American court hearing recordings and interviews - U.S. Supreme Court hearing on President Trump's tariff powers - 11/5/25 - (Learning Resources, Inc. v. Trump, President of U.S.)

Episode Date: November 6, 2025

This is the official court audio recording, from the U.S. Supreme Court website: supremecourt.gov/oral_arguments/audio/2025/24-1287

We will hear argument this morning in case 24-1287, Learning Resources v. Trump, and the consolidated case. General Sauer. Mr. Chief Justice, and may it please the Court. On April 2nd, 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 strong. strength of failure with ruinous economic and national security consequences. In dames and more 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 emergencies. 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 IEPA authorizes quotas and other tariff equivalents. The major questions doctrine does not apply here. AEPA 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 non-delegation doctrine casts no doubt on IEPA because Congress may assign the president broad authority regarding the conduct of foreign affairs, where he enjoys his own inherent Article 2 powers. I welcome the Court's questions. Would you spend a few minutes on why exactly the major question doctrine doesn't apply

to the President in this case? Yes, Justice Thomas, and I may make two or three points on that front. First of all, though the major questions doctrine may apply to the President in other context, specifically in the foreign affairs context where he has his own inherent Article 2 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, you know, sort of foreign 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, Justice Jackson, in his Youngstown opinion, addressed this very situation in pages 652 and 653 when he says, this is the system within our, or this is the system within our, or this, This is the procedure within our constitutional system that we have developed to strike the balance. You know, what Dames and Moore described as the never-ending tension between the need for the executive to address,

have a robust power to address emergencies and to subjective checks and balances, what our constitutional system has devised to address that particular problem, that never-ending tension, is the system where Congress confers broad and necessary powers in advance and subjects them to ongoing political oversight, which is exactly what you see in AEPA. 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, inherent Article 2 authority in this context.

And that is, but your point. Can I interrupt you, General, there, and I know that you have a second question, and I want to let you get to that. But just on that first reason, it seemed to depend a lot on the President's inherent Article 2 powers. And I'm wondering what exactly, which powers you're speaking of there. because tariffs, one would naturally think, are the power to impose taxes, the power to regulate foreign commerce. These are not things that I thought of as Article 2 powers. They are quintessential Article 1 powers. So what kind of Article 2 powers are you relying on when you gave the answer about major questions to Justice Thomas? I would refer to what the Court said, for example,

on Egan Department of Navy against Egan. That's a generally accepted view. that the president has broad authority in the foreign affairs realm. There's been debates about exactly how far it goes and how to draw the boundary between the president and Congress, but Egan, Garimendi, other cases, Curtis Wright, the court has recognized the president has broad inherent authority to address foreign situations, foreign affairs, foreign policy, including foreign and rising emergencies.

Now, we don't contend that he has, at least in peacetime inherent terrifying authority. What we have here is two layers. There's the layer, the bedrock of the president's inherent Article 2 powers, and layered on top of that is a sweeping delegation 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 on you, the tools, including Article I one tools, like, for example, the power to regulate foreign commerce. 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's the power to regulate foreign commerce. These are regulatory tariffs. They are not revenue-raising tariffs. The fact that they raise revenue is only incidental. the terrorists would be most effective, so to speak, if no person ever paid them. If they achieve their goals, if they — Counsel, you've already mentioned Dames & Moore three times, which surprises me a little

because the Court and 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 at end of the opinion, it said finally we reemphasized the narrowness of our decision.

Now, at issue in Dames and Moore was a different provision of Aieb, not at issue here, and certainly did not concern tariffs. so I don't quite understand how you can get as much out of dames and more as you're trying to get. Maybe I could put it this way. You don't dispute that dames and more is, as you state, a narrow opinion. However, it addressed certain principles that we think are equally applicable here. For example, the interpretive principle. Dames and Moore held, and again, 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 that 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 in the language in AEPA. The way the court thought about is we are looking at this through the lens of Justice Jackson's opinion in Youngstown. In the court held specifically that these verbs placed the president in Youngstown's own one. The court held that he's

subject to the widest latitude of judicial interpretation that he receives the strongest presumption of validity. I just don't understand this argument. 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 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, the court has never applied the major questions doctrine in the foreign policy context. But we have, the emergency context, not foreign policy context.

We have never applied it to foreign affairs, but this is a tariff. This is a tax. It is a, if I may, it's a foreign facing regulation of foreign commerce. That's a regulatory term. Commerce, everything. So Biden could have declared a national emergency in 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? It's horrible. It's foreign facing. We need all of these things to face

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. Is just declare some foreign-facing purpose? If I may. Maybe I can articulate 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. Not the power to text. 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 16 laws in the past that when Congress intended regulate to mean taxing, that it used 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 in these duties or tariffs. Well, but that was, we did something in Algonquin. It was in the duties section. It's unlike here. It was

paired with questions about decreasing tariffs and increasing tariffs. So it's a very different statute than the one at issue here. But the governing language, admittedly, the references to duties in Section 232A. 232C does not refer to them, and the court didn't refer to 232A at all, or the phrase is duties or tariffs as analysis. What it held was the phrase adjust imports, which includes a verb that's narrower. But it was a It was in context of activities that had to do with raising and lowering duties. Here, the verbs that a company regularly have nothing to do with raising revenues in the form of Texas. And, Counsel, Algonquin wasn't a textualist opinion.

Do you 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 it wasn't as though we were doing an interpretation of the word adjust. I disagree with that. I think 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 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, if it uses a consistently explicit and well-defined approach, which is to use these magic words, tariff, tax, imposed, and so forth. The court said, no, we got it. Congress is not bound to use that particular formulation when it wants to conferring this power. Let me ask you about the premise of your argument.

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Don't wait for someone else to bring change. You can be the one who makes a difference. GoFundMe is the world's number one fundraising platform, trusted by over 200 million people. Start your GoFundMe today at Gofundme.com. That's gofundme.com. Gofund me.com. You sort of started at the beginning saying that one would expect for Congress to give the president a broadly way in this kind of foreign affairs context. And I guess I'm wondering whether you also don't have to contend with the actual purpose

of AIPA in making this argument. because as I understand it, that IEPA was designed and intended to limit presidential authority, that Congress was concerned about how presidents had been using the authority under the predecessor's statute, TWA, and 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 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 — What 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 can you disagree with that? I mean, the history is what it is.

Because they made a series of changes to Aipa that relate to — that relate to the triggering conditions, so to speak, and the procedures that apply, but they did not change the language. Right, but what was the intent of Congress in changing the language, wasn't it to constrain presidential authority in this area? To constrain it in the triggering conditions and the procedures that apply in this — The triggering conditions and procedures that apply are a means to constrain.

That is how they went around about constraining. But my point is that Congress 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 to do pretty much whatever he wanted in this area. Congress took the language from TWA and enacted the very same language, and most importantly here the very same phrase, regulated importation, in IEPA, and therefore the natural inferences, Congress did not intend to change the scope of authority, the powers, the tools,

the President can exercise. Did any President under TWA, did any President under TWA use that language to impose tariffs? Well, yes, President Nixon's 1971. Not a tariff. That wasn't a tariff. It was a licensing agreement during wartime. It was a specific thing.

