“Emergency powers are meant to be used in emergencies,” said Michael W. McConnell, a former federal appeals court judge nominated by President George W. Bush, who is leading the coalition of small businesses. “No Supreme Court would want to provoke a confrontation with a president of the United States unnecessarily, but on the other hand, the law is the law.”
#SCOTUS #Trump #law #PartisanCourt #ActivistCourt #AbuseOfPower #tariffs #economy
#Trump’s order argued that the #tariffs were needed as a response to “large & persistent” #trade deficits.
Tara Leigh Grove, a UT at Austin #law professor, said the justices could find it a stretch to characterize longstanding trade deficits as an emergency. On the other hand, she said, the statute is broad & appears to give a president a lot of discretion.
“The justices will be struggling with whether they want to second-guess any presidential decision about an emergency,” she said.
The case will also force the justices to address 2 doctrines favored by the conservative legal movement, both of which appear to work against #Trump’s claims. The “major questions doctrine” says #Congress must use clear language to authorize executive actions that could transform the #economy. #SCOTUS relied on the doctrine to invalidate many of President #Biden’s key initiatives, including his student loan forgiveness program.
“Judges lack the institutional competence to determine when foreign affairs pose an unusual & extraordinary threat that requires an emergency response,” Sauer wrote in a court filing.
Sauer also pointed to a recent concurring opinion from Justice Brett M. Kavanaugh in another case that suggested the 2 doctrines play little to no role in the context of national security & foreign policy emergencies.
#SCOTUS #Trump #law #PartisanCourt #ActivistCourt #AbuseOfPower #tariffs #economy
The challenges to Trump’s #tariffs reached #SCOTUS after judges in 3 different lower courts ruled against the admin but allowed the import taxes to remain in effect while litigation continued.
In a 7-to-4 ruling in late August, the US Court of Appeals for the Federal Circuit said the emergency statute did not authorize “tariffs of the magnitude” #Trump announced.
“Whenever #Congress intends to delegate to the president the authority to impose tariffs, it does so explicitly,” the majority said…
Arguments are finally getting underway after a late start.
First up is Solicitor General D. John Sauer, Trump’s top Supreme Court lawyer, arguing for the #Trump admin.
The court has allotted 80 minutes for arguments, but they will almost certainly extend well into early afternoon.
#ClarenceThomas first asks about the ‘major questions’ doctrine
The conservative majority blocked President Joe #Biden’s $500 billion student loan forgiveness plan & other of his administration’s initiatives by ruling that #Congress must speak clearly on questions of “vast economic & political significance.”
It’s not clear whether the justices will apply the same principle in the #tariffs case, but lower courts did.
Sauer says it doesn’t apply to foreign affairs issues.
Justice #Kagan says #Congress, not the president, had the power to #tax & regulate foreign commerce.
Justice #Sotomayor is pressing the government on the fact that #tariffs are a form of #taxation, which rests in the hands of lawmakers to enact. “It’s a congressional power, not a presidential power, to tax,” she said.
Sauer argues that what is at issue in this case is not the “power to tax,” an authority given to Congress, but the ability to regulate foreign powers.
“The fact that they raise revenue is only incidental,” Sauer says of the tariffs. I’m not sure Trump would agree: #Trump has often emphasized the vast amounts of revenue being raised by his #tariffs & their ability to offset #tax cuts.
Justice #Sotomayor is also acknowledging an argument we’ve heard frequently in months of lower court arguments — that the economic emergency law that Trump is using to impose tariffs does not explicitly contain the word tariff.
Justice #Jackson raises a key issue: That the emergency #law in question, #IEEPA, was actually passed by #Congress to constrain the president’s authority & reform an earlier law, the Trading With the Enemy Act, or #TWEA, that Nixon had used to issue global #tariffs.
