of that? Because in IEPA it also says it refers uh particularly to license

It says you can license. And license would be a way of Giving permission, uh that's actually the la the language also used um in in the Civil War one and and What is it doing? Exactly. Yes, it does. Um it was a license, it was a license fee and that's a way to grant permission. that you wouldn't otherwise have to to trade and import and let it through. So tell me tell me what the distinction is between licenses and fees and if it matters.

It's hard for me to see one because what President Lincoln said is okay, we're gonna allow imports from hostile foreign powers, basically rebellious Confederate states, of cotton subject to a license. And but you gotta pay four cents a pound on cotton when you do it, that's the condition. And it that is is is so nearly equivalent to a tariff that says you can bring this goods into our country, but you gotta pay a admirum uh uh assessment on it.

Uh and so i i 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 seventeen oh one that talks about instruments

uh you know or other methods, uh instruments licenses are the same as a few years. But if that were true, why couldn't you just call this a license? And it it's also true that in the cotton example, the court said the exaction itself was not properly a tax, but a bonus required as a condition precedent. for engaging in the trade.

So it seems like it was a little squirrely about how it was proceeding. And if if if there really is no distinction, why couldn't you just call it a license here? 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 it equivalent.

Thank you, Council. Uh Justice Thomas, anything further? Um the uh other side is going to argue uh make an argue on delegation, I believe. Uh would you anticipate that and give us your understanding of of the delegation argument? Uh yes, Justice Thomas, I'd say a couple of things in response to that. First of all Uh uh this court has stated that the nondelegation doctrine does not apply with anything like the same force in the in as it does in the domestic context, in the foreign context.

And that again to cite Dames and Moore again. Dames and Moore cites Youngstown and Youngstown in footnote two of uh Chi J Justice Jackson's opinion, he goes into detail about this. He addresses Curtis Wright. He says there's a lot of broad dicta in Curtis Wright.

But the holding of Curtis right, the ratio dissidendi, is that the not the domestic nondelegation doctrine does not apply with the same force in the in the foreign context. And then he and he uses that phrase, does not apply. He says the strict limitations on delegation that apply.

you know, in the internal context do do not apply in the external context. And so we rely on that line of cases. And for the reasons I talked about earlier, we were talking 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 one. Um a few times you have alluded to the history as being important in interpreting.

uh the statute. Uh and also that this language comes from uh the uh Trading with the Enemies Act, and that has its own pedigree. Uh could you just sketch out this direct line that you were alluding to as a basis for interpreting uh the current emergency statute as you would like it interpreted.

Uh yes, Justice Thomason. Turning back to the response I was given to Justice Barrett earlier, there is I think it's very well set out in Professor Bomb's Ice Amica's brief, uh 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 is when the Trading with the Enemy Act was enacted in nineteen seventeen it was deliberately evoking that. And when it brings in the power to regulate importation, it's essentially

Codifying for the w uh an inherent power that the President's already recognized to have. And then in nineteen thirty three, when that power is 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 TWIA and then ultimately to AIPA in nineteen seventy seven 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 tariffs specifically and the power to regulate foreign commerce more generally. Going back to the time of the founder, which ties to your question about non delegation.

Justice Alito? Um the Court of uh the the C CPA said several said things in Yoshida that are helpful to your position, but it also said some other things. It said that future surcharches, quote, must of course comply with section one hundred twenty two of the Trade Act.

of nineteen seventy four and it said that the Trading with the Enemy Act did not authorize the President to quote fix rates of duty at will without regard to statutory rates prescribed by Congress. So Do you think that Congress to the extent Congress had that decision in mind and relied on it, do you think it also relied on those

It not in the same way because those statements are read into other provisions of TWIA that Congress did not enact in ANEPA. They may still be there in TWIA, but those are limitations that it wouldn't make sense.

to do. And I think the significance of Yoshita is at a higher level. Keep in mind that their principal position is no tariffs at all. Regulated 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 IEP was enacted that regulate importation had just very visibly and very prominently been upheld to include a ver a sweeping global tariff. Thank you.

Mr. Someor? Mm-hmm. I'd like to go back to Justice Barrett's question on the word license as used in AIPA. It's not used as a verb, it's used as a noun. by m the pre President may, under such regulations as he may prescribe, by means of instructions, licenses or otherwise then do what the verbs permit him to do. By license he can nullify, void, prevent or prohibit any acquisition, etc.

So license is not being used as a verb that through licensing he can raise revenue. He can only use licenses to accomplish the verbs. So I don't understand how we can treat licensing as equivalent to revenue raising. As used in AIPA, the license is only to accomplish what be permitted. In Hamilton against Dillon, licenses w once you had the license then you had to pay the fees. But that's the point I am making, which is that the only use of license here is a noun.

You can license to accomplish the powers that B gives the President. Let me be clear, we rely on the phrase regulate importation. We're not saying that. Exactly. You're not relying on licenses for that reason. No, I only cite that language, that introductory language about, you know, instruments, licenses, and otherwise as another layer of breadth in this particular case. Council, would you listen to my question? You're not relying on license.

Yes, for the reason I just said, because it is a noun, not the verb, you're relying on regulate, correct? Yes, rely on regulate importation. And despite the fact that no other president in the history of AI. has ever used has ever imported uh uh used tariffs as a power under our predecessor and we have all the limitations of that. Um number two, whenever Congress intends to to permit taxing and regulate, it uses the word tax and regulate in every other statute, correct?

I d I don't concede that. I mean two very visible examples again are TWIA and Section 122. Okay. Thank you.

Justice O'Meyor? No, she's uh Justice Sotomyor. She just finished Justice Cadin. I want to take you back to Justice Thomas's question about nondelegation. And if I understood your answer correctly, it was really similar to the answer that you started off with when you talked with Justice Thomas.

about the major questions doctrine, which is sort of everything's d different because the President has independent constitutional powers in this area. And so that Uh if if if one does not think that with respect to tariffs, if one thinks that a tariff is a is a taxing power, is a regulation of foreign commerce that is really um delegated by the Constitution to Congress.

Uh that argument does not does not uh sound so well. And in fact, when you look at J. W. Hampton, which gives rise to the nondelegation tests that we usually use, J. W. Hampton is a tariffs case. And the Court did not say, Oh, we need some special new principle here, some stricter rule because we're dealing with uh tariffs in which presidents are directly concerned as a matter of foreign relations.

It enunciated the test we use for all non delegations. So how does that fit with your theory? Uh eight years later in in Curtis Wright, the court held the nondelegation doctrine for domestic affairs does not apply with the same

But not with respect to tariffs, not with respect to quintessential taxing powers which are given by the Constitution to Congress. I think justices of this court have recognized in their opinions that one of the reasons that the nondelegation doctrine You know, uh that intelligible principle test hasn't packed as much punch as Justice Cavanas 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 Airlines, another case of the nineteen thirties, 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.

is that 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 a a profound consistency between The announcement of the intelligible principal test in J. W. Hampton and then the subsequent recognition by this court in Curtis Wright that

The non delegation doctrine doesn't apply to the same force in this context. In consumers research just last year we had a tax before us and the question was was this a delegation issue? It was of course a much smaller tax uh uh which um uh d dealt with many fewer taxpayers. Um notwithstanding that, we said if there's no ceiling on this tax, we sort of assumed that if there were no ceiling on this tax, it would raise a delegation problem.

And the uh most of the opinion was given over to showing that there in fact was a ceiling on the tax, not a quantitative one, but a qualitative one. Um but how does your argument fit with the idea that attacks with no ceiling, attacks that can be anything? that here the President once, there an agency once would raise a pretty deep um delegation problem.

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 IEPA, a statute that Congress carefully crafted to grant the president admittedly broad

powers to address foreign arising emergencies. It is outward facing to foreign affairs, where there is the broadest level of deference to the political branches as this Court has recognized in many cases. And it imposed not a floor or limit on the amount of a tariff that could be imposed, very naturally, because

For example, as this court said in loving, quoting you know Alexander Hamilton in the Federalist number twenty three, 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 grant very broad powers, but they're confined to a particular domain.

This domain is any property in which any foreign government or any uh national thereof has any interest. So the the the sort of discipline if one were to apply we we say you shouldn't, but if you were to apply the uh the the nondelegation doctrine the domestic facing non delegation doctrine in this context, there's a significant limitation there.

how or whether this is confined, because if you look at Title nineteen, which is loaded with tariffs and duties of various kinds, Um uh all of them have real constraints on them. They are, you know, you can't go over X percent or it can't last more than one year. And of course the way you interpret this statute, it has none of those constraints.

And the question arises why it is that any President ever would look to the tariffs in Title nineteen if um subsilentio, if you will, this statute gives the President the opportunity to blow past those limits. 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 seventeen oh one.