A tariff I'm talking about. I'm referring to President Nixon's 1971. Terrorist. I'm sorry. Excuse me. Yes. I thought you meant Lincoln. Not only that, but then it was upheld by the Court of Appeals with exclusive jurisdiction under this very phrase.

Can I back you up just a second? I'm sorry. You're talking so quickly. President Nixon did not rely on TWA 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 has a broad invocation. I'm invoking all range of statutes, something like that, in Proclamation 4074. 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. So the Department of Justice defended it as an exercise of TWA and did so successfully. What's the significance of the Nixon example and precedent here? Because I think figuring that out is real important to deciding this case correctly. 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 tariff, impose regulatory tariffs at the borr, forward-facing tariffs at the

border, and we say that's a core application of the phrase regulatory importation, had been interpreted two years before Congress reenacted that language in IEPA had been interpreted to carry with it the authority to impose tariffs. So this court said in Algonquin, for example, with respect to President Nixon's... Just back on the Nixon, what was the scope of the Nixon tariffs? He imposed a 10% tariff kind of across the board to all our major trading partners to address a balance of payments deficit where

he was trying to bring all the major industrial nations to the negotiating table, which he successfully did for the imposition of the tariffs, and they negotiated the Smithsonian Agreement in about five months after which he lifted the tariff. 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 CCPA. It's Federal Circuit's predecessor that had exclusive jurisdiction over that question to include the power to tariff. And then two years later, Congress took that same phrase and reenacted it in IEP after carefully studying the problem of presidential emergency powers and being deeply concerned about, you know, excessive or abusive exercise of that power. So that whole, that whole sort of process gives sort of strong sort of confirmation of this phrase, regulated importation, carries with it the power to

tariff. Now, of course, that's not our leading argument. Our lead argument on interpretation is there's 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 Tori's Treatise and runs all the way through cases like McGoldrick and Board of Trustees. But, Charles, Sauer, can I just ask you a question? 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?

Well, as to regulate importation, that was held in TWA. So obviously, and that's... Okay, okay. So an intermediate appellate court held it in TWA, 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 confered,

used that language to confer the power? Putting aside Ishida. I mean, obviously, other statutory example is just imports. the cases we rely on our cases where, for example, in Gibbons, it's Ogden and Justice Stories. But that just shows the word can be used that way. None of those cases talked about it as conferring tariff authority. I understood you to be citing McGuldrick and Gibbons in those cases just to show that it's possible to say that regulating commerce includes the power to tariff. I think our argument goes a bit further than that as an interpretive matter, because if you look at that

history, the history of delegation. Could you just answer the justices question? Can you identify any statute that use that phrase to confer tariff? Yeah, the only two statutes I can identify now are TWA as interpreted in Yoshida and then closely related, not regular importation, but adjust imports in Section 232. Well, I think adjust imports is differently. So the answer is the contested application in TWA and then now in AIPA. And then, of course, I mean, there's a sort of direct line there. Yeah, I understand that.

But, okay. But then more fundamentally, we rely on the historical. social socialists to show there's 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, going back to Gibbons against Ogden all the way through McGoldrick and Board of Trustees where this court 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.

Just ask you one other question about the plain text General Sauer. So you've referred to the other verbs in IEPA. 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,

correct, 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. Well, possible, General, possible, except Congress did take out a whole bunch of verbs. It took out confiscate, vest, hold, use, administer, liquidate, sell, which were in the prior statute. 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 notion that

all these other verbs 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'll 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 terrifying power when it's combined with importation, and that's just the most natural Because the natural understanding of regulate,

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 mean, they use language about revenue raising tariffs and duties and taxes, all the language that does not appear in the statute you rely on. Start with a grammatical structure of the statute and refer to the other statutes. Regulate importation.

You put those two words in combination. The inference from that is, you know, the founders discussed with this sort of like, you know, as everyone knows, attitude, regulate importation, one of the most natural applications of that is the power to tariff. So when Congress confers the power to regulate imports, it is naturally conferring the power to tariff, which has delegated to the executive branch, you know, again and again and again going back to the court. I'm sorry, counsel. It doesn't say regulate tariffs. It says regulate importations and exportations.

you agree that they can't put tariffs, taxes on exportations, constitution. From the state. I agree with that. All right. So why should we think that it's natural then to think that regulate importation includes taxing importations? Because that is how — It's 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 importations? Because as this Court is recognized, going back to Gibbons against Ogden and going through McGoldrick and Board of Trustees, the phrase, when you know, regulating imports, tariffing is a core application of that. So, in other words, if you're saying go regulate trading and securities, that is coming to tariffing competition. 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 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 1917, where the phrase regulate importation is evoking an inherent power to tariff that became established in the 19th century with in cases like Hamilton against Dylan and so forth. That history is, I think, set forth in Professor Baum's eyes, amicus brief. Counsel, some time ago you disarmament. the applicability of the major questions doctrine, and I want you to explain that a little bit more. I mean, it seems that it might be directly applicable.

You have a claim source in IEPA that had never before been used to justify tariffs. No one has argued that it does until this particular case. Congress uses tariffs and other provisions, but not here. and yet, and correct me on this if I'm not right about it, the justification is being used for a power to impose tariffs on any product from any country 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 to say, 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 doesn't use the word tariffs. 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? So, of course, we tariff. That's what we do. So be very unusual to say, we're giving you power to regulate importation and say,

but you cannot impose regulatory tariffs. That'd be almost 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 regulated importation here in the specific context of the President's Polk and Lincoln and President McKinley asserting the authority to impose tariffs in wartime that was in codify and Tweed, and then redempt.

recodified for peacetime in Tue in 1933 and then carried over into AIPA. So there's that as well. But more importantly, if you look at the sort of triggering conditions that numbers of this court have identified for the major questions doctrine, there's a series of them, and we think they really, all of them don't apply here. For example, the notion that the power is unharolded. You refer to the fact that Aiepa has never been asserted to invoke terrorists, but of course, the immediately predecessor statute, the tariffs that President Nixon imposed on that

were upheld under this very language. So I would say this is, and it was recodified and I even if it two years later. So this is kind of the opposite of unheralded power. It's also heralded because there's this long-standing delegation, a tradition of very broad delegations of the foreign commerce power going back to the founding, going back to 70.

But I mean, and I think this is a question for the other side as well. It's too facing. Yes, of course tariffs and dealings with foreign powers. But the vehicle is imposition of taxes on Americans. And that has always been the core power of

Congress. So to have the President's Foreign Affairs power, Trump that basic power for Congress seems to me to kind of at least neutralize between the two powers, the executive power, and the legislative power. Let me say two things in response to that. First, the notion that these are all born by Americans and are not born by foreign producers whose goods are imported is empirically, there's no basis for that in the record. It's actually a mixed... Well, who pays the tariffs? If a tariff is imposed on automobiles, who pays them? Typically, there'd be a, regardless of who the importer of record is, there'd be a contract that would go along the sort of line of transfer that would allocate the tariff, and there'd be

different. Sometimes 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 wholly owned American subsidiary of a foreign corporation. So it gets allocated. The empirical estimates range from like 30 percent to 80 percent of like how much is borne by American citizens. I mean, it's been suggested that the tariffs are responsible for significant reduction in our deficit. I would say that's raising revenue domestically. There certainly is an incidental and collateral effect of 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 tax. 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 — So why not do what the statute permits bar importation of products altogether? That would be the most effective way to do it. Do you follow the statute? The statute?

says the President can do that. What it doesn't say is the President can raise revenue. What it says, he can regulate importation and go into back hundreds of years, the way you regulate it, causing it, 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. 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 that list of things and you say, aha, those are all weapons, therefore a pike is a spear, not a fish in that particular context. Now look at this list of verbs, block, prohibit, compel, 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, you know, actions of the — General, 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 its Senate report and House report when it enacted the 1941 amendments to TWA. What it was doing. It said that what we are doing is authorizing the President in 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 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 Congress, the powers that Congress was conferring on the President are best understood through the plain text of the statutes, which includes regulated implications. No, 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. And 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

where a foreign interest is involved. And in the TWA context, that makes perfect sense because we're talking about a wartime dynamic. And 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 enemy. And let me say two things in response.

