A Disagreement about the Tariff Case and the Major Questions Doctrine
A response to Jack Goldsmith
Jack Goldsmith has critiqued here the United States Court of Appeals for the Federal Circuit’s decision on the Administration’s comprehensive program of tariffs imposed pursuant to the International Emergency Economic Powers Act (IEEPA). He focuses in particular on the court’s application of the “major questions doctrine,” or MQD, which requires clear congressional authorization for “highly consequential” exercises of executive authority “beyond what Congress could reasonably be understood to have granted.” He has found the court’s reasoning on this question to be “inadequate” and the dissent to provide a more reliable “guidepost” to the Supreme Court majority’s approach. At the same time, Goldsmith declines to predict how the Supreme Court will rule. He acknowledges the “uncertainties in the proper application of MQD,” offering only his “best understanding.” And given the complexities and pressures facing the Court— the far-reaching consequences of a decision, prior MQD rulings against the Biden Administration, and additional major presidential power cases in the coming term— he refrains from hazarding a prediction about the outcome.
In this short reply, I don’t take issue with either Goldsmith’s sense of the Court majority’s thinking or any of his uncertainty about the outcome of the case. I do, however, have reservations about his evaluation of the merits of the Federal Circuit’s treatment of the MQD issue. I have trouble taking the majority’s position to be as inadequate on the law as he does. I add this key qualification: because this piece is brief, I will not engage in depth with any and all of the arguments. The general direction of my thinking, and in particular the broad outlines of my response to Goldsmith’s assessment, should be clear.
What is most striking, as I see it, are these three elements: 1) the weaknesses in the argument that IEEPA authorizes the presidential imposition of tariffs, particularly on this scale; 2) the extensive evidence of judicial uneasiness about executive overreach in the exercise of these emergency powers; and 3) the extraordinary breadth and novelty of the Trump Administration’s tariff program, which bears on the MQD’s “common sense” assessment of likely congressional authorization.
1. Goldsmith rightly notes that IEEPA contains “identical language” from the Trading with the Enemy Act, which authorizes presidents to “regulate…importation.” Only one president before Trump, Richard Nixon, invoked this language to impose tariffs, and a court subsequently upheld this interpretation. But, as the Federal Circuit notes, that court went to considerable lengths to emphasize that it was not recognizing in IEEPA a grant of unbridled authority for presidents to simply impose tariffs as he or she chose. It decided the issue fairly conservatively on the facts of the case before it, stressing that President Nixon imposed the tariffs for a short duration and with a specific proviso that the duty of 10% ad valorem as applied to any article could not exceed the cap set by Congress in the published tariffs.
Of particular note was the court’s repeated emphasis on the limits of its ruling on presidential tariff-setting authority: “[t]he declaration of a national emergency is not a talisman enabling the president to rewrite the tariff schedules, as it was not in this case,” and “the Executive does not here seek, nor would it receive, judicial approval of a wholesale delegation of legislative power,” and “[w]e do not here sanction the exercise of an unlimited power.” In a footnote that further distinguishes Nixon’s tariff policy from Trump’s (see below), the court added that Nixon had disclaimed the use of tariffs as a revenue-raising measure.
2. In an earlier and important writing on MQD, Goldsmith has written that the Supreme Court in Dames & Moore found and “gave effect” to broad presidential emergency power authority under IEEPA. And in his recent piece, Goldsmith returns to Dames & Moore, arguing that in its affirmation of this broad delegation of authority “and the logic on which it is built,” that case “temper[s] the relevance of the MQD in interpreting IEEPA, especially when combined with the point…that the ‘novelty’ criterion should have little or no weight here.”