The President has to make a formal declaration of a national emergency which subjects him to particularly uh uh intensive oversight by Congress, repeat you know, natural lapsing, repeated review, reports I mean you yourself think that the declaration of emergency is unreviewable. And even if it's not unreviewable, it's of course the kind of determination that this court would grant considerable deference to the to the President on. So that doesn't seem like much of a constraint.

But it is had cases recently which deals with the President's emergency powers and it turns out we're in emergencies everything all the time, about like 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 fennel crisis, which you know we had a agreement last week to create progress on, which illustrates the effectiveness of the terrorist 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 I always granted the the president the the presumption that he's acting in good faith. There are real hurdles there, very significant. It's gotta be an unusual, extraordinary threat that arises in whole or substantial part outside the United States, so it's entirely foreign facing.

in to the national security economy or uh uh you know foreign policy of the United States. So there there are those. Then there's you know seventeen oh one B, which talks about how it can be used for this and and for no other purpose. Then there are limitations in Section seventy two oh two 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 quite a silo, so to speak. And then of course, overarching it all, there's 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 a EPA, it had its eyes open, as as the 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 is excessive versus the need to address unforeseeable.

General, just a few questions following up on the major questions discussions you have had. Um you say that uh we shouldn't be so concerned in the area of foreign affairs because of the President's inherent powers. That's the gist of it as I understand it, why we should disregard both major questions and nondelegation. So could Congress delegate to the President the power to regulate commerce with foreign nations as he sees fit?

We we don't uh we don't assert that here. That would be a much harder case now in seventeen ninety. Isn't that the logic of your of your view, though? I don't think so, because we are dealing with a statute that was a carefully crafted compromise. It does have all the limitations that I just

delegation off the books, more or less. And if that's true, what would what would prohibit Congress from just abdicating all responsibility to regulate foreign commerce, for that matter, declare war, to the President? We don't contend that he could do that. Why not? Well, because we're dealing with a statute again that has a whole setup. I'm not asking about the statute general, I'm not asking about the statute. I'm asking for your theory. of the constitution.

and why the major questions of non delegation What bite it would have in that case? I would say by then you had moved from the area where there's enormous deference to the President, actually both the political branches, where here there's inherent authority and Pile on top of that there's a broad delegation. All foreign affairs. So regulate commerce, duties and t and and tariffs and war. It's inherent authority all the way down, you say. Fine. Congress decides tomorrow.

Well, we're tired of this legislating business. We're just going to hand it all off to the President. What would stop Congress from doing that? That would be different than a situation where there are meets and bounds, so to speak. It would be a wholesale absolute meets and bounds when the foreign affairs that's what I'm struggling with. You you'd have to have some test. If it isn't the intelligible principle test or something more with more

You're saying it's something less. Well what is that less? 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 to approach it is a very, very deferential application of the intelligible pr intelligible principle test. That that sort of wholesale application of the admitting that there is some nondelegation principle at play here.

And therefore major questions as well. It's true. Very limited. Very, very deferential and limited is what and again the the the phrase that Justice Jackson uses it just does not apply. I know, but that's where you started off, and now you have retreated from that, as I understand it.

Uh uh well I think we would uh as our frontline position is certain the stronger position, but if the court doesn't accept it, then if there is a highly defined. Can you give me a reason to accept it though? That's what I'm struggling and waiting for. What's the reason to accept the notion that Congress can hand off the power to declare war to the President?

Well we don't contend that. Again, that would be Well you you do. You say it's unreviewable, there's no manageable standard, nothing to be done, and now you're I I I think you I tell me if I'm wrong, you backed off that position. Uh uh uh uh maybe that's fair to say. Okay. That would be I think an abdication. That would really be an abdication, not a delegation. I'm uh delighted to hear that.

All right. And then I wanted to return to something Justice Sudemeyer asked under this statute. Okay. So now we're in the statute. It's a major questions question though. Could the President impose a fifty percent tariff on gas powered cars and auto parts. to deal with the unusual and extraordinary threat from abroad of climate change.

It is very likely that that could be done. I think that has to be the logic of your view. Yeah, in other words, obviously this administration would say that's a hoax, it's not a real crisis, but uh I'm sure you would. Yes. But that would be a question for Congress under our interpretation, not for the courts. And then um y y uh uh on this inherent authority idea.

Does I I take I understand the President's inherent authority in wartime and a lot of your examples of regulating commerce and maybe your best one, Hamilton during the Civil War. They they occur during wartime when the President's commander in chief power is clearly in play. Does the President have inherent authority over tariffs in peacetime?

No, we do not contend that. And in fact, and I I I cite that if I may, I point the court to two cases. There are loving against the United States and then Mazarie that cited in loving. Those are situations, for example, loving against the United States The the President had broad Article two 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 is the power to, you know, identify aggravators that make you eligible for the death penalty in in court martial trials.

And yet this court said, we're not going to see a delegation problem here, even though it's really a wholesale delegation of which would otherwise be legislative authority, it would be kind of like a a small version of what you're hypothetical, it would be an abdication. But because you're in a foreign affairs context or their commander-in-chief military context.

But 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. Mm. General, if I can cut through those words. I think you're saying that no, the President doesn't have inherent authority over tariffs in peacetime.

Absolutely. That is I mean 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 fray phrase regulate importation. I agree all all of that. Okay.

Um you emphasize that Congress can always take back its powers. You mentioned that a couple of times. But don't we have a serious retrieval problem here? Because once Congress delegates through by a bare majority and the President signs it, and of course every President will sign a law that gives him more authority. Congress can't take that back without a supermajority. And even e you know, even that it's going to be veto proof. What president's ever going to give that power back?

Pretty rare president. So w what w how d how should that inform our view of delegations? I would look at the balance that Congress struck, because what Congress did initially it had a two house legislative veto and we struck that balance. It took out the legislative veto and left it in a joint resolution, but still left the President with all those. Yes. Fair enough.

I disagree because in january twenty twenty three Congress voted to t to terminate one of the biggest AIBA 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. What happens when the President simply vetoes legislation to try to take these powers back?

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 AIVA is still on the book. But if he declares an emergency and Congress doesn't like it and passes a joint resolution, yes, he can absolutely veto that Congress. So Congress as a practical matter can't get this power back once it's handed it over to the President. It's a one way ratchet toward the gradual but continual accretion of power.

in the executive branch and away from the people's elected representative. I disagree with that and the recent historical counterexample of Congress's termination of the COVID emergency demonstrates That political the political oversight is meaningful thing. Once he lost it by a veto approved majority in the Senate, I think the position is not a good thing.

That's that's the political process working. There was a lot of it takes a supermajority, but a veto proof majority to get it back. Yeah. Okay. Um one other question. Do you think tariffs are always foreign affairs? 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. So revenue raising tariffs are not foreign affairs, but regulatory tariffs are.

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. Okay. Thank you, Jack.

Justice Kavanaugh? Figuring out what regulate importation means is is obviously central here. And for major question purposes, uh I think the way we think about that kind of question is does the Uh specific authority, power, major power now asserted pursuant to that general statutory authorization. Was that the kind of power that would have been understood

by people, by Congress at the time the general statute was passed as distinct from being a novel kind of use of that general authority to do something different, unheralded is the word in our cases. Okay. Uh one problem you have is that presidents sense AIPA have not done this. Your primary answer, or one of your many answers to that, is the Nixon example. And that's a good example for you, because Nixon relied on regulate importation to impose a worldwide tariff. Good example.

What is our understanding of Congress in nineteen seventy seven vis a vis that Nixon example when Congress reenacts or enacts the regulate importation language into IE? 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 reenacted it without change. The court addressed a kind of lesser situation in Algonquin w came to Section 122, and the Court said President Nixon uh courts at President Nixon interpreted this to include a a tariffing power, uh tariffing like power, and then Congress a few months later reenacted 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 importance. This may require some speculation on your part, economic philosophy.

etcetera, but I'll ask it. Why do you think Presidents Clinton, Bush, Obama have not uh used IEPA to impose tariffs on because there have been uh trade disputes and certainly you know President Bush uh steel imports and the like. Why do you think IEPA has not been used? If you look at those sixty nine 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 you would use to address that emergency. So for example, the blood diamond emergency, you know, terraphying these sort of you know, criminal organizations in Africa that are financing terrorism to the sale of diamonds, you don't really tear off them. Or you take, you know, the ho Iranian hostage crisis. Prison Carter didn't say, Oh, you've seized all of our

you know, embassy personnel you're holding them hostage, we're gonna terror a few, right? And if you go through those emergencies, there are two emergencies though where terror's gonna be obvious natural tool. for a president to use.

One is the Nixon balance of payments deficit uh problem and the other is these this a particular emergency. And also there's political reasons. They won't just solve I think that it's no question that President Trump is by far the most comfortable with the tariffing uh tariffs as a tool

both of you know economic and foreign policy than many of the other others presidents m may have been. I mean there are presidents like President Bush who, you know, probably wouldn't have nationally you know selected that particular tool or method. But if you go through all sixty nine of those intervening emergencies, what they have not done at least is they have not identified where they say, Oh, here's one where terrorists would have been the obvious tool, but the President didn't use it.