#SCOTUS #law #PartisanCourt #ActivistCourt #AbuseOfPower #Trump #economy
per NYT, Peter Harrell, a visiting scholar at Georgetown’s Institute for International Economic Law, said that although presidents have steadily broadened the use of #IEEPA over the years, “it was definitely intended to constrain authority.” In return, the #Trump admin is arguing that that change was only intended to add process constraints, not to add substantive constraints, on the president’s actions.
#SCOTUS #law #tariffs #PartisanCourt #ActivistCourt #AbuseOfPower #economy
Justice Brett M. #Kavanaugh, a key vote, is very focused on President Nixon’s imposition of a 10% tariff in 1971. The #tariffs were part of the “Nixon shock” measures aimed at addressing #trade deficits & combatting #inflation. “What’s the significance of the Nixon example & precedent here?” Justice Kavanaugh asked. “Because I think figuring that out is real important to deciding this case correctly.”
#SCOTUS #law #PartisanCourt #ActivistCourt #AbuseOfPower #Trump #economy
Chief Justice John #Roberts jumped in fairly quickly, questioning Sauer about whether he’s relying too much on an older decision on a different part of the emergency-powers law at the center of the case.
Roberts was a law clerk at the time to the justice who wrote the 1981 opinion, William Rehnquist.
#SCOTUS #law #tariffs #PartisanCourt #ActivistCourt #AbuseOfPower #Trump #economy
Sauer provoked an objection from Justice Sonia #Sotomayor after arguing that #Trump’s #tariffs were not designed to raise revenue for the federal government.
Trump has repeatedly boasted about how much money his import taxes are brining into the Treasury.
“You want to say tariffs are not taxes, but they are,” Sotomayor said.
#SCOTUS #law #PartisanCourt #ActivistCourt #AbuseOfPower #economy
#Roberts is questioning the government’s lawyer on why the “major questions doctrine” doesn’t apply here, given the sweeping nature of Trump’s #tariffs. “The justification is being used for power to impose tariffs on any product from any country in any amount, for any length of time,” he says. #Trump used #IEEPA in April to announce a baseline tariff on products from every foreign country, & significantly higher tariffs on exports from several dozen nations.
Chief Justice #Roberts says the major questions doctrine seems to apply here. If so, that is bad news for the #Trump admin.
“The vehicle is the imposition of #taxes on Americans, & that has always been a core power of #Congress,” Chief Justice Roberts says.
#SCOTUS #law #tariffs #PartisanCourt #ActivistCourt #AbuseOfPower #economy
Justice Amy #ConeyBarrett is drilling down to a key question in the case: Does the word “regulate” allow #tariffs?
The #Trump admin argues that it does, & that’s why they say he can impose & change tariffs during national emergencies.
Barrett grilled him on that point, questioning whether regulate has frequently been used to allow for tariffs.
Barrett is a conservative who’s gone her own way on some cases, & her vote will be key in the case.
"Can you point to any other place in the code or any other time in history where that phrase together 'regulate importation' has been used to confer tariff imposing authority?" Justice Amy Coney Barrett asked.
#SCOTUS #law #tariffs #PartisanCourt #ActivistCourt #AbuseOfPower #Trump #economy
Part of the questioning is now revolving around whether the president can use #IEEPA to ban products, but not put #tariffs on them. IEEPA is used to ban imports in a #sanctions context, for example with #trade embargoes on Russia or Iran. But American consumers probably would not respond kindly if #Trump were to ban imports altogether.
#SCOTUS #law #PartisanCourt #ActivistCourt #AbuseOfPower #economy
Sauer told justices the #tariffs are “regulatory tariffs.”
“They are not revenue-raising tariffs. The fact that they raise revenue is only incidental,” he said, arguing that #Trump was not exercising an authority to #tax but rather to #regulate foreign commerce.
But Trump has regularly touted the amount of money tariffs have purportedly brought in.