First, as the notion that this is a revenue-raising tactic or power, it is not. We are asserting a regulatory power. It's a delegation of power to regulate foreign commerce, the way to control imports. Have you ever had a moment where you think, man, someone should really do something about this? Then you realize, maybe that someone is you. Well, with the help of GoFundMe, you can change someone's life. You could start a GoFund Me to help a friend pay for school, fund that new community space, or help a local kid finally get to that national competition.

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You can be the one who makes a difference. GoFundMe is the world's number one fundraising platform, trusted by over 200 million people. Start your GoFundMe today at gofundme.com. That's gofundme.com. Gofundme.com. Traditionally has been to tariff them. They say, well, you can post 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 — the response I was given to the justice to illustrate that. 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 you can tax, Mr. President. Here they don't say that. I'd say two things in response to that. That's the very argument that this Court rejected in Algonquin. that the fact that these other specific statutes, do you say a certain way you have to be this way? If we disagree with you that Algonquin is a similar context, do you have another statute or another circumstance? And again, not to decide it'll go to again, but obviously we discussed the phrase adjust imports. And they said, no natural way to do that is to tariff them. And they specifically said it makes no sense at all to authorize quotas, which was conceded that that statute did authorize, but not tariffs because those are equivalent.

But it said it just by any means necessary, which kind of, beefs up, the adjust. And also, 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. Al-Ga-Gon was very careful to always call it a license and a licensing fee, and in the oral argument that came up, too, the distinction between a tariff and a licensing fee. And I can understand how in some context it would be very difficult. You would press on it, and you would say, well, if this license fee is raising revenue,

then it actually functions as a tariff. But what is the significance of that? because in AEPA, it also says it refers particularly to licenses. It says you can license. And license would be a way of giving permission. That's actually the language also used in the Civil War one. What is it? Hemp.

Hemp, exactly. Yes, it does. It was a license. It was a license fee. And that's a way to grant permission that you wouldn't otherwise have to trade and import and let it through. So 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 going

to allow imports from hostile foreign powers, basically rebellious Confederate states of cotton subject to a license, but you've got to pay four cents a pound on cotton when you do it. That's the condition. That is so nearly equivalent to a tariff that says you can bring this goods into our country, but you've got to pay an ad valorem assessment on it. And of course, they have, in their briefs, conceded that, photos apply, that licensing may apply. There is the language in the beginning of 1701 that

that talks about instruments, you know, or other methods, instruments, licenses. But if that was true, why couldn't you just call this a license? And 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 conditioned precedent for engaging in the trade. So it seems like it was a little squirrely about how it was proceeding. And 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 McKinney case talk about duties. So I see the equivalence there, Mr. Chief Justice.

Thank you, counsel. Justice Thomas, anything further? The other side is going to argue, make an argue on delegation, I believe. Would you anticipate that and give us your understanding of the delegation argument? Yes, Justice Thomas, I'd say a couple things in response to that. First of all, this Court has stated. that the non-delegation doctrine does not apply with anything like the same force as it does in the domestic context in the foreign context. And that, again, to cite Dames and Moore cites Youngstown.

In Youngstown and footnote two of 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 Wright, the Rastio dissidenti, is that the domestic non-delegation doctrine does not apply with the same force in the foreign context. And he uses that phrase, does not apply. He says the strict limitations on delegation that apply, you know, in the internal context, 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 1. A few times you have alluded to the history as being important in interpreting the statute. and also that this language comes from the Trading with the Enemies Act, and that has its own pedigree. Could you just sketch out this direct line that you were alluding to as a basis for interpreting the current emergency statute as you would like it interpreted? Yes, Justice Thomas, and turning back to the response I was given to Justice Barrett earlier, there is, I think it's very well set out in Professor Baum's-Egas brief. 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 1917, it was deliberately evoking that.

And when it brings in the power to regulate importation, it's essentially codifying for an inherent power that President's already recognized to have. And then in 1933, when that power is expanded to an area where he wouldn't inherently have it, the peace time. context, that codification, the meaning of that remains the same, the regulated importation language that's brought in from TWA and then ultimately to IEPA in 1977 is carrying with 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 tariff specifically and the power to regulate foreign commerce more generally going back to the time of the founding, which ties to your question about non-delegation.

Justice Alito? The Court of the CCPA said several, said things in Yoshida that are helpful to your position, but it also said some other things. It said that future search charges, quote, must of course comply with Section 122 of the Trade Act of 1974. And it said that the trading with the Enemy Act did not authorize the President to, quote, 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 statements in the opinion? Not in the same way, because those statements are read

into other provisions of TWA that Congress did not enact in NEPA. They may still be there in TWA, but those are limitations that it wouldn't make sense to do. And I think the significance of Yashita is at a higher level. Keep in mind that their principal position is no tariffs at all. Regular importation just doesn't carry a connotation of the power to tariff. And we say we've got historical sources going back to Givens against Ogden that say the opposite. But more fundamentally, everyone knew that at the time IEPA was enacted that regulated importation had just very visibly and very prominently been upheld to include a sweeping global tariff. Thank you.

Mrs. Somayer? I'd like to go back to Justice Barrett's question on the word license as used in AEPA. It's not used as a verb. It's used as a noun. By the 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. Eken only use licenses to accomplish the verbs. So I don't understand how we can treat licensing as equivalent to revenue raising. It as used in AIPA, the license is only to accomplish what B permits. In Hamilton against Dillon, licenses, once you have the license, then you had to pay the fees. But that's the point I'm 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 of regulate importation. We're not saying that executive order of a license. No, I only cite that language, I deductory language, about, you know, instruments, licenses, or otherwise as another layer of breadth in this particular statute. Counsel, would you listen to my question? You're not relying on license for the reason I just said, because it is a noun, not the verb.

You're relying on regulate, correct? Yes, we're on. Regulate importation. And despite the fact that no other president in the history of AEPA has ever used, has ever imported, used tariffs as a power under EIFA. Well, President Nixon did so on. Under our predecessor, and we have all the limitations of that. All right. number two, whenever Congress intends to permit taxing and regulate, it uses the word tax and regulating

in every other statute, correct? I don't can see that. I mean, two very visible examples again are TWA and Section 122. We're back to the question here. Okay. Thank you, Counsel. Justice Sotomayor? No, she's a Justice Sotomayor.