Uh Algonquin, as you've mentioned many times, is obviously very important here uh for us to understand exactly what's going on in Algonquin. The phrase there is different. adjust imports and they they really the other side, your friend on the other side, really relies on the difference in language. And I just want you to to give your best answer to why regulate importation encompasses

tariffs uh uh when adjust we we held that adjust imports would it would encompass monit monetary exactions. Three answers if I may. Adjust is narrower than regular And so therefore the writer includes the last second answer. Adjust is the d is the second Black's Law Dictionary definition of regulate. The black slaw the our original plain meaning dictionary definition

says adjust by rule mode or uh rule method or established mode. So there's just a plain meaning link there. Regulate adjust is a form of r uh 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 tear it.

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'd 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 importations.

So so that historical pedigree you know sort of gives freighted meaning to that two word friends. And last, um you had some discussion about license fee versus tariffs, if there's a distinction. I mean the council in in the oral argument Algonquin said there are all m monies exacted on imports, so in that sense it certainly is a tariff and hence all the incidence and the economic effect of a tariff. But we can't rely on what the Council said in Algonquin. Isn't there a difference?

uh of sorts at least between a tariff and a license fee. You answered this I think briefly before, but I want to make sure'cause I think this could be an important point because I want to know Algonquin to decide this case. So I agree that there is maybe in my 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 I would point to the p passage in Algonquin where the court says, look, they've conceded that this includes the power to quota, and since quotas are a quantitative message, 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 bits of the thing. One time the court said monetary methods i.e. license fees, and the next page said monetary exactions, i.e. licence fees and duties. You say almost no daylight. Just... I mean I would say that they're 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 the logic of Algonquin was

You have a com 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 the monetary exaction methods. Well, if if we're talking about a distinction between regulated importation including licenses that could come with fees But not tariffs, that logic applies all the more. So makes no sense.

Well I think in Algonquin there was a formal distinction that mattered because at that oral argument Council pointed out that the uniformity clause would r um kick in and the constitutional uniformity requirement would apply to tariffs if it was that way and speculated that the reason that the government may have set it up as a licensing scheme with licensing fees was to avoid that. So I do think there are some distinctions.

Keeping that in mind, if you say that there really is as a practical matter no difference, this is kind of what I'm hung up on and license that maybe you can help. So, and I ate back. Justice Sotomayor is right, license is used as a noun, but it's one of the means necessary. So in Algonquin it was by any means necessary a just.

Here the statute says the President may, under such regulations as he may prescribe, by means of instructions, licenses or otherwise regulate importation, which is the key part for our So the means it specifies are instructions, licenses or other So I think it would I mean one argument might be that it would have been natural for Congress to put The President may, by means of instructions, licenses, tariffs or otherwise.

with an adjustum generis thing, I think you have to rely on the or or otherwise picking up more. Or if there really is no practical difference between licenses and tariffs, why aren't you making the argument or why didn't the President structure this as a licensing fee scheme? How do I understand that language? Or or am I just misunderstanding it and this language is totally irrelevant? I think that I I I here's 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, uh based on uh 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 Twilight.

where TWI was enacting a tariffing power or a licensing like power, you know that that was described as again duties and tariffs equivalently. Okay, but I I I don't understand because I think you have to put together a one and then B. So I think what you would be saying is he may prescribe by means of tariffs tariffs. I think what you're saying is by means of... Instruments.

licenses or otherwise. Instructions sorry, yeah. Instructions licenses otherwise. Okay but otherwise I mean if you say instr instructions licenses or otherwise and we're asserting a power that's very, very similar to licensing

Otherwise naturally car carries that with it, but that's not our principal position. Our principle is just regular importation means that. Okay. And so you don't need to say it again. However, if you i i if Congress has authorized them to do it by licenses that could come with fees that are economically equivalent to tariffs, and then it says otherwise

You know, that just reinforces the same conclusion that we get we using the phrase. Okay, then question just to follow up on Justice Gorsuch's thing about how can Congress ever get this delegation back. You said, well listen, you point to the uh Congress's ability to terminate emergencies, which it's done. But if Congress ever wanted to get the tariffing power back.

it would have to have a veto proof majority because regardless of the emergency. So if Congress wanted to reject the inter let's say that we adopt your interpretation of the statute, if Congress said, whoa We don't like that. That gives a president too much authority under AIPA. He's going to have a very hard time pulling the tariff power out of AIPA, correct?

I don't know if it would be a hard time. Certainly we would have to have a statutory amendment, which would be the true of any case where this court definitively interprets a statute. Yes. to get the President to not want to veto something which as Justice is pointing out uh Justice Gorsuch is pointing out has him lose power.

All right, I want to ask you a question about unusual and extraordinary threat, which we have not talked about yet, and I specifically want to talk about the reciprocal tariff. These are imposed on I mean, these are kind of across the board. And so is it your contention that every country needed to be tariffed because of threats to the defence and industrial

based? I mean it Spain, France, I mean I could see it with some countries, but explain to me why as many countries needed to be subject to the reciprocal tariff policy as are. Yeah, Executive Order fourteen two five seven spells out the nature of the emergency and basically says that there's this

this sort of lack of reciprocity, this asymmetric ter uh tr treatment of o you know our trade with respect to foreign countries' trade that does run across the border is a global problem. I think that puts in context The argument they make that this power to tariff is so broad because you are applying to every country in the world. That conflates the nature of the tool tariffing, which they are 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 uh identified that virtually every major trading partner has this long standing sort of asymmetric unfair treatment of of our trade.

So the 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 ch convince South Africa to change his apartheid policies and he'd imposed tariffs on that.

No one would bat annihilation and say, well that's too broad, that's too broad, that can't be an IEPA. The power to tariff is a sort of fits naturally with all those powers to block, prohibit, and seize and so forth. They're saying this is so broad because the emergency is so broad. But of course that's a presidential determination that

a 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 asymmetry, the underlying conditions, the hollowing out of our manufacturing base. Y y uh y you know, the the the the vulnerability of our supply chains and of course uh the the our defense industrial basis vulnerability of kiy inputs.

Justice Jackson? Mr. President, so as I understand your response to Justice Barrett and that last question, you're saying that the Power to tariff fits naturally with the power to block and seize. That was your example. But I guess I'm trying to understand then your argument from the text of the actual statute. Because the statute, unlike what you suggested to Justice Kagan, is focused on the actual actions that the President can take. In response to Justice Kagan, I understood you to say that

Congress was giving the President broad authority to act and it was within a particular domain, which is the domain of emergencies with respect to foreign power, but the President could basically do a lot of things. 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, nullify, 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 imposed tariff. In that same series of things that the president could do. We don't see that word, and instead you take regulate and say that must mean that. So I guess I'm getting back to Justice Barrett's maybe original question, which was where else in the Code has Congress used the word regulate to sub in for imposed tariffs?

TWIA. And then this Court's opinions, of course, have used regulate and import or have pointed out that duties are the natural way to regulate foreign commerce. But you're saying we should not have expected to see the same level of granularity with respect to the President's authority to impose tariffs, as we see here, investigate, block uh direct and compel, nullify, etcetera.

I think it would be very unusual for Congress to spell out all the ways that you can regulate in that. So regulate becomes a big catch all the rest of the other things. uh uh uh quotas, you know, licenses. They can see 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. And and yet many, many presidents have not used the president. regulate in this way to impose tariffs. I understand you point to President Nixon. We have licenses from Lincoln, but um As I said, 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 his authority. And also frankly, President Trump invoked his authority in in May of twenty nineteen as well. Can I just more historically attested than they than they can see? Let me just ask one more question about um the uh uh unusual threat. So in your conversation with Justice Gorsuch that we had the climate change tariff hypo. And you indicated that there would be challengers.

um to the notion that that was an e unusual and extraordinary threat. And I'm just wondering under your position, would they be able to make a legal challenge? Are you saying the court would not be able to uh review On that particular article, I think I said that would be a question for Connor. So not a c a lot. That would not be uh probably very unlikely. That would be a situation where at least uh there'd be very, very, very deferential judicial review of that kind of determination.

Those are two different things. Our frontline I mean Trump against Hawaii. Our frontline position is that it falls within Dalton against Spectre. It's committed to the President's discretion when he makes his determination of a national emergency, but the court doesn't have to decide that. Uh because whatever review is very, very deferential, it's easily satisfied here. Thank you, Council.

Mr. Cartier. 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 US 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 lifetime.

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 is simply implausible that in enacting AIPA, 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? A EPA is a sanctioned 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 two hundred and thirty eight years. It's done so explicitly, always with real limits. AIPA 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 IPA to impose economic sanctions thousands of times, no president in IPA's fifty year lifetime has ever tried to impose tariffs. And the President bypassed statutes that do address tariffs, like Section one hundred twenty two for large and serious trade deficits, but that imposes a clear guardrail fifteen percent cap, a hundred and fifty day limit.