#SCOTUS #law #PartisanCourt #ActivistCourt #AbuseOfPower #economy
There have been multiple questions about the exact meanings of the words used in #IEEPA, the #law that #Trump is using to impose the #tariffs, particularly as it pertains to presidential powers.
Justices are asking Sauer about he interprets the verbs used in the section under presidential power, & particularly second "B" (in pic), what does it mean to "regulate," the meaning of "importation" & what is meant by "license."
#SCOTUS #law #PartisanCourt #ActivistCourt #AbuseOfPower #economy
#Congress can delegate some of its powers to the executive branch, but there are limits.
Some of the conservative justices want to reinvigorate a legal doctrine that was last used in 1935.
Justice Neil #Gorsuch voted in dissent in June to strike down universal service fee on phone bills as an #unconstitutional delegation of congressional power. The challenges hope to attract his vote on #tariffs on the same basis.
#SCOTUS #law #PartisanCourt #ActivistCourt #AbuseOfPower #Trump #economy
#Gorsuch has mostly worried about #Congress giving away too much of its power to federal agencies. It’s unclear whether he’ll have the same reservation with the president involved.
#SCOTUS #law #tariffs #PartisanCourt #ActivistCourt #AbuseOfPower #Trump #economy
#Gorsuch has questions about both “major questions” & “nondelegation”. He is asking Sauer to provide limits on the broadest reading of the administration’s arguments in favor of #tariffs.
Sauer agreed that another, very different president would have the authority to declare climate change an emergency & impose tariffs to deal with it.
#SCOTUS #law #tariffs #PartisanCourt #ActivistCourt #AbuseOfPower #Trump #economy
Justice #Gorsuch suggests that #Congress may have crossed a constitutional line in delegating too much authority to the president under the administration’s theory.
Gorsuch warns of “a one-way ratchet toward the gradual but continual accretion of power in the executive branch and away from the people’s elected representatives” in Congress.
#SCOTUS #law #tariffs #PartisanCourt #ActivistCourt #AbuseOfPower #Trump #economy
Sauer presented the government’s case for more than an hour. Now up is Neal K. #Katyal, the lawyer for the businesses who have challenged #Trump’s #tariffs. The court has given him 20 minutes to present his argument.
#SCOTUS #law #PartisanCourt #ActivistCourt #AbuseOfPower #economy
#Katyal started off his presentation to the justices by arguing that their decision “comes down to common sense.” He argued that “it’s simply implausible” that when #Congress enacted #IEEPA, it “handed the president the power to overhaul the entire tariff system & the American #economy in the process, allowing him to set & reset tariffs on any & every product from any & every country, at any & all times.”
#SCOTUS #law #tariffs #PartisanCourt #ActivistCourt #AbuseOfPower #Trump
#Katyal noted what appeared to be skepticism of the #tariffs from Justices Amy Coney #Barrett & Neil M. #Gorsuch, asserting that upholding Trump’s #tariffs would be “a one-way ratchet” of delegating power from #Congress to the presidency, adding “we will never get this power back if the government wins this case.”
#SCOTUS #law #PartisanCourt #ActivistCourt #AbuseOfPower #Trump #economy
Katyal’s arguments started with a now familiar statement: “Tariffs are taxes,” adding, “Our founders gave that taxing power to Congress alone.”
He went on to say that #Congress knows exactly how to delegate its tariff powers to the executive branch, & every time it has done that it acted “explicitly, always with real limits. #IEEPA looks nothing like those laws.”
#SCOTUS #law #tariffs #PartisanCourt #ActivistCourt #AbuseOfPower #Trump #economy
Chief Justice #Roberts says the admin’s #tariffs program “implicates very directly the president’s foreign affairs power.”
#Katyal pointed specifically to the example of #Switzerland, a #US #ally with whom we have a trade surplus — NOT a deficit, & #Trump’s imposed tariffs currently sit at 39%. “That is just not something any president has ever had the power to do in our history,” he said.