She just a judge. finished. Justice Kagan. And they're friends. I want to take you back to Justice Thomas's question about non-delegation. 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 different because the president has independent constitutional powers in this area. And so that, if one does not think that with respect to tariffs, if one thinks that a tariff is a taxing power,

is a regulation of foreign commerce that is really delegated by the Constitution to Congress, that argument does not sound so well. And in fact, when you look at J.W. Hampton, which gives rise to the non-delegation test that we usually use, J.W. Hampton is a tariff's case. and the court did not say, oh, we need some special new principle here, some stricter rule because we're dealing with 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? Eight years later, in Curtis Wright, the court held the non-delegation doctrine for domestic affairs does not apply with the same forces. But not with respect to tariffs, not with respect to quintessingual. central taxing powers, which are given by the Constitution to Congress.

I think Justice of this Court have recognized in their opinions that one of the reasons that the non-delegation doctrine, you know, that intelligible principle test, hasn't packed as much punch as Justice Kavanaugh said in one of his opinions as it might otherwise have done as it did arise in the Ford Affairs context because there the court has historically been very, very comfortable with very broad delegations. Chicago and Southern Airlines, another case from the 1930s, shortly after J.W. Hempton 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 profound consistency between the announcement of the intelligible principal test in J.W. Hampton And then the subsequent recognition by this court in Curtis, right, that the non-delegation doctrine doesn't apply 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, which dealt with many fewer taxpayers. 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 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. But how does your argument fit with the idea that a tax with no ceiling, a tax that can be anything that here, the President wants, there and agency wants, would raise a pretty deep delegation problem? First of all, I can't say enough, it is a 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's outward facing to foreign affairs where there's the broadest level of deference to the political branches of this Court is recognized in many cases, and it imposed not a floor or limit on the amount of a tariffs that could be imposed very naturally because, for example, as this Court said in Loving, quoting Alexander Hamilton in the Federalist Number 23, it's impossible to foresee either what exigencies may arise or what tools may be needed to address those agencies, the means that may be required to address those agencies. Instead, Congress grant very proud powers, but they're confined to a particular domain. This domain is any property in which any foreign government or any national thereof has any interest. So the sort of

discipline, if one were to apply, we say you shouldn't, but if you were to apply the non-delegation doctrine, the domestic-facing non-delegation doctrine in this context, there's a significant get limitation there. Yeah. So my last question really does have to do with that point, which is how or whether this is confined, because if you look at Title 19, which is loaded with tariffs and duties of various kinds, 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 19 if sub-Selentia, 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 are in Section 1701. president has to make a formal declaration of a national emergency, which subjects him to

particularly intensive oversight by Congress, repeat, you know, natural lapsing, repeated review, reports, and so forth that says you have to consult with Congress to the maximum extent possible. 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. And in fact, you know, we've had. 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 14257 says, and of course, no one disputes the existential nature of the fentanyl crisis, which, you know, we had an 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 forward affairs context, this court has always granted the president the presumption that he's acting in good faith. There are real hurdles there are very significant. It's got to be an unusual, extraordinary threat that arises in whole or substantial part

outside the United States, so it's entirely foreign-facing, into the national security economy or foreign policy of the United States. So there are those. Then there's 1701B, which talks about how it can be used for this and for no other purpose. Then there are limitations in Section 702B. Then there is the limitations I referring 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 drafted, it had his eyes open, as the dissent below says, it's eyes open looking at the problem of sweeping emergency powers for an executive who may use them. in a way that's excessive versus the need to address unforeseeable. Thank you, General. Justice Gorsuch.

General, just a few questions following up on the major questions discussions you've had. You say that 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 non-delegation.

So could Congress delegate to the President the power to regulate commerce with foreign nations as he sees fit? To lay and collect duties as he sees fit? We don't assert that here. That would be a much harder case now in 1790. Isn't that the logic of your view, though? I don't think so, because we're dealing with a statute that was a carefully crafted compromise.

It does have all the limitations that I just talked about. We're saying we shouldn't be concerned with — I want to explain to me how you draw the line because you say we shouldn't be concerned because this is foreign affairs and the President has an inherent authority, and so delegation off the books, more or less. And if that's true, 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 — I'm not asking about the statute. General, I'm not asking about the statute. I'm asking for your theory of the Constitution. Constitution and why the major questions and 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. You're saying there's inherent authority in foreign affairs, all foreign affairs, so regulate commerce, duties 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 meats and bounds, so to speak. It would be a wholesale application. You say we are not here to judge meats and bounds when the foreign up front. That's what I'm struggling with. You'd have to have some test. And if it isn't the intelligible principal test or something with more bite than that, you're saying it's something less. 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 principle test, that that sort of wholesale application of the question. All right. So now you're admitting that there is some non-delegation principle at play here, and therefore major questions as well. Is that right? Very, very deferential.

And again, the phrase that Justice Jackson uses, it just does not apply. I know, but that's where you started off. and now you've retreated from that, as I understand it. Well, I think we would have, as our front-line position, a certain stronger position, but the Court doesn't accept it, then if there is a highly detrimental person. 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 content that. Again, that would be- Well, you do. You say it's unreviewable, there's no manageable standard, nothing to be done. And now you're, I think you, tell me if I'm wrong. You've backed off that position.

Maybe that's fair to say. Okay. All right. Thank you. That would be, I think, an abdication. That would really be an abdication, not a delegation. I'm delighted to hear that, you know. All right.

And I wanted to return to something Justice Sotomayor asked under this statute, okay? So now we're in this statute. It's a major question, though. Could the President impose a 50 percent tariff on gas-powered cars and auto parts to deal with the unusual and extraordinary threat from a broad, of climate change. It's 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... I'm sure. Have you ever had a moment where you think, man, someone should really do something about this? Then you realize, maybe that someone is you. Well, with the help of GoFundMe,

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Start your GoFundMe today at gofundme.com. That's gofundme.com. Gofundme.com. You would. Yes, but that would be a question for Congress under our interpretation, not for the courts. All right. And then on this inherent authority idea, does, 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 occurred 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'd cite that, if I may,

I point the Court to two cases. They're loving against United States and then Masary that's cited in Loving. Those are situations, for example, loving against United States. The President had broad Article 2, 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 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 small version of what you're hypothetical. It would be an abdication. But because you're in a foreign affairs context where they are commander in chief military context, where 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. In those cases, I think are powerful here.

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. 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 phrase, regulate importation. And I follow all of that. I agree. Okay. 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 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 that, it's going to be vetoed. proof. What president's ever going to give that power back? Pretty rare president. So how should that inform our view of delegations and major questions? 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 down. And then Congress went back to the statute and amended it. It took

out the legislative veto and left in the joint resolution but still left the president with all those fellows. That's what Congress did? Yes. Fair enough. As a practical matter in the real world, it can never get that power back. I disagree because in January 2023, Congress voted to terminate one of the biggest IEPA 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 Aieva is still on the books. But if he declares an emergency and Congress doesn't like it and passes a joint resolution, yes, he can absolutely veto that. Congress is a practical matter. Can't get this power back once it's handed it over to the president. So one-way ratchet toward the gradual but continual accretion of power in the executive branch and away from the people's elected representatives. I disagree with that in the recent historical counter-example of Congress's termination of the COVID-emergency

demonstrates that political, the political oversight. With the President's assent. With the President's assent, in fact. Once he lost it by a veto-proof majority in the Senate, I think the position didn't have I think he realized. And that's the political process working. It takes a little consensus against it to co-lice. A veto-proof majority to get it back.