This is Youngstown at its lowest leb 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 Gorcic 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 regulation.

I welcome the Court's question. Uh wouldn't your argument also apply to embargoes? So uh and this is the argument in the in the fine dissent um below, 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 and are constitutionally special because our CAP 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 ra raising revenue whatsoever. Another point, congressional displacement. Today there is a whole host of statutes in the tariff architecture of Title nineteen, 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 five, it goes through these statutes in detail. Section one hundred twenty two expressly says duties and then limits it fifteen percent hundred and fifty days, Section two hundred and one any duty on the imported article, but it requires ITC findings.

Section three hundred and one impose duties that is the language of the statute, but all sorts of procedural restrictions. Section three hundred thirty eight, 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.

Let's go back to your non delegation point. Uh it would seem that um if it's uh If if the power tariff power cannot be delegated, your argument on non delegation would also have to apply to embargoes and to quotas. No, Your Honor. Because I 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 clear.

As you just heard my friend say, in seventeen ninety 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 Cảm ơn các bạn đã theo dõi và hẹn gặp lại.

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 nineteen seventy seven was the legislative veto. And as this case comes to the court That's no longer in the statute at all. uh a tax and that is a core power of Congress. But there are a foreign facing tax, right? And that foreign affairs is a core power of the executive.

And I don't think you can dismiss the consequences. I mean we didn't stay this case and one thing is quite clear is that the foreign facing tariffs tariffs have in several situations. were uh quite effective in achieving particular objectives. So um I I I don't think you can just separate it when you say well this is a tax Congress's power.

implicates very directly the President's foreign affairs power. 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 one versus Article two. And as my friend finally conceded to Justice Gorsuch, there is no Article two power here, at least when we're talking about peacetime.

With a large part. What's the little part that you do discuss? Absolutely. Our founders recognize that. That's in the Federalist Papers. But nonetheless they exclusively committed that power to the Congress in Article one, Section eight, and gave it as its first power. So when you hear my friends cite cases like Egan and Garamundi,

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 ya I think the best place to look is Youngstown, because what Justice Jackson said, and I was surprised that he quoted page six hundred fifty two because what Justice Jackson said is quote emergency powers tend to kindle emergencies

So it is essential the public may know the extent and limitations of the powers that can 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 is notable our founders didn't give the uh b didn't give the President revenue braising power, even in a time of war. Can I just get a clarification of your answer, which is Um you agree if the word tariff were in the statute that would be acceptable and constitutionally permissible, correct? No i well it it would be it would be constitutionally permissible. Um the question would then be is the open ended

assertion of power here. Because every other thing is that the thing is, I think, as applied to this case. But the general point is yes, Congress you said it's assigned to Congress, but Congress can grant authority to presidents to impose tariffs. Absolutely. Absolutely. Okay. So we have to figure out then re what regulate importation means and You've heard my questions. If th if this statute came out of nowhere in nineteen seventy seven, uh I think your case would be, you know.

want to figure out what the Nixon precedent stands for and what Algonquin stands for. On the Nixon precedent, the question is I think was Congress aware of that, meaning that when they used regulated importation and it's now being used to encompass tariffs, that's not unheralded because Congress was well aware You know, President Nixon announced those tariffs in a nationwide prime time speech, ten percent. uh across the board in August nineteen seventy one. It was not some kind of

little piece of paper. So it was well known. The question then is was Congress why didn't they change the language? Why didn't they say regulate but not tariffs? kind of the the difficult question from the Nixon precedent that I'll give you an opportunity. 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 that it was not some my question I never mentioned Yoshida. It is the uh use by the president of that power under regulated import importation. If we're just talking about that, President Nixon did not rely on the statute whatsoever

I mean that's very clear. In fact we have a Marshall McLuhan moment here because you have before you Alan Wolfe, 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 you can go to your other four your other four. So I think the only way it does any work is if the president i i is through the

uh 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 regulate importation. The word regulate has never been used. It's been it's the Congress uses the term fourteen hundred and ninety nine times. We've 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, um and even if you thought they liked it, which there's absolutely zero evidence of.

Um I don't think that helps the government for reasons that Justice Alita was pointing to, because Yoshida said three things. A TWIA does not give the unlimited authority that the government is seeking here. B, they were only upholding the li the limited specific assertion of authority that President Nixon sought there. And third, going forward, the solution, they said in footnote thirty three, was to use Section one hundred and twenty two of the nineteen seventy four Trade Act.

Fifteen percent, one hundred and fifty 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%. 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 nineteen seventy seven and handed him all this power, I think is really difficult. Just to ask the other go ahead.

Let's start with just the bare statutory language. You have arguments about structure, you have arguments about history, uh there strong arguments, but let's just start with the bare statutory language, regulate importation. If we disregard all of the rest, would you dispute that that would include the imposition of a fee

So if it's uh revenue, yeah we do would dispute that, absolutely. What if there were a statute that said I mean suppose that there's a particular national park that is very crowded, and Congress passes a statute that says the National Park Service may regulate admission to the park. Would you say, well that does not allow them to impose a fee?

So you know, Your Honor sometimes we think of fees as not revenue raising, but rather capturing the cost of government services in your example, uh the going to the park. Suppose it goes beyond the the the cost of uh uh of running the park. Congress just wants to control admission to the park, regulate admission. Wouldn't that include the imposition of a fee? So uh if If it doesn't raise revenue then and it's it's not about that then I think that

That's fine. If it doesn't raises revenue. That's a tougher that's hypothetical. That wouldn't have that wouldn't apply. So I think I think in that circumstance that it wouldn't be a regulation in context, uh uh it wouldn't be permitted. That is At least in the context of tariffs and trade. We know just as a leader of the case. Well that that gets into your other arguments. We start out with the the bare statutory language and uh

That was what my question was about. Do you think all tariffs are revenue raising? Suppose that instead of imposing these across the board tariffs Uh suppose that uh an executive order imposed a tariff on one particular country and provided that this would take effect in ninety days. And suppose that within those ninety days an agreement is reached with that country so that no tariff is ever collected. Would that be a revenue raising tariff?

Uh I take it the initial point w uh of and on its face it is revenue raising, uh 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's confronted just recently in FCC versus consumer research and you said Look, what is a tax? It's sometimes very hard. What is revenue raising? This is obviously revenue raising. Their own brief to the court.

says it's going to raise four trillion dollars. And Justice Alito, you and your consumers research uh descent, Justice Gors' descent that you joined, said taxation is special and different. And it 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 do. But you cite many different statutory provisions that impose tariffs.

Uh and uh and you have a point if that's the relevant universe. What if the relevant universe is tariffs that are imposed in emergency situations? 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.

And I would say the best way of understanding what Congress does in emergencies is to look at their emergency statute. Not one has ever given the President a taxation power or a tariff power. We've had all sorts of emergencies for two hundred and thirty eight years. No President has ever said Oh, the way to deal with that is I need to have a tariff authority and as Justice Otomayor said, AIPA 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 and Moore, which the Chief Justice uh 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. Uh 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 IEPA doesn't cover the Mr. These executive orders do not. address an unusual and extraordinary threat. I understand that argument. Uh suppose that The facts were that it was indispens suppose that there was an imminent threat of war. Not a declared war, but an imminent threat of war with a very powerful enemy whose economy was heavily dependent on US trade.

Could a President under this provision impose a tariff as a way of trying to stave off that war, or would you say no? the President lacks that power. Couldn't do tariff, but could do quota embargo, all of those things. Could do all those things but the other eight powers in IPA 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.

To deter aggression that would bring the United States into a war. You would say no, can't do that. If uh if you ruled for us and the President says, I need this power, he can go to c across the street to Congress tomorrow and get it by a simple majority through reconciliation. Uh 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 judge.

kind of the other argument that's been submerged here textually. Again, just bare text for a moment, okay? Um we've been focused on regulate importation, but actually the statute says the President may by means of licenses or otherwise regulate importation. and we've had some discussion today about the fact that

Um maybe the President could simply recharacterize these tariffs m as licenses or or or rejigger the um the um uh th the schemes so that they are licenses. We've also heard the suggestion that otherwise uh you know, licenses and and and tariffs are very similar, so otherwise might encompass tariffs there. Thoughts.

Yeah, a few thoughts, uh Justice Korsich. First is uh 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. Hartramp 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 was your hypothetical, it allows under the word license them to tariff the world. Uh you know, and uh It seems like you're putting a major questions thumb or an interpretive lens thumb on the plain text there. Is that fair? I think it's I think you could call in major questions. I just think it's like Justice Barrett said in Nebraska versus Biden, the most natural way of understanding what the 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 territory. We should interpret that narrowly for particular reasons. So I think well I th I am disputing it as well. I think the licenses and this 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. Thank you, Council. Justice Thomas, anything further?