#SCOTUS #law #PartisanCourt #ActivistCourt #AbuseOfPower #economy
Justice #Alito probed Katyal’s argument against #Trump’s #tariffs asking, “Do you think all tariffs are revenue- raising?”
Katyal, said it was clear that President Trump’s tariffs were “obviously revenue-raising.” Katyal added that even in the government’s brief to the court it said the tariffs were “going to raise $4 trillion.”
#SCOTUS #law #PartisanCourt #ActivistCourt #AbuseOfPower #economy
#ClarenceThomas asked #Katyal if his argument wouldn’t also apply to #embargoes. Katyal said it did not, since #tariffs are ways of regulating revenue.
“Embargoes stop the shipment, tariffs start the tax bill. ...Tariffs are constitutionally special because our founders feared revenue raising, unlike embargoes,” Katyal said. “You know, there was no ‘Boston Embargo Party,’ but there was certainly a Boston Tea Party.”
#SCOTUS #law #PartisanCourt #ActivistCourt #AbuseOfPower #Trump #economy
#Roberts pushed back on Katyal's claim that #tariffs fall squarely within #Congress' taxing power.
Roberts said: “Sure, the tariffs are a tax, & that’s a core power of Congress, but they are a foreign-facing tax, right? And foreign affairs is a core power of the executive.”
He added that #Trump's tariffs at issue in the case "were quite effective in achieving particular objectives," noting that Trump’s tariffs have undoubtedly given him leverage in making recent #trade deals.
"I don't think you can just separate it when you say, 'Well, this is a tax -- it's Congress' power,'" #Roberts said. "It implicates very directly the president's foreign affairs power."
Katyal responded that a president’s emergency powers are not limitless, & that the public needs to know what these limits are.
#SCOTUS #law #tariffs #PartisanCourt #ActivistCourt #AbuseOfPower #Trump #economy
#Katyal argues that “the president is seeking the power to set aside all of our trade treaties unilaterally under the word ‘regulate.’ I just don’t think it can bear that weight.”
A NYT analysis today shows just how fundamentally #Trump has already altered the trading system from the one based on #US agreements at the #WTO & #trade agreements approved by #Congress.
More than 90% of imports are subject to some aspect of #Trump’s #trade policy — #tariffs he announced this year or during his first term, or a sweeping exemption granted to some products, at least temporarily.
#SCOTUS #law #tariffs #PartisanCourt #ActivistCourt #AbuseOfPower #Trump #economy
Justice #Alito asked #Katyal about his argument that the #Trump admin’s #tariffs violate the “nondelegation doctrine,” a legal theory that prevents #Congress from delegating its legislative powers to other branches of government. The doctrine has been pushed in recent years primarily by #conservative legal groups.
“I wonder if you ever thought that your legacy as a constitutional advocate would be the man who revived the nondelegation argument?” #Alito asked of #Katyal, who served in the Obama admin.
Katyal was quick to respond. “Heck yes, Justice Alito. I think Justice #Gorsuch nailed it on the head when saying that when you’re dealing with a statute that is this open-ended – unlike anything we’ve ever seen – to give the President this power.”
#Katyal said that the government has argued in this case that #refunds could be issued later if #tariffs are overturned.
The government opposed a preliminary injunction in this case by saying “oh, don’t worry, we’ll give the refunds later,” he said.
It’s unclear how much would be refunded or who would get money back if the tariffs are halted.
#SCOTUS #law #PartisanCourt #ActivistCourt #AbuseOfPower #Trump #economy
#Katyal argued that the president has other authority to impose #tariffs, without relying on a national emergency.
For example, he cited Section 122 of the Trade Act of 1974, which allows the president to combat trade deficits by imposing tariffs of up to 15% for up to 150 days without congressional approval.
#SCOTUS #law #PartisanCourt #ActivistCourt #AbuseOfPower #Trump #economy
Justice #Kavanaugh points to FEA v. #Algonquin, a 1976 tariff that was upheld by #SCOTUS.