Yeah. Okay. One other question. Do you think tariffs are always foreign affairs? I do think they would — 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 don't know But yes, they typically would involve a foreign affairs thing. However, 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, General. Justice Kavanaugh?

Figuring out what regulate importation means is obviously central here. And for major questions purposes, I think the way we think about that kind of question is, does the 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.

One problem you have is that President since Aeepa have not done this. Your primary answer, one of your many answers to that, is the Nixon example. And that's a good example for you, because Nixon relies. on regulate importation to impose a worldwide tariff. Good example. What is our understanding of Congress in 1977 vis-a-vis that next an example when Congress reenacts or enacts the regulate importation language into AEPA? 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 when it came to Section 122, and the court said President Nixon, the court said President Nixon interpreted this to include a terrifying power, a terrifying 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 regulated importation, a quintessential application of that is the power to tariff. That's how you regulate. Why, this may require some speculation on your part, economic philosophy, et cetera, but I'll ask it. Why do you think presidents Clinton, Bush, Obama have not used IEPA to impose tariffs on,

because there have been trade disputes and certainly, you know, President Bush, steel imports and the like? Why do you think IEPA has not been used? If you look at those 69 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, tariffing these sort of, you know, criminal organizations in Africa that are financing terrorism to the sale of diamonds, you don't really tariff them. Or you take, you know, the Iranian hostage crisis. Prison card didn't say, oh, you've seized all of our, you know, embassy personnel, you're holding them hostage.

We're going to tariff you, right? And if you go through those emergencies, there are two emergencies, though, where tariffs are the obvious natural tool for a president to use. One is the Nixon balance of payments deficit problem, and the other is this particular emergency. And also there's political reasons. I think it's no question that President Trump is by far the most comfortable with the tariffs as a tool, both of, you know, economic and foreign policy than many of the other presidents 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 69 of those intervening emergencies, what they have not done at least is they have not identified where they say, oh, here's one where

tariffs would have been the obvious tool, but the president didn't use it. Algonquin, as you've mentioned many times, is obviously very important here for us to understand exactly what's going on in Algonquin. The phrase there is different, adjust imports, and they really, the other side, your friend on the other side, really relies on the difference in language. I just want you to give your best answer to why regulate importation encompasses tariffs when adjusts. We held that adjust imports would encompass monetary exactions. Three answers, if I may. Adjust is narrower than regulate.

And so, therefore, the right or close to last year. Second answer, adjust is the second black's law. definition of regulate. The Black's Law did the other original plain meaning dictionary definition says adjust by rule mode or rule method or establish mode. So there's just a plain meaning link there, regulate, adjust as a form of, 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 tariff. So it would be textual.

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 you 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 tariffing is the, in many ways, the quintessential way of regulating importation. So that historical pedigree, you know, sort of gives freighted meaning to that two-word frets. And last, you had some discussion about license fee versus tariffs if there's a distinction. I mean, the council in the oral argument in Algonquin said they're all money exacted on imports.

So in that sense, it certainly is a tariff and hence all the incidents and the economic effect of a tariff. But we can't rely on what the council said in Algonquin. Isn't there a difference of sorts, at least, between a tariff and. a license fee. You answer this, I think, briefly before, but I want to make sure, because I think this could be an important point, because I want to know Algonquin to decide this case. So give you a best shot on that. I agree that there is, maybe in mind, 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 would point to the passage in Algonquin where the court says, look, they've conceded that this includes the power to quota. And since quotas are a quantitative mess, it would make no sense for Congress not to grant. qualitative method, and all the more so here, if there's a concession, as they do in some of the red ones. You know, one time the Court said monetary methods, i.e. license fees, and the next page said monetary exactions, i.e. license fees and duties. You know, I think the Court bought the argument.

It's important to be consistent. There's really not a lot of daylight between those two. As a practical matter, certainly almost no daylight. And so then the question that you say almost no daylight, just — I mean, I would say that they're economic equivalence. Legally, they're pretty much the same. So I really don't see a big distinction there. And, of course, the logic of Algonquin was, you know, quantitative methods are, quotas are allowed, therefore would make no sense at all to interpret this not to include the qualitative or the monetary exaction methods. Well, 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 it makes no sense. Justice Barrett? Well, I think in Algonquin, there was a formal distinction that mattered because that oral argument Council pointed out that the uniformity clause would 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, but 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 in

license that maybe you can help. So in IEPA, 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 adjust. 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 purposes. So the means it specifies are instructions, licenses, or otherwise. 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 adducedom generous thing, I think you have to rely on the 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 am I just misunderstanding it and this language is totally irrelevant? I think that – 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, regular importation, we say, and based on extensive historical pedigree, the core application of that is tariffing. To list tariffing again would have been essentially redundant and unnecessary,

especially if you look at the specific historical background of TWA, where TWA was enacting a terrifying power or a licensing-like power that was described as, again, duties and tariffs equivalently. Okay, but I don't understand because I think you have to put together A, 1, 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. By instructions, licenses or otherwise? Instructions, sorry, instructions, license, otherwise.

Okay. Otherwise, I mean, if you say instructions, license, or otherwise, and we're asserting a power that's very, very similar to licensing, otherwise naturally carries that with it. But that's not our principal position. Our principal position is just regular importation means that. Okay. So you don't need to say it again. However, if Congress has authorized them to do it by licenses that could come with fees

that are economically equivalent to tariffs. And there it says otherwise, you know, that just reinforces the same conclusion that we get at, we use in 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 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, 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 AEPA, it's going to have a very hard time pulling the tariff power out of IEPA, correct? I don't know if it would be a hard time. Certainly would have to have a statute. Which would be the true of any case with this court definitively interprets a statute. Yes. I think that the Congress has to pass a statute. But definitively interpreting a statute that grants presidential power makes it particularly hard to get the president to not want to veto something, which, as 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 tariffs. 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 defense and industrial base? I mean, 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 14257 spells out the nature of the emergency and basically says that there's this sort of lack of reciprocity, this asymmetric treatment of our trade with respect to foreign countries trade that does run across

the board. This is a global problem. I think that puts in context the argument they make that this power to tariff is so broad because you're applying to every country in the world. That conflates the nature of the tool, tariffing, which they're 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 identified that virtually every major trading partner has this longstanding, sort of asymmetric unfair treatment of our trade. So 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 convince South Africa to change his apartheid policies, and he didn't post tariffs on them. No one would bet in 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 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 asymmetric, the underlying conditions, the hollowing out of our manufacturing base, you know, the vulnerability of our supply chains, and, of course, our defense industrial

basis is a vulnerability of key inputs. Justice Jackson. So as I understand your response to Justice Barrett in 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 suggest, 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 dependency 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 tariffs 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? TWA. 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, direct and compel, nullify, et cetera. I think it would be very unusual for Congress to spell out all the ways that you can regulate in that statute. So regulate becomes a big catch-all. The rest of the other things.