However, Dames & Moore could also be cited for the proposition that courts have approached these issues with marked uneasiness about throwing the doors wide open to presidential claims of emergency authority. Dames & Moore upheld the power of two presidents (Carter and Reagan) to proceed under IEEPA to dispose of claims against Iran in connection with the agreement for the release of American hostages. Nevertheless, as Jack notes, the Court drew lines, rejecting the government’s position that IEEPA authorized presidents to direct suspension of legal claims against Iran. But, even on this issue, the Court engaged in remarkable contortions to give the president “a broad scope for executive action in circumstances such as those presented in this case,” concluding, on the one hand, that IEEPA was not “entirely irrelevant,” but, on the other, that it was “highly relevant” to understanding the president’s authority to structure a framework for private claim settlement. Further bobbing and weaving of this kind was reflected in the Court’s embrace of the notion that it could not “ignore the general tenor of Congress’ legislation in this area in trying to determine whether the president is acting alone, or at least with the acceptance of Congress (emphasis added).”
“General tenor”? Summing it up: the Court traded clarity of doctrine for the result it felt compelled to render “in circumstances such as those presented in this case (emphasis added).” The Court stressed that its decision should not be read too expansively: “Finally, we reemphasize the narrowness of our decision.”
All this is to say: the doctrinal environment here is fuzzy at best, and it seems to provide ample room for the caution exhibited by the Federal Circuit majority. As it noted, correctly returning (in my view) to first principles, tariffs are “a core congressional power,” the tariffs at issue are estimated by the government to fall in the $2.3 trillion to $3.3 trillion range, and in this situation, there is a sound basis for declining to find “clear congressional authorization” for a program of this “vast economic and political significance.”
3. Then there is the reality of the Administration program—unlike any of its kind, justified on grounds ranging from the emergency presented by the country’s trading deficit and the need to induce manufacturers to build plants in the United States, to its potential for raising trillions of dollars in revenue that Congress has not sought to raise through direct taxation. None of this is supposition. Trump: “We’re trying to balance the budget immediately, and because of the tariff income…the numbers are rather staggering.” Trump has further claimed that because his tariffs will be “taking in trillions of dollars,” it will be possible to fund expansive social programs like childcare. And there are the other grievances the president finds he can express with tariffs, as in the massive tariffs imposed on Brazil in part as retaliation for the prosecution of former President Bolsonaro, and the tariffs slapped on India for (among other reasons) reportedly not acknowledging Trump’s peace-making skills and worthiness for the Nobel Prize.
To borrow language from Dames & Moore, such are the “circumstances…presented in this case.” So I struggle to understand how the power this Administration claims under IEEPA is somehow not “novel” or “unheralded” for MQD purposes, but somehow defensible even in light of a complicated statutory history and precedent that reflects judicial unease about the breadth of congressional authorization.
Now, in its petition for certiorari, the Trump Administration does not flinch from the hardest line on its authority to act expansively in the use of tariffs, effectively with no discernible limit. It asserts that IEEPA “unambiguously authorizes tariffs,” which is a strong statement when the statute makes no mention of duties and tariffs, and the judicial interpretation before this round of litigation rests on one case replete with limiting language. It also disposes of the MQD question in sweeping fashion, arguing that IEEPA as an emergency statute is “all about major questions” (emphasis in the original). Under this reading, a statute that is “all about major questions” seems to remove it for all practical purposes from MQD scrutiny.
And outside the courthouse, the Administration has thrown down its challenge to the Court on MQD in no less striking terms. According to Secretary of the Treasury Bessent, the President has the Court cornered: “[T]he amount of money that’s coming in here…the more money coming in, it gets harder and harder for [the Supreme Court] to rule against us….”
Conclusion
These are among the reasons why, if the pivotal “common sense” driving application of MQD is to be taken seriously, the legal case against the Trump tariffs is strong. The Supreme Court has stated in relation to this doctrine that it “‘typically greet[s]’ assertions of ‘extravagant statutory power over the national economy’ with ‘skepticism.’” In the case of Trump’s tariff program, the Federal Circuit was duly skeptical. I might not adopt, and do not here address, the court’s argument in every particular, but its skepticism was justified and its conclusion correct.