I'd like to just revisit the point that Justice Alito was making uh with uh a similar question. Um if one of our major trading partners, that's for example China, uh held a US citizen hostage Uh could the President, short of embargoing or setting quotas, say the most effective way to gain leverage is to impose a tariff? for the purpose of uh leveraging his position to uh recover our hostage.

No, Your Honor. So tariffs are different'cause they're revenue raising and there's 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 that no there is a tariff architecture around Title nineteen in Title nineteen that in 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.

F under the word regulate. I just don't think it can bear that weight.

Justice Toledo? Mm. other tariff provisions that you think would be rendered redundant if we adopted the government's interpretation of AIPA. One that you didn't mention, which is discussed in an Amicus brief, is Section three hundred and thirty eight of the Tariff Act of nineteen thirty. Why doesn't the plain language of that provision, which does speak specifically about duties provide a basis for

all or virtually all of the tariffs that are at issue here. 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, quote, finds as a fact

that a country satisfies two conditions, including that it discriminates against the United States. There are also a host of other reasons why Section three hundred thirty eight may have lapsed and that's why no President has ever used it. But look at the Mr. What it slaps? It's it's regrettable. I mean we put this case on a very expedited schedule and therefore

There are limitations on what uh and the party's ability to answer each other's arguments or arguments that are made by Amici. The Amikus Brief says that it hasn't lapsed. There are uh articles that say it hasn't lapsed. Altyazı M.K. Uh what is the basis for your argument that it lapsed? So two things, Justice Alito. Sections two hundred and fifty two and three hundred one have been understood by many to have superseded Section three hundred thirty eight. 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 three hundred thirty eight 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 are citing one statute and one statute only, AIPA, and we submit to you it doesn't come even close to authorising these worldwide tariffs that they're not. Well, what if the President tomorrow uh were to say uh reissuing these executive orders and and I'm invoking, in addition to other authorities, Section three hundred thirty eight of the Tariff Act. Nineteen thirty.

I I think at that point we'd have that case. I mean I'm not here to say that three thirty eight does or doesn't do one thing. I'm responding to the government's argument, which is the invocation of AIPA and AIPA alone. But perhaps that point, Justice Alito, maybe.

But in these circumstances, if that were to happen, uh and it might be a realistic possibility, you think, well, okay, then the government would continue to try to collect these tariffs and Uh the plaintiffs here would have to go back to the Court of International Trade or the District Court and challenge it again, and it would have to progress.

through those lower courts and come back to us when? A year from now, six months from now, while the tariffs continue to be collected and the amount that's at stake uh mounts into the Billions? I mean, what are we at now? A hundred billion? We get up to up to a trillion? That's what you're suggesting?

So just as Alito, I think uh 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 the 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 the Mr. Well that really wasn't that wasn't my question, Mr Gayell. The question was whether it would make more sense for us to address that if that is a possible justification for these tariffs.

for us to address that now and get it over with rather than having this continue for who knows how long while it goes through the through the procedures in the lower court. 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 it's a good thing.

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 three hundred thirty eight, Section one hundred twenty two, etcetera. 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 two oh one for steel, for for autos and things like that, three hundred one for countries like China.

This President has come along and said something different, and with all due respect, we don't think AIPA allows him to do this junking of the worldwide tariff architecture. And what was the view uh

What were the views of President Trump's immediate predecessors on the question of imposing tariffs or allowing free trade? What was their policy view? There's been a variety of different views about that, but uh you know the executive or y my friend said well p 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 nineteen seventy six.

And we've had trade wars, President Reagan initiated initiated different ones and the use of different authorities, but never once did a President try and seek a EPA as the basis to rewrite the entire tariff code. I I found it interesting to hear you make the non delegation argument, Mr. Call. I I wonder if you ever thought that your legacy as a constitutional advocate would be

the man who revived the nondelegation argument. Heck yes, Justice Alito. I think Justice Gorsuch nailed it on the head when saying that when you're dealing with a statute that thi 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 action. Wouldn't you wouldn't you agree that statutes that confer on the President real emergency powers are often phrased much more broadly.

than other statutes. Isn't it the very nature of an emergency? I know you dispute the fact that this is a real emergency, maybe it's not, but isn't it the very nature of an emergency provision that is going to be more open ended? So Justice Alito, uh 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 and Moore and said it's not that open ended, even though it's an emergency. And by the way, other emergency statutes have very serious limits. Section one hundred twenty two is literally about President Nixon's proclamation.

of an emergency. That's what it's about. And it's limited fifteen percent hundred and fifty days. And what about the uh authorization for the use of military force in two thousand one, which gave the President the power to use all appropriate force Now that's pretty open ended. You would you apply the same uh the same uh nondelegation

argument there that you do here? 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. Well it gets into the question of whether it was delegated or not. What was the scope of the delegation? Absolutely. But um but there, you know it's military

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. And there, yes, when you have delegations of I would say Justice Leto, even when you have delegations in some military cases and emergency statutes.

They have all sorts of limits. So say so ten USC twenty eight oh eight says that in a declaration of war or a national emergency, the President can, quote, undertake military construction necessary to support emergency use of the armed forces, but it has limits.

I'm fascinated that the two instances where uh presidents have used their war powers to impose a tariff, Lincoln and Nixon, that Congress found it necessary to ratify their actions, and that the Court in both those cases, the intermediate uh Court of Appeals in Nixon, uh and our own court. Um included that as part of their reasoning as justifying the use of war power in that situation.

So I'm a little um concerned why the fact that this act, a domestic act on emergency that uses a word a general word like regulate should take on a war power's meaning. when in every other situation, whenever Congress intended domestic tax taxation, it said tax and Oh Justice Otamayer, 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.

you know, every wish way. I'm saying that's another that's your sixth way of differentiating Lucida, correct? So that was a war powers case. 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 ninety six. Well it might not with Congress closed, but Um they can't even think about it right now. I I'm going to assume and maybe he can shake his head yes or no. that Justice uh Kavanaugh will ask you to uh go to Algonquin, which you didn't answer, and he's shaking his head. So I'll let him do that part. Okay? Excellent. Algonquin, Your Honor, is uh you know another.

Oh sorry. We'll hear from Justice Kagan first. I have one uh specific question, one more general question. The specific question is um D does it matter in the way we think about AIPA what Congress thought it was doing in AIPA, what c what Aypa in fact did, that at the time Congress thought it had available to it a legislative veto. I I do think it's relevant at least for delegation purposes because, you know, uh 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 the I guess I'm wondering whether though it cuts against you as well that Congress thought it had a legislative veto so it didn't put in a variety of checks that it might have put in. uh had it not thought it had a legislative veto and You know, that's just tough luck on Congress now.

Yeah, I don't think so. I mean Justice Kagan I think it's a very tough common sense argument to make because every single delegation of tariff sta tariff power statute uh from Congress to the President always has limits and including, you know, Section one hundred twenty two passed just right before AIPA 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 fifteen percent

hundred and fifty 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 nineteen if you can just AIPA them all, French Revolution them all? Uh General Sauer rests a lot on the President's inherent authority. And I want to make sure I understand your answer to the Chief Justice and to Justice Alito. as to where you think that authority exists in a way that actually would affect

our interpretation of a statute and where you think it doesn't, and why this falls into the second category. Given that, in uh General Sauer's view, uh this is obviously what the Chief Justice called foreign faith. Yeah, so it may be foreign facing, but there is still no article two 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 co this is not a wartime or conquered territory. statute, this is or a use of the statute. They are tariffing the entire world. in peacetime and they are doing it, 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 that it does, but boy, they gotta say so really clearly. And here there's nothing like that in the text of AIPA. Justice Gorsuch?

Well I don't know if I agree with what you say I say, but at any rate. Um back to the plain language. Um and and just stick with me for a moment. You know, w the the the the Constitution says that Congress gets to regulate commerce, and everybody understood that that meant and included the power to tariff. story, Madison. Okay? Um so that that's sort of a a problem, right? Regulate is a capacious verb. Um and and then you've got the otherwise language as well, which we've sort of discussed.

And just on the plain language, forget about the backdrop of major computer. Do you need major questions to win? I kinda I kinda think you might. No, I don't think so. I mean if we did we would I think we'd win for reasons express, but I don't think so at all. So Justice Korsuch, our position is not

that regulate can never mean tax or tariff. Our brief at page fifteen gives you an example. A president may regulate cars coming in to 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, uh story and so on, says nothing about this case. That is the constitutional context about Congress's use of power. But it's part of how we understand languages used and

and and it's relevant for that purpose. And and then when you've got licenses which are economically the same thing as t would you agree they're basically economically the same thing as tariffs? Sometimes they can be right. So you've got something that's economically identical to a tariff. authorized by this statute. Where does that leave you? 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 is used in the constitutional sense, it is very different than the sense in AIPA that my friend is asserting. When we're asserting AIPA, 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 nineteen seventy seven? the best context, the most natural context is What does Congress say every time they grant the President? And then the just the 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.