Well, I mean, we have a concession of that from the other side, that regulated at least includes qualitative methods, quantitative methods, 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 yet, and yet many, many presidents have not. not used regulate in this way to impose tariffs. I understand you point to President Nixon. We have licenses from Lincoln, but no one else. As 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 May of 2019 as well. Can I ask you one question? historically attested than they can see. Let me just ask one more question about the 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 to the notion that that was an 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 review? On that particular hypothetical, I think I said that would be a question for Congress. So not a... In other words, that wouldn't be the sort of thing that courts would want to wait into. Is this really an emergency? You know, that would not be probably very unlikely. That would be a situation where at least there'd be very, very, very deferential judicial review of that kind of determination.

No, I'm asking you... Those are two different things. Is there no judicial review or is there deferential? Our front line, I mean, Trump against Hawaii. Our frontline position is that it falls within Dalton against Specter. It's committed to the president's discretion when he makes this determination. of a national emergency, but the Court doesn't have to decide that because whatever review is very, very deferential, it's easily satisfied here.

Thank you. Thank you, counsel. Mr. Cotillo. Thank you, Mr. Chief Justice, and may please the Court, tariffs are taxes. They take dollars from Americans' pockets and deposit them in the U.S. 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 lifetimes. Many doctrines explain why this is illegal, like the presumption that Congress speaks

clearly when it imposes taxis and duties and the major questions doctrine. But it comes down to common sense. It's simply implausible that in enacting AEPA, 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 in all times, and has just Justice as 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? Aipa is a sanction 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 238 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 wants to include tariffs, and it lacks the limits of every other tariff statute. And that is why, even though presidents have used AIPA to impose economic sanctions, thousands of times, no president in AEPA's 50-year lifetime has ever tried to impose tariffs.

And the president bypass statutes that do address tariffs, like Section 122, for large and serious trade deficits, but that imposes a clear guardrail, 15% cap, 150-day limit. This is Youngstown at its lowest lab. If the government wins, another president could declare a climate emergency and impose huge tariffs without fines or without floors or ceilings, as Justice Gorsuch 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 word regulate. I welcome the court's questions. Wouldn't your argument also apply to embargoes? So, and this is the argument in the fine

dissent 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 opinion said, this is the way we actually chiefly got revenue for the first hundred years of our republic. Tariffs are constitutionally special because our 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

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 raising revenue whatsoever. Another point, congressional displacement. Today, there is a whole host of statutes in the tariff architecture of Title 19, 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 5, it goes through these statutes in detail. Section 122 expressly says duties and then limits it. 15% 150 days. Section 201,

any duty on the imported article but it requires ITC findings. Section 301, imposed duties. That's the language of the statute but all sorts of procedural restrictions. Section 338, 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. It would seem that if the 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 of, Is there uniquely revenue raising and pose 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 1790, 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 in AIPA 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 1977 was the legislative veto. And as this case comes to the court, that's no longer in the statute at all. Counsel, you — yes, sure, the tariffs are a tax, and that's a core power of Congress. But there are 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 have in several situations — Right, and we are — I'm sorry. I'm sorry. were quite effective in achieving a particular objective. So I don't think you can just separate it when you say, well, this is a tax to Congress's power.

It implicates very directly the President's Foreign Affairs power. Mr. Chief Justice, 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 1 versus Article 2. And as my friend finally conceded to Justice Gorsuch, there is no Article 2 power here, at least when we're talking about peacetime. Well, you don't agree with a large part. What's the little part that you do disagree with? So we agree with the idea that terrorists have foreign policy implications. Absolutely. Our founders

recognize that. That's in the Federalist Papers. But nonetheless, they exclusively committed that power to the Congress in Article 1, Section 8, and gave it as its first power. So when you hear my friend cite cases like Egan and Garimundi, they just don't apply. of this specific unique situation in which Congress has given that power. And if you were tempted by this, I think the best place to look is Youngstown, because what Justice Jackson said, and I was surprised that he quoted

pages 652, because what Justice Jackson said is, quote, emergency powers tend to kindle emergencies, so it's 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's notable our founders didn't give the, didn't give the president revenue brazing power even in a time of war. Can I just get a clarification of your answer, which is you agree if the word tariff were in the statute, that would be acceptable and constitutionally permissible, correct? No, well, it would be, it would be constitutionally permissible. The question would then be, is the open-ended assertion of power here? because every other tariff statute is limited.

But the general point is, yes, Congress, you said it's assigned to Congress, but Congress can grant authority to presidents to impose tariffs as a general proposition. Absolutely. Okay, so we have to figure out then what regulate importation means. And you've heard my questions. If this statute came out of nowhere in 1977, I think your case would be, you know, obviously stronger. We have to figure out, at least I 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, 10 percent across the board in August, 1971. it was not some kind of little piece of paper. So it was well known. The question then was Congress, why didn't they change the language? Why didn't they say regulate but not tariffs? That's kind of 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. It's not similar. My question, I never mentioned Yoshida. It's the use by the president of that power under-regulated 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 Wolf,

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. Go to your other four? Yeah. So I think the only way it does any work, is if the president is through 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 appeals decision, I don't think it can come close to overcoming the clear, plain text.

The word regulate is, words regulate importation. The word regulate has never been used. It's been, the Congress uses the term 1499 times. We've got about that number of hits when we looked at it. And maybe there's some double counting. But it has 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, even if you thought they liked it, which there's absolutely zero evidence of, I don't think that helps the government for reasons that Justice Alito was pointing to because Yoshida said three things. A, TWA doesn't give the

unlawmented authority that the government is seeking here. B, they were only upholding the limited specific assertion of authority that President Nixon sought there. And third, going forward, the solution they said in footnote 33 was to use Section 122 of the 1974 Trade Act, 15%, 150 days. And 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. and 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 1977 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. There are 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 revenue, yeah, we do dispute that, absolutely.

What if there were a statute that said, I mean, suppose that there's a particular national park that's very crowded, And Congress passes the 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, going to the park, that may, you know, those kinds of cases which I think you'd struggle. Suppose it goes beyond the cost of running the park. Congress just wants to control admission to the park. Regulate admission.

Wouldn't that include the imposition of the fee? So if it doesn't raise revenue, and it's not about that, then I think that's fine. If it does. It raises revenue. Then I think it's a tougher. That's the hypothetical. That wouldn't apply? So I think in that circumstance that it wouldn't be a regulation in context and wouldn't be

permitted. That is, at least in the context of tariffs and trade, we know Justice Well, that gets into your other arguments. We start out with the bare statutory language, and 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, suppose that an executive order imposed a tariff on one particular country. and provided that this would take effect in 90 days, and suppose that within those 90 days, an agreement is reached with that country so that no tariff is ever collected.

Would that be a revenue-raising tariff? I take it the initial point of and on its face it is revenue-raising, 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 $4 trillion. And Justice Alito, you and your consumer's research dissent, or Justice of course,

is a dissent that you joined, said taxation is special and different. And it is the most powerful thing the government does. And the idea that Congress, when they know exactly how to write and tax statutes gave this power by implication through the word regulate, I think is very, very hard. Well, you cite many different statutory provisions that impose tariffs, 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,

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 statutes. Not one has ever given the president a taxation power or a tariff power. We've had all sorts of emergencies for 238 years. No president has ever said, oh, the way to deal with that is I need to have a tax. tariff authority. And as Justice Otomaior 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 more, which the Chief Justice 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 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, Aipa doesn't cover the issue. You say that this is not, this case does not, these executive orders do not address an unusual and extraordinary threat. I understand that argument. Suppose that the facts were that it was indisposed. 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 U.S. 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 president could not impose the power. Because there's a category shift between a tariff and the other eight powers in AEPA 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. Even if the purpose of this had nothing whatsoever to do with raising one penny, the president didn't want to raise one penny. the president wanted to deter aggression that would bring the United States into a war. You would say, no, can't do that. Just the leader, I think you've said many times the purpose isn't what you look at.

