Solicitor General John Sauer just began the Administration's argument on the Trump tariffs...
Sauer is getting hit hard on tariffs being an Article I power (with Congress) as opposed to an Article II power (with the President). Justices Kagan and Sotomayor are raising the issue...
...Sauer is doing a very able job with prior precedent and the International Emergency Economic Powers Act (IEEPA). However, Justice Jackson is pressing on how IEEPA was meant to constrain, not expand, presidential authority...
...The key for Sauer's argument is the term "regulate importation" encompasses tariffs. He noted that Nixon used the same language in a prior statute to impose tariffs. Kavanaugh was particularly interested in the linkage in understanding the meaning of the term...
...Justice Barrett pushed back on any precedent of another instance where a statute used "regulate importation" to confer tariff authority. Notably, it sounds like Justice Sotomayor jumped in to interrupt to tell Sauer to answer Justice Barrett's question...
...Barrett is a concern for the Administration on this one. She is clearly skeptical of the arguments on the textual meaning. If he loses Barrett, the challengers would likely only need one more conservative justice for a majority...
...Justice Kagan and Sotomayor are continuing to hit Sauer that tariffs are effectively a tax and thus belong to Congress as a power. Sauer insists that tariffs are a means to regulate imports and not raise revenue...
...Chief Justice Roberts is hitting again on the "major questions doctrine" that was raised by Justice Thomas. Roberts is saying that this is a new interpretation to "impose tariffs on any product from any country in any amount for any length of time"...
...Sauer is still standing firm and doing an impressive job with a clearly skeptical court in arguing that the term "regulation importation" has always been used to include tariffs. He stresses that the predecessor statute using this term was used for a tariff by Nixon...
...Chief Justice Roberts is noting that he would have the court use the interpretation on tariffs "to trump" Congress's tax powers. Roberts pushed back on Sauer's rejection of this as a tax paid by taxpayers and asked "who pays them?"...
...Notably, Chief Justice Roberts just said "it has been suggested" that the tariffs have reduced our deficit. That was a veiled reference to President Trump's own comments, which would suggest that this is a revenue generating policy (like a tax)...
...Sauer is insisting that the revenue is a collateral effect, not the main purpose of tariffs. He has an interesting argument that the Court has conceded that the statute allows quotas on importations. If so, why not tariffs? Justice Barrett, however, continues to express skepticism...
...A bit of needy levity. After Justice Sotomayor finished her questions, Roberts called on Justice Kagan as "Justice Sotomayor" ... Kagan responded by saying "no she's Sotomayor." ...
...Kagan is pressing on this being a tax and saying that if the President has such sweeping authority as a tariff under the statute, it might be an unconstitutional delegation by Congress.
...Another concerning exchange. Justice Gorusch is expressing discomfort with the sweeping character of this power under the Constitution. Gorsuch is objecting that the "inherent authority" theory of the Administration would allow Congress to transfer a wide array of Article I powers. He admits that he is "struggling" with that and got Sauer to admit that there is a delegation problem in some of these implications...
...Gorsuch got Sauer to admit that he was backing off from an earlier argument on delegation. Gorsuch is hitting below the waterline here in taking these arguments to their extremes...
...However, Sauer is doing a brilliant job in fending off these probing questions. While he may not win over some of these justices, he has been very nimble and stout in his defense...
...Sauer just finished. Extraordinary job. Neal Katyal is now up for the challengers...
...Chief Justice just said "of course the tariffs are a tax" but he then added that they are "foreign facing" and that "directly implicates the President's foreign affairs powers." ...
...Kavanaugh just got Katyal to admit that Congress could delegate the tariff authority. He then said that means therefore that the case rests with the meaning of "regulate importation"...
...Justice Alito humorously asked Katyal if he ever thought that he would ever be arguing a non-delegation doctrine -- a view associated with conservative lawyers...
...Justice Gorsuch is pressing Katyal on the plain meaning of "regulate." He got Katyal to concede that licenses can be revenue raising, but they asked why tariffs are not treated in the same way as a form of regulation...
...Gorsuch notes the law says "by use of licenses or otherwise." Since Katyal conceded that licenses can raise revenues, why isn't this part of "otherwise"? ...
...Kavanaugh is correcting Katyal on his characterization of the Nixon tariffs which he noted were sweeping as a ten percent worldwide tariff...
...He also noted that the Court previously rejected that there was a difference between embargoes or quotas versus tariffs. Katyal concedes that "you do not need to use the word tariffs" to give a president this authority. However, he insists the context is key here...
...Kavanaugh "strongly disagrees" with Katyal's portrayal of the earlier ruling in Algonquin...
...Barrett pressed Katyal on whether the President could impose a "license fee." Katyal said no. A license is permissible but not a license fee. Barrett then lowered the boom and said "you conceded that there was no difference between a license and a tariff." Katyal objected that he did not concede the point to Justice Kavanaugh...
...Barrett asked if "there would be a complete mess" if reimbursements have to be made to countries. Katyal says that there is a long process for such refunds had to satisfy. Barrett responded "so a mess"...
...Katyal laid out various scenarios where reimbursement might not occur...
Justice Kavanaugh and Barrett are raising the odd interpretation of Benjamin Gutman that he is conceding that the President can shut down all imports but not allow for a tariff to a lesser degree. Kavanaugh how is that "common sense"...
...Justice Jackson swooped in to assist Gutman in making contextual distinctions. Kagan, however, jumped in to again raise the common sense aspects in allowing a qouta that practically shuts down trade, but does not allow him to use tariffs. It is becoming a bit of a pile on...
...Jackson came back to help draw distinctions for counsel with cases like Algonquin. She said "it would make perfect sense" to have this division of authority between stopping trade and tariffing trade...
...Jackson seems actively arguing the case with counsel. However, Alito to ask "why would Congress say you can impose a ban but not a tariff?" He got counsel to admit that it comes to raising revenue as the prohibited element. However, Alito hit Gutman with "I really do not think you are answering the question"...
...Kavanaugh said "it seems odd" that an emergency statute allows a president to stop all trade with another country but he cannot adopt a lesser measure of a tariff. "That seems a bit unusual"...
...Justice Sotomayor has now intervened with a struggling counsel by clarifying his best argument. Sotomayor just noted that the President "threatened to impose a ten percent tax on Canada for an ad that ran" as examples of how excessive this power would be...
...Gorsuch followed up to Sotomayor and raised the core tax power under the Constitution. He again raised that this seems like a "major questions" doctrine matter...
...Sauer is up on rebuttal. He stressed that the most successful tariff is one that raises no revenue but forces a change in conduct from foreign countries. The argument is over.
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