I do follow that argument. Okay. Um but what about otherwise again? I I just really want to make sure I understand y you say that there's there's a good reason why the Solicitor General didn't make that argument. I will be curious to see what he has to say about that.

Uh but w you know w what's your best reasoning why other the otherwise language doesn't matter. Because it's only a mechanism to implement the nine powers. And that that license is sometimes can be revenue raising and sometimes not. So if licenses can be revenue raising and you can do this otherwise through revenue raising things.

Why wouldn't that capture terrorists? So because I think again our point to you is that uh that com that lic if that there's two kinds of license two flavors licenses come in two flavors. If the exec 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 founder's concern. It doesn't implicate the concerns you wrote about in consumers research about the fear of the government. to a major questions or a non delegate that's that's the move you're making, which I think m mm you know, fine, we can consider that. I'm just talking about on the text, okay?

It says by means of licenses or otherwise. You've conceded that licenses are economically equivalent to tariffs, and the statute says by means of licenses or Otherwise regulated. It's only a means and we looked at the head of the means. Because again it it has to be related to the nine powers that Well a license can be. We all ha we have to acknowledge that. And you have said a license can raise revenue, and you could you have said a license is equivalent to a tariff economically.

So what about otherwise? Justice Gorsuch, if the if the license or the otherwise is raising revenue, then it is a difference in kind from the other verbs. And we looked at the history of licenses under TUIA. And we were not able to find any involving licenses or license fees. Okay. Last question. A little further afield. Um the parties discuss a little bit uh the analogy to the Foreign Commerce Clause. Of course, next to it is the Indian Commerce Clause.

And delegations there were very broad initially, involved licenses once again. Why shouldn't that inform our understanding of the Foreign Commerce Clause? Um I don't know that I have a position on that. Um uh it Well if the President has broad authority in one part of the Commerce Clause Why wouldn't he even in the next door neighbor? Oh I see. Because Cure Congress has specifically been given the exclusive power over tariffs, and so if they're to part with it.

I think as this court has said in J. W. Hampton, which is a tariffs case.

I think it's j at least intelligible principles uh 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. Justice Kavanaugh? Uh just on the Nixon point, um because you said I think that the current tariffs are unprecedented. I mean that was a ten percent worldwide tax on every import into the United States, I believe. I mean I we don't need

I just think that's a fact. You have arguments about that, you made good arguments about that, but Just wanted that uh point to be be um clear. On on Algonquin, um to pick up on just uh so to my worst kind assist. Um uh Your argument here is that the statute has to use the word tariffs, I think basically. And We went through Nixon and Yeshida, but then Algonquin, the statute for two hundred and thirty two, does not use the word tariffs. It uses adjust imports.

And President Ford had in imposed again a pretty significant tariff on oil imports. It was a challenge. It got to this court. The attorney s standing where you are stood up and said the license fee now before the court involves the broadest exercise of the tariff power in the history of the American Republic. In fact, we would have to go back to George III's stamp tax to determine as broad an executive power as claimed in this case. The statute is a simple one. It does not mention the tariff.

on its face. The argument there was the word tariff was not mentioned used adjust imports. The court, obviously nine oh rejects that argument in part because, as others have have pointed out, the court does a lot of questioning, well what's the difference between a quota and a tariff? And what's the difference between an embargo and a tariff? And so Uh when when the court writes the opinion it says we find no support in the language of the statute.

Yeah. for respondents' contention that the authorization of the President to adjust imports should be ready to encompass only quantitative methods, i. e. quotas, as opposed to monetary methods, i.e. license fees, of affecting such adjustments. So, on your basic point that you need the word tariff, Algonquin says you don't need the word tariff. And that was President Ford's oil imports. It's nine oh. The oral argument goes through this. Your answer.

There's a lot there, Justice Kavanaugh, so please bear with me. First I'd like to clear clins 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 seventeen ninety, using words like tariffs or duties, but as I was saying earlier to Justice Korsett, You could even use the word regulate, as page fifteen of our brief says, or you can even imagine something that says

Quote, the President may regulate importation by requiring importers to pay ten 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. So Algonquin does have, I think, a context that's miles apart from what the what the government is seeking here to do with AIP. So first of all

It is a common sense statute. I understand there's some rhetoric by common sense reading of the statute. I know there's some rhetoric by the lawyer who stood here before, which is of course uh forgivable. Um uh it was a statute about one product. two hundred and thirty two is article by article. It's one product. This is a billion products or even more that the government is seeking.

The Algonquin was expressly a trade statute. It was the nineteen sixty two 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. I think I'll disagree with you on that. It does a plain text and then says, is there anything in the legislative history to defeat the plain text? So I disagree pretty strongly with you on that, but it doesn't defeat your point. Keep going. Okay. So um I'd also say in the maybe the most important point.

two thirty two our point our argument is not just that you have to specifically authorize a tariff with a some sort of word, but also that one way of understanding whether Congress is delegating it's awesome Tariff power. Are there limits to what Congress has put in? And in Algonquin, in section two hundred thirty two, 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. quote to the extent necessary. All of that is in the statute, all of that is in the Algonquin opinion, none of it is in AIPA.

That's the problem, and that's why, just like James and Moore, the Algonquin case said this is a very limited decision, limited just to the facts. Thank you.

Just a spirit? So this license thing is important to me. And uh do you agree that pursuant to AIPA the President could impose could regulate commerce by imposing a licence fee. Could the President regulate commerce under AIPA? by using a licensing fee? Not a fee. So I should have said this earlier, but license is different from a licensing fee. AIPA and TWIA authorise licenses, not license fees.

And no President has ever charged, to my knowledge, fees under those two statutes for the licenses. So fees impermissible, licenses open. But I thought you conceded to Justice Scorsich that there was no difference between a tariff and a licensing fee functionally. If the licensing fee is just to rec I didn't concede that.

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 c say in their briefs to you raises four trillion dollars. So you will understand the statute to permit licensing in the sense of permission. Like we will not allow you to trade with us. We will not allow your goods to be imported unless we license it. Absolutely. And just spirit, 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 here, thirty-nine percent taxes on some countries and others, um through the word license. And you license exportation?

Um I don't think so for the reason that uh you know Well right now I actually looked into this. I mean I think you maybe not licensing fees. Exactly. But could you license exportation like saying we're not going to allow certain products that have national security implications to be exported?

Yes. So licensing could be used in that sense, not as a revenue raising residue. Okay. So you went back and forth with Justice Korsich about the um implications of the President's authority over foreign affairs and whether the major questions doctrine applies.

You say that in AIPA The President war president's war powers are not implicated, and that was part of the reason why you say that we should think of this differently than some of the historical examples where the commander-in-chief power, war powers, were implicated. But the same language appears in the Trading with the Enemies Act in which war powers would be implicated. So do you think that language should be and of course that is what President Nixon relied on.

So do you think that the language would be interpreted differently in that context? Even though the commander in chief power and the war power would be implicated. carrying over wartime precedents to peacetime for reasoning. I don't understand that then, because everybody agrees the language came in AIPA came from the Trading with the Enemy Act.

So you're saying it has one meaning in the Trading with the Enemy Act and a different meaning in AIPA, that same regulate commerce? No, I think that the conquered territory language and all that may go to the President's Article two powers as 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 Stephen goes through and explains why in nineteen thirty three, when Congress decided to

bring these concepts into peacetime, it severed the wartime roots. And there's a extensive legislative history. Okay, I understand that, but I thought that was about I uh maybe I'm maybe I'm just not tracking. I mean I think there's been some discussion of whether the President would have inherent Article two authority in wartime to impose tariffs

To this end, is that what you're talking about? Are you actually talking about a statute that said regulate importation in wartime? And you think it could have the tariff power conferred through that language in a war making statute but not an IEP. 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 territories, not in the Trading with Enemies Act or anything like that. Okay. So it's an inherent constitutional power coming from the law of war. Okay. And then if if you win

Tell me how the reimbursement process would work. Would it be a complete mess? I mean you're saying before the government promised reimbursement and and now you're saying we know oh well that's rich.

But how would this work? It seems to me like it could be a mess. So the first thing I'd say is that just underscores just how major a question this is. The very fact that you were dealing with this with quotas, there's no refund process uh 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 sp stipulated for the five plaintiffs that they would get the refunds.

So for us that's how it would work. Your question, I take it, is about everyone else. We 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 it nineteen USC fifteen fourteen 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 the United States Shoe, in which, you know, the refund process took a long time. There were any number of claims and equitable relief. LMS. So it's difficult, absolutely. Um we don't we don't deny that it's difficult, but I think what this court has said um in in um uh in the McCassin case in nineteen ninety is that serious economic dislocation isn't a reason to do something.