You look to actually what the government is doing. And if you disagree, if you think we're, you know, if you think, excuse me, if you if you ruled for us and the president says, I need this power, he can go across the street to Congress tomorrow and get it by a simple majority through reconciliation. 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 jump. Can I ask you? I just wanted to give you a chance to address kind of the other argument that's been submerged here textually. Again, just bear text for a moment, okay?

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 maybe the President could simply recharacterize these tariffs as licenses or rejigger the scheme so that they are licenses. We've also heard the suggestion that otherwise, you know, licenses and tariffs are very similar, so otherwise might encompass tariffs there. Thoughts? Yeah, a few thoughts, Justice Gorsuch. First is 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. Har Tramp 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 is your hypothetical, it allows under the word license, them to tariff the world, you know, and... It seems like you're putting a major question's thumb. or an interpretive lens thumb on the plain text there. Is that fair? I think you could call it 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. I understand that, but you're not disputing licenses or otherwise means what it says. You're saying that we should interpret that narrowly for particular reasons. So I think, well, I think I am disputing it as well. I think the license 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.

I understand that. And so regulate, I don't think. Thank you. Thank you, counsel. Justice Thomas, anything further? I'd like to just revisit the point that Justice Alito was making with a similar question. If one of our major trading partners,

that's, for example, China, held a U.S. citizen hostage. 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 leveraging his position to recover our hostage? No, Your Honor. So tariffs are different because they're revenue raising, and I think it goes to the point,

saying to you in our very first colloquy, which is quotas, embargoes and stuff are different for a different reason, which is there's a tariff architecture around Title 19 in Title 19 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 under the word regulate. I just don't think it can bear that weight. Justice Alito? You mentioned 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 338 of the

Tariff Act of 1930. 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 338 may have lapsed and that's why no president has ever used it. But look, what is the argument that

it's lapsed? It's regrettable. And we put this case on a very expedited schedule and therefore there are limitations on what and the party's ability to answer each other's arguments or arguments that are made by Amici. The Amicus brief says that it hasn't lapsed. There are articles that say it hasn't lapsed. What is your argument, what is the basis for your argument that it lapsed. So two things, Justice Alito, sections 252 and 301 have been understood by many to have superseded Section 338. 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 33-338 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're citing one statute and one statute only, AIPA, and we submit to you it doesn't come even close to authorizing these, worldwide tariffs. Well, what if the President tomorrow were to say, I'm reissuing these executive orders and I'm invoking, in addition to other authorities, Section 338 of the tariff act, in 1930? I think at that point we'd have that case. I mean, I'm not here to say that 338 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, may get a I mean, I understand party presentation and all of that and not being a court of first view.

But in these circumstances, if that were to happen, and it might be a realistic possibility, you think, well, okay, then the government would continue to try to collect these tariffs, and 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 amounts into the billions. I mean, what are we at now? 100 billion.

We get up to a trillion. That's what you're suggesting. So, Justice Alito, I think 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 oppose the preliminary injunction in this case by saying, oh, don't worry, we'll give the refunds later, and they sought to 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. Well, that really wasn't my question, Mr. Cahill. 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 procedures in the lower courts? Justice Alito, I think that is 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, 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 338, Section 122, et cetera. those are the ways prescribed by the Congress. And as Justice Kavanaugh was saying earlier, every other president has used all the suite of other authorities, 201 for steel, for autos and things like that,

301 for countries like China. This president has come along and said something different, and with all due respect, we don't think Aeepa allows him to do this junking of the worldwide tariff architecture. And 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 on that question? There's been a variety of different views about that.

But, you know, the executive, my friend said, well, 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 deficit has been large and persistent every single quarter since 1976, and we've had trade wars, President Reagan initiated, you know, different ones and the use of different authorities, but never once did a president try and seek IEPA as the basis to rewrite the entire tariff code. I found it interesting to hear you make the non-delegation argument, Mr. Katel. I wonder if you ever thought that your legacy as a constitutional advocate would be the man

who revived the non-delegation 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 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 application. 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, 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 Dameson 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 122 is literally about President Nixon's proclamation of an emergency. That's what it's about, and it's limited 15 percent 150 days. And what about the authorization for the use of military force in 2001, which gave the President the power to use all appropriate force?

Now, that's pretty open-ended. Would you apply the same – the same – non-delegation argument there that you do here? Of course not, because there you have shared powers between the president and Article 1 and Article 2 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 there, you know, it's military.

There's a whole unique history behind that. But here you're talking about something that is exclusively committed to Congress in Article 1. And there, yes, when you have delegations, I would say, Justice Alito, even when you have delegations in some military cases and emergency statutes, they have all sorts of limits. So 10 U.S.C. 2808 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.

Justice Sotomayor. I'm fascinated that the two instances where presidents have used their war power, 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 Court of Appeals in Nixon and our own court, included that as part of their reasoning, as justifying the use of war power in that situation. So I'm a little 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 powers meaning when, in every other situation, whenever Congress intended domestic taxation, it said tax and

regulate. Oh, Justice Othamire, 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 is wrong, you know, every which way. I'm saying that's another, that's your sixth way of differentiating your CEDA, correct? That was a war powers case. So 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 96.

And that hasn't happened here. That has not happened here, not even close. Well, it might not with Congress closed, but they can't even think about it right now. I'm going to assume, and maybe he can shake his head yes or no, that Justice Kappinor will ask you to 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, you know, under the...

No, I'll let him do it. Oh, sorry. Higand, that was his question, but I want to make sure you get to it. We'll hear from Justice Kagan first. I have one specific question, one more general question. The specific question is, does it matter in the way we think about AYPA, what Congress thought it was doing in AEPA, what AYPA, in fact, did? That at the time, Congress thought it had available to it a legislative veto.

I do think it's relevant, at least for delegation purposes, because you know, 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 tariffs. 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 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 power statute from Congress to the president always has limits. And including, you know, Section 122 passed just right before AEPA had in the case of the exact problem that this executive order is dealing with, large and serious trade deficits that said the way to deal with it is 15%, 100%. The idea that three years later, they just said, oh, no, junk the rulebook, I think is very difficult, and no Congress, I think, would rely just on the legislative veto for a thing of such

momentous importance. As you said to my colleague earlier, why would any president look to all of the different tariff statutes in Title 19 if you can just AIPA them all, French Revolution them all? 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 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 General Sauer's view, this is obviously what the Chief Justice called foreign facing. Yeah, so it may be foreign facing, but there is still no Article 2 power whatsoever. there is no citation whatsoever in the government's brief to any notion that the president has

article to tariff authority. Now, look, I will say in wartime, conquered territory, maybe, but 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've got to say so really clearly. And here there's nothing like that in the text of Aipa. Thank you. Justice Gorsuch? Well, I don't know if I agree with what you say, I say. But to any rate. Back to the plain language, and just stick with me for a moment. You know, the Constitution says that Congress gets to regulate commerce,

and everybody understood that that meant and included the power to tariff. Story, Madison, okay? So that's sort of a problem, right? Regulate is a capacious verb. 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, do you need major questions to win? I kind of think you might. No, I don't think so.