The court unanimously ruled for President Gerald Ford in a case about the imposition of #tariffs on oil imports, based on a different statute that also doesn’t mention the word tariffs.
“The court 9-0 rejected the argument” that the absence of the word tariff doomed Ford’s action, Kavanaugh said.
#law #PartisanCourt #ActivistCourt #AbuseOfPower #Trump #economy
https://supreme.justia.com/cases/federal/us/426/548/
#Katyal responded to #Kavanaugh that #Algonquin was one import. Not #tariffs broadly applied to numerous countries across the board.
“Algonquin was expressly a trade statute,” Katyal said. “It’s everything this case isn’t.”
He said the Algonquin decision had a reference to #duties in a specific provision & an extended, clear legislative history describing the powers given to a president.
#SCOTUS #law #PartisanCourt #ActivistCourt #AbuseOfPower #Trump #economy
One major issue hanging over oral arguments is the extent to which the #Trump admin must refund tariff revenue in the event that the justices find its policies to be illegal.
Speaking on behalf of the challengers, #Katyal acknowledged it is a “difficult” question. But he generally seemed to suggest the court had many options at its disposal & could reconcile that later—including, for example, by limiting its decision “to prospective relief.”
We are approaching the 2½-hour mark in #SCOTUS’ tariff oral argument. So far, the justices have heard argument in defense of Trump’s #tariffs from Solicitor General D. John Sauer. They then heard the argument against the tariffs from Neal #Katyal, lawyer for small businesses who challenged the tariffs.
Now, they are listening to the argument against the tariffs by Benjamin Gutman, the solicitor general of Oregon, who represents a group of states that challenged the tariffs.
An emerging theme, from the conservative justices, is that the president’s concededly broad power to shut down #trade generally may include the lesser power to impose #tariffs. That echoes the admin’s position.
Justice #Sotomayor jumped into the questioning & refocused the case back on a primary argument against the tariff programs, that the #Constitution gives #Congress, NOT the president, the #power to #tax.
#SCOTUS #law #PartisanCourt #ActivistCourt #AbuseOfPower #Trump #economy
#Sotomayor: “We’re 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, & the president has the power to veto it or not, but I’m not going to be taxed unless both houses, the executive & the legislature, have made that choice, correct?”
#SCOTUS #law #tariffs #PartisanCourt #ActivistCourt #AbuseOfPower #Trump #economy
At one point, #Sotomayor listed some of the #tariffs #Trump had imposed, & the wide ranging reasons he had done so — pointing to examples like #Brazil. That country is facing steep duties as Trump looks to protect his political ally, #Bolsonaro, from prosecution.
She concluded with a rhetorical question: “The point is, those may be good policies, but does the statute…[give]…without limit the power to the president to impose this kind of tax—does it require more than the word ‘regulate’?”
#Sotomayor also mentioned the additional 10% tariff #Trump slapped on Canada for airing an advertisement he didn’t like during the World Series.
These clearly don’t fall under the admin’s claim of a #trade “emergency”.
#SCOTUS #law #tariffs #PartisanCourt #ActivistCourt #AbuseOfPower #Trump #economy
Sauer gave his brief rebuttal.
The case is submitted.
Court adjourned.
After almost 3 hours of arguments, the most important takeaway was that the admin’s lawyer faced sharp & skeptical questions from several members of the court’s conservative majority, indicating that major elements of Trump’s #tariffs program may be in peril.
Start of today’s 🧵: https://masto.ai/@Nonilex/115497745998653678
#SCOTUS #law #PartisanCourt #ActivistCourt #AbuseOfPower #Trump #economy
Arguments are finally getting underway after a late start. First up is Solicitor General D. John Sauer, Trump’s top Supreme Court lawyer, arguing for the #Trump admin. The court has allotted 80 minutes for arguments, but they will almost certainly extend well into early afternoon. #SCOTUS #tariffs #law
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