Northern Pipeline, you guys stage your decision for a while in order to let the congressional process unfold. There may be a congressional process here as well. Um, you know, your uh you know it may be able to also be that this court could limit its decision to

prospective relief under the John Q. Hammonds case. So there's lots of possibilities. Justice Jackson? So I think I read uh Algonquin differently than Justice Kavanaugh. Um when I look at its analysis it absolutely does a textual review, but then it says, quote, turning from section two hundred and thirty two's language to its legislative history, again there is much to suggest that the President's authority extends to the imposition of monetary exactions. And um I appreciate that.

Perhaps that factor uh is no longer in vogue. But did you look into the legislative history here to determine whether there is anything that supports the conclusion that Congress actually intended for this? IEPA statute to allow or authorise the President to uh impose these tariffs. I did and I if I blinked I would miss it because it was virtually nothing. And in fact

Both page page two of both the House and Senate report outline all of the powers that are given under IPA and uh and uh and none none of them have tariff. There's one brief mention of tariff um in the legislative history, but nothing else. And by the way, AIPA passed by voice vote. It was b you know, that was not controversial. We don't deny AIPA is a big major statute.

But the question is, did it authorize tariffs? One of the most contested things since our founding. And you say there's nothing in the legislative history to suggest it. Now to the extent that Congress did uh authorize the President to do something, that those verbs are there, that the Congress was giving the President some authority.

Um do you see a theme connecting those verbs? What was Congress trying to do? And let me just say that I see in the Senate report, which I mentioned earlier, that Congress says that it was trying to give the President the authority to quote control or freeze property transactions where a foreign interest is involved.

And that seems to dovetail with the verbs that are being used in the statute but but what's your view of what Congress was trying to do with this legislation? That's exactly right. They're responding to all sorts of pro uh foreign policy emergencies and foreign threats. And they're giving the president economic sanctions power. So what does the word regulate?

importation due in d under that framework. If we understand that Congress was trying to give this kind of embargo authority in the time of an emergency When it says regulate importation, what what was it envisioning? It was envisioning all the things that the President since nineteen seventy seven, 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 twelve two eighty four about reporting property of the Shah and they've used it for standards like domestic safety standards, environmental standards, labour requirements. They've used it for embargoes.

So all of those are things that I think Congress had in mind in AIPA, and I think the proof of this that it's not this massive statute that allows the government to do anything is Dames and Moore itself because this court rejected the idea that regulate includes the claims uh 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 uh who said um that, quote, 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 year.

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. Gottman? Mr. Chief Justice, and may it please the Court. I'd like to begin by picking up with the exchanges with uh Justice Barrett and Justice Gorsuch about licenses and license fees. Uh 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 uh I am not aware of any history in the five decades that AIPA has been in force of any fees charged for the licenses.

under this statute. This is a statute th th uh licenses can be used, for example, uh the President might uh ban certain transactions with a foreign country, but then grant licenses to do them for humanitarian reasons. But as far as I am aware, there's never been a fee charged for that, and uh I I do welcome the Court's questions. Um but I think that's I just want to make absolutely I think the question is what does or otherwise do?

Well or or otherwise could be of things like instructions or licenses, but again it is it is 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 nineteenth century history that we were discussing as well, because I think um uh there may be a little bit more to add there. Um The the the nineteenth century cases about the President's inherent Article II authority to with respect to uh in a wartime uh 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 in a wartime as an occupying military force. to impose tariffs in occupied territory that way in Mexico, in the Philippines, in California,

Um the Civil War case might be the closest case, but even there what we were talking about were were essentially licensing fees, but they were uh export fees. They were fees that were being imposed on the exportation of cotton from the occupied South

uh 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, uh certainly without the consent of Congress. Council, you agree, I assume, given all the verbs on this list, that the president could do something like just shut down all trade between us and, say, you know, China, right?

Uh y yes, I mean there are other limitations of the Okay. So doesn't it seem and and I think this is one of the the points that Algonquin makes, and I think it's a point that Justice Kavanaugh was making. Doesn't it seem then, I mean I don't want to use the phrase lesser power, lesser included measure, but doesn't it seem like it would make sense then?

that Congress would want the President to use something that was less you know weaker medicine than completely shutting down trade as a leverage to try to get a foreign nation to do something? And the President can, in the form of, for example, quotas But what makes an embargo or quotas fundamentally different from tariffs

uh as my f as my friend has already uh explained, is the revenue raising aspect of that. That makes it a far more significant power. It creates additional danger uh 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.

raise money and unless they're gonna be kind of one to one, this is exactly what it costs, I mean it it it might raise some surplus, it might some e raise some extra. So is it the purpose? If the purpose of the fee or the tariff is to raise money

Is it the purpose that makes it revenue raising, or is it just the fact of surplus created that goes to the Treasury? How do we decide? Yes, I think it's the effect. And to be clear I I think there's a there's there would be a serious difficulty with interpreting any of these words even to allow revenue neutral uh exactions here because none of them involve none of the and again as far as I'm aware AIPA has never been used in that way.

But I don't think a processing fee? I I am not aware of any use of of that sort of uh uh under IEPA, but but even if even if that is permissible, it I think that's permissible precisely because it isn't it doesn't have the effect

of raising revenues. Mr. Catiol um referred to common sense a f several times. And I want to pick up on Justice Barrett's question because your interpretation of the statute, as she pointed out, would allow the President to shut down all trade with every other country in the world, or to impose some significant quota on imports from every other country in the world, but would not allow a one percent Terror.

And that leaves, uh in the government's words and is brief, an odd donut hole in the statute. Why would a rational Congress say, yeah, we're going to give the President the power to shut down trade? I mean think about the effects. But you're admitting that power's in there. But but can't do a one percent tariff. That doesn't seem but I want to get your answer. to have a lot of common sense behind it. It's not a donut hole,

And on that on that power uh that's a good one. Uh on that power though and you've said this many times and Mr Catiel too and I and look I get this obviously but the court has repeatedly said a tariff on foreign imports is an exercise of the commerce power, not of the taxation power. And I'm repeating some but John Marshall said that and Joseph Story and Chief Justice Hughes in the nineteen thirty three case and We've said that quite a bit of time, which seems to at least undermine a bit.

your point that it's an entirely different power because if it is foreign commerce power, it's the same power that Justice Barrett was talking about.

of just embargoing trade with the entire world, which you admit is in this statute? Well i there are a couple of points in there and and uh I will 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 d to talk about a tariffing power, like you could use it to talk about a taxing power. Uh I mean we impose taxes for regulatory purposes as well.

But the uh 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. And I thought your point in response to Justice Kavanaugh, it's a different kind of power because the power that's being authorized by this statute is the power to control or freeze trade. That's exactly That's what Congress was getting at. And so if that's true, then we have to re regulate in that country.

That's exactly right, and I think the reason, getting back to common sense as to why a legislature might authorise that, is that you might not fear abuse of that power in the same way that you would be concerned about abuse of a power to impose Unlimited taxes with no with sort of no controlling costs of the same thing. Well why is that? Because I mean there is a sort of commonsensical intuition that one is uh in in Justice Kavanaugh's example, that one is greater and one is less.

So w wh why why is that not right? 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. Uh actions that bring in revenue uh from from the pockets of taxpayers to the Treasury pose a different set of concerns. Our framers were very concerned about that. A different set of concerns how? Why? Because they bring in revenue and because that that creates a little tautological. Why is it that the revenue raisers

are in a different category. Because if look, if if there if there is some sort of international emergency and the 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 Um at at a particular time.

Th this statute gives the President the power to ensure that exactly no more than one thousand come in at this time. Setting a setting a tariff doesn't ensure that only one thousand will come into this country. It it cedes control over whether the transaction occurs. And what it does is it is it then uh uh uh you know adds revenue to uh the Treasury, and that is

That is again something that our framers thought was extremely important and and uh a core Article one. But Algonquin I mean this kinda goes back to Justice Kavanaugh's point. Algonquin rejects the idea that it was impermissible to use s the fees and we can call them you know license fees that functioned as tariffs or duties in that case, whatever. But Algonquin said that Congress could use the exaction of money to control quantities.

And I I hear what you're saying is like well you can control quantity by numbers by imposing hard limits, but not by money. Not what Algonquin said. So I guess why? Well and I and I don't mean to suggest that you can't use uh exactions to control quantity. What uh 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 context 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 imposing tariffs is a big I mean sorry, do you think that just blocking all trade is a bigger deal than imposing a one percent tariff across the board? I think it would be a huge deal. It is just a different kind of deal.

Alan Kuna was not a constitutional case, right? It was a statutory interpretation case. Right. And so the question there was simply was Congress actually trying to give or did Congress in that statute give the President the authority. to impose these kinds of exactions. And the Court looked at the text and it looked at the legisl legislative history in which there was a number of clues that Congress had actually intended to do that.

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 the some of the factors that the President was supposed to be considering. Keep going. And it would make perfect sense, I think, in a time of emergency, for the many of the reasons that General Sauer pointed out. that Congress would want the President to have the kind of authority that is

uh imposed when you are embargoing things, when you are stopping the trade, when you are uh saying, you know, for emergency reasons we're not letting any of this product come in. I mean sure that's a big deal. But the nature of it makes sense in terms of an emergency. I think what you're saying is that the idea that the government would use its authority to be raising revenues in this situation is a different kind of power.

Exactly. This is about this is a statute about giving the President control over assets, over transactions, over access to banking. Trevor Burrus And tariffs don't do that. You said something about tariffs not uh tariffs in fact seed control over those sorts of things. So they sort of undermine the goals and the purposes of this kind of staff.

Is that right? Yes, that's exactly right. Go ahead. From what you said it seems uh and you said this that the reason for drawing a distinction between tariffs and an embargo is the suspicion that tariffs will be used to raise money and therefore to circumvent Congress's power to control taxes. So it's a question of the risk that's involved. Am I right?

That's what it boils down to. Yes. Well and it's a question of understanding what Congress would have thought it what what what powers Congress would have thought it was conferring. Would Congress have understood the phrase regulated Well I mean the question is why would Congress say you can impose a quota, you can impose a ban, but you can't impose a tariff? And your answer, I gather, is because when a tariff is imposed, we're we're suspect.

about what's going on. We're we're suspicious about what's going on. We think that what the government is trying what the executive is trying to do is to is to raise revenue and that's our that's our business. That's what it has to be. Yes, and uh ever we we know that every other time that Congress has authorized the Trevor Burrus Well that's it, you know you're getting into a different argument. Then would you say the same thing if the measure is really about an emergency?

An undisputed emergency and a really dire emergency. Yes, yes. And again I'll I'll uh refer back to Justice Jackson's concurrence in Youngstown that emergency powers tend to breed emergencies.

Look, the Biden versus Nebraska I think is you know says very clearly I really don't think you are answering the question. The question is, would you have the same suspicion? When it is perfectly apparent from context that what the President is trying to do is to achieve a goal other than the raising of money. I think what I am 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 know that point. Let me ask you an unrelated question. Um Mr. Catial listed some of the things that presidents have done under IEPA, such as screening screening imports.

Do any of the other verbs in IEPA talk about screen w could could screening of imports be done under any of the other verbs in IEPA? I think maybe, but it would have been Which one? Prevent. And and so I think the question would be could be meaning as preventing? Well i it I think it depends what you're screening for. But if you were uh it um Okay, how about imposing uh uh domestic safe uh requirements that promote that are needed to uh safeguard domestic safety?

Any any reg any other provision besides regulate? Any other verb besides regulate that would again I think if we're talking about potentially blocking some property from coming into this country because of safety concerns.

It might be that PREVENT would have gotten you there. What I think Regulate does is it is it clarifies and amplifies that you don't just it it can be nuanced in that way. It can say we will let this come in if it has certain safety requirements, if certain features have been disabled.

something like that. And I think so I think r regulate harmonizes with prevent, investigate during the pendency. Um uh uh block during the tendency of an investigation, those sorts of context point, the context of this statute, what a Congress would have understood, it is an emergency statute.

uh and presumably Congress wants to give the President tools to respond to the emergency in an appropriate way. And it seems odd to imagine a meeting in the Oval Office where the President's told, well we have a problem with I won't name a country, but uh country uh X and You can stop all trade with that country. I mean I'm not sure that's a you know w wise policy to give that much, but it's there, right? You agree it's in this statute. But

And the president says, Well that's too extreme. I want to calibrate my response to deal with this and maybe a uh you know, a tariff of some kind. Like, oh you can't do that. So you're forcing the president to respond to an emergency and you know Justice Alito has raised the point about you know a real emergency and you're taking away the President's suite of tools when the one is much more extreme than is authorized. That just seems a bit unusual.

Um you know, think about India right now, uh the tariff on India, right? That's designed to help settle the Russia Ukraine war. as I understand it, is yeah, don't pretend to be an expert. But if that's gone, you know, that's a tool that's designed talk about foreign facing the most serious crisis in the world. And that's That's out the window. It's just contextually emergency. Unusual to read it that way.

But I I I take your response. Taxation's different and you gotta stick with that line. I no and I don't think it's just that because uh I I mean I 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 uh limits on particular kinds of products, it could be quantity in the history of trade report

trade efforts to respond and push back, you are taking one away. Well and the President and there are many other statutes that might apply depending on the exact circumstances. Council I think what we are forgetting here is a very fundamental point, which is the constitution is structured.

so that if I'm going to be asked to pay for something as a citizen that it's through a bill that is generated through Congress and the President has the power to veto it or not, but I'm not going to be taxed unless both houses the executive and the legislature have made that choice, correct? That's exactly right. So And so there is something it's not just the taxing power qua taxing power. The question is do we permit the president to use the taxing power to affect his personal choices.

of what is good policy for me to pay for. That's exactly right. The question is who decides? Who decides and under what circumstances? Now, with respect to this, I mean I I'm not even going to the pretext argument, okay? But the President threatened to impose a ten percent tax on Canada for an ad Iran on tariffs during the World Series. He imposed a forty percent tax on Brazil. because its Supreme Court permitted the perse prosecution of one of its former presidents for criminal activity.

The point is, those may be good policy. but does a statute that gives without limit the power to a president to impose this kind of tax, does it require more than the word regulate? Exactly. That's your point. Yes. Thank you, Council. Did Mr. Cottiol say anything this morning with which you disagree? No, I think we cleared up any maybe potential disagreement about licensing fees, but I think we all agree on that. Okay. Justice Thomas?

Just Scorsich. So I just want to follow up on Justice Sodemeyer's question at a in the end of a long morning afternoon. It does seem to me, and tell me if I'm wrong, that a really key part of the context here, if not the dispositive one for you, is the constitutional assignment of the taxing power

to Congress. The power to reach into the pockets of the American people is just different, and it's been different since the founding and the navigation acts that were part of the spark of the American Revolution. where Parliament asserted the power to tax to regulate commerce. Some of those were revenue raising, some of them didn't raise a lot of revenue. We had a lot of um pirates in America at the time. Um and Americans thought even Parliament couldn't do that.

But that had to be done locally through our elected representative. Isn't that really the major questions, nondelegation, how whatever you want to describe it, isn't that what's really animating your argument today? I think it's a huge piece of what's animating our argument. Thank you.

Ms. Cameron. Ms. Jackson? Can I just invite you briefly to address your kind of second tier arguments, assuming that the President can impose these sorts of taxes uh tariffs? Um why do you think, for example, that the trafficking tariff here does not deal with the drug trafficking emergency for the purpose of this analysis? So it doesn't deal with it because it's not a sanction imposed against traffickers.

Um it is a san i it is if if you think of it as a sanction, it is a sanction imposed against people importing lawful goods in the home. Doesn't that indirect the th that happens all the time, right? I mean all the other authorities indirectly provide leverage on countries in this way? I don't think so. I think that they are uh the the history of of AIPA and even of TWIA

is imposing sanctions directly on the wrongdoers. These are statutes about providing sanction authority against against uh international actors whose behavior we want to change, and that's not what tariffs are. All right, thank you.

Thank you, Council. Rebuttal, General Sauer? Thank you Mr Chief Justice. Just three points. One an interpretive point. The statutory language here is regulate importation, and again by means of instruments, licenses, or otherwise. Their argument is that that phrase carries with it a whole host of unenumerated 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, uh 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 import.

And so that that that that additional phrase about, you know, uh uh by means of instruments and licenses or otherwise really sort of reinforces the plain meaning, the ordinary natural meaning of regulated importation here. So when it comes to just the plain text of the statute, uh uh their argument is a donut type argument, and it's not an argument that does justice to the statute's plain text.

On the non delegation point, Justice Gorsuch, you alluded to the founding or delegations of the Indian Commerce Power, and I just remind the Court that in seventeen ninety, in July of seventeen ninety, 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 it's the Indian tribes, not foreign sovereigns, but this foreign facing situation, we have a very sort of deep and profound historical pedigree for broad delegations of

R the regulation of commerce, right? The foreign commerce power, in that case, the Indian commerce power. And that ties, I think, to what I I take to be the main theme of the arguments on the other side. And I think that Mr. Catchall started by saying tariffs are taxed. And I want to complete the answer I think I was 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 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 of the rebuilding of our of of our uh uh hollowed out manufacturing base, that it directly addresses the crisis.

It's more effective if no one ever pays the tariff. That's the point of it really. 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 and War, to get countries to change their behaviour to address the foreign arising emergency.

So if you look for example to take a historical example of 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 tax

They are not uh uh they are 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. I 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 to authority in the area of foreign affairs, although not that. It has to be delegated to him, otherwise the delegation Delegation would be superfluous. And for all those reasons, we ask the court to reverse both the decisions below. Thank you, Counsel. The case is