I mean, if we did, I think we'd win for reasons expressed, but I don't think so at all. So Justice Gorsuch, our position is not that regulate can never mean tax or tariff. Okay. Our brief at page 15 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 are the context you're referring to, 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 language is used, and it's relevant for that purpose. And then when you've got licenses which are economically the same thing as, would you agree they're basically economically the same thing as tariffs? Sometimes they can be right. Okay. So you've got something that's economically identical. to a tariff authorized by this statute. Where does that leave you? So let me take the question in two parts.

One is about the word regulate and the other is about licensing. With respect to the word regulate, when it's used in the constitutional sense, it's very different than the sense in AEPA that my friend is assuring. 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 and asking the question, question, what did Congress mean in 1977? The best context, the most natural context, is what does Congress say every time they grant the president such a power? And then there's just

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 will expounding the prolixity of a legal code is the opposite of the way you read the Constitution. I do follow that argument. Okay. And what, What about otherwise, again? I just really want to make sure I understand you say that there's a good reason why the Solicitor General didn't make that argument. I'll be curious to see what he has to say about that. But, you know, what's your best reasoning why the otherwise language doesn't have to be?

Because it's only a mechanism to implement the nine powers. And that licenses sometimes can be revenue raising and sometimes not. Yeah. And so if licenses can be revenue raising and you can do this otherwise through revenue raising things, why wouldn't that capture tariffs? So because I think, again, our point to you is that there's two kinds of licenses come in two flavors. 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, the fear of the government. You're not answering my question, though, Mr. Kach. I'm talking about just the plain text here. And you're moving to a major question or a non-deleg, that's the move you're making,

which I think, fine, we can consider that. I'm just talking about it 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,

regulate. It's only a means, and we looked at the history. Yeah, it's a means. Why isn't tariffs a permissible means on the statute? Because, again, it has to be related to the nine powers that are given. Well, license can be. We have to acknowledge that. And you've said a license can raise revenue, and you've said license is equivalent to a tariff economically. So what about otherwise? Justice Gorsuch, 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 the history.

licenses under TWA. And we were not able to find any involving licenses or license fees. Okay. Last question. A little further afield. The parties discussed a little bit the analogy to the Foreign Commerce Clause. Of course, next to it is the Indian Commerce Clause. And delegations there were very broad initially and involved licenses once again. and why shouldn't that inform our understanding the foreign commerce clause? I don't know that I have a position on that. It maybe is a little too a field for me to... 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.D.W., W. Hampton, which is a tariffs case. You'd say the same principle would apply with tariffs with the Indian Congress Clause. It's a tariff-specific argument. I think it's at least the intelligible principles is what this Court has used for tariffs specifically, and we think that's the way you should look at this. And then under intellectual principles, this is miles

away from any delegation we have ever seen. Thank you. Justice Kavanaugh. Just on the Nixon point, because you said, I think, that the current tariffs are unprecedented. I mean, that was a 10% worldwide tax on every import into the United States, I believe. I mean, we don't need, I just think that's a fact. You have arguments about that. You made good arguments about that, but I just wanted that point to be clear. On Algonquin, to pick up on just so to my worst kind assist. Your argument here is that the statute has to use the word tariffs, I think, basically.

and we went through Nixon and Yoshida, but then Algonquin, the statute for 232, does not use the word tariffs. It uses adjust imports. And President Ford had imposed, again, a pretty significant tariff on oil imports. It was challenged. 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 and the history of the American report, public. In fact, we would have to go back to George the third stamp tax to determine as broad and executive power is 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 to just imports. The court obviously 9-0 rejects that argument, in part because, as others have pointed out,

the court does a lot of question, what's the difference between a quota? and a tariff. And what's the difference between an embargo and a tariff? And so when the court writes the opinion, it says we find no support in the language of the statute, the language, for

respondents' contention that the authorization of the present to adjust import should be read 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 9-0. 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 clarify what our position is 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 1790, using words like tariffs or duties. But as I was saying earlier to Justice Gorsuch, you could even use the word regulate, as page 15 of our brief says. Or you could even imagine something that says, quote, the president may regulate importation by requiring importers to pay 10% 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. Algonquin didn't have anything like that, but keep going.

So Algonquin does have, I think, a context. that's miles apart from what the government is seeking here to do with AIPA. So, first of all, it is a common-sense statute. I understand there's some rhetoric by, Common Sense reading the statute. I know there's some rhetoric by the lawyer who stood here before, which is, of course, forgivable. But it was a statute about one product. 232 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 1962 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 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 tax and then says, is there anything in the legislative history to defeat the plain tax? So I disagree pretty strongly with you on that, but it doesn't defeat your point. Keep going. Okay. So I'd also say, maybe the most important point, 232. Our argument is not just that you have to specifically authorize a tariff with some sort of word, but also that one way of understanding whether Congress is delegating.

It's awesome tariff power. It's awesome taxing powers to ask, are there limited? to what Congress has put in. And in Algonquin, in Section 232, the court points to and goes painstakingly through all the limits. The first words of the decision are all about how constrain 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 Dames and Moore, the Algonquin case said this is a very limited decision, limited just to the facts. Thank you. Justice Barrett? So this license thing is important to me.

And do you agree that pursuant to Aipa, the president could impose, could regulate commerce by imposing a license fee? I'm sorry, could you say that again? Could the president regulate commerce under IEPA by using a licensing fee? Not a fee. So I should have said this earlier, but license is different from a licensing fee. AEPA and TWA authorized licenses, not license fees, and no president has ever charged, to my knowledge, fees under thus two statutes for the licenses. So fees impermissible, license is okay.

Fees permissible if they cover the law. the cost of the scheme? Might be. Might be. I mean, but once they start revenue raising, you implicate the most serious concerns. But I thought you conceded a Justice Gorsuch 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.

So if the licensing fee is just to recoup the cost of government services, 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 say, in their briefs to you raises $4 trillion. So you 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 Justice Barrett, 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, 39% taxes on some countries and others, through the word license. Can you license exportation? I don't think so for the reason that, you know, it would be. 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-aging reserve. Yes. Okay. So you went back and forth with Justice Gorsuch. about the implications of the President's authority over foreign affairs and whether the major

questions doctrine applies, you say that in AIPA, the 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 Enemy's Act in which war powers would be implicated. So do you think the 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? 100 percent, I think it would be interpreted differently. Justice Jackson.

Same regulate commerce language. Yes, because once you're carrying over wartime precedence to peacetime. Okay, I don't understand that then, because everybody agrees the language came in IEPA came from the Trading with the Enemy Act. you're saying it has one meaning in the trading with the enemy act and a different meeting in IEPA, that same regulate commerce? No, I think that the Concord Territory language and all of that may go to the President's Article 2 powers as inherent powers in Concord 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 1933, when Congress decided to bring these concepts into peacetime, it severed

the wartime roots, and there's an extensive legislative history. Okay, I understand that, but I thought that was about, 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 2 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 a naïpa.

No, I don't think it confers it in either place. I think the president, 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 inherent constitutional power coming from the law of war. Okay. And then 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 now you're saying, you know, 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 us with quotas. There's no refund process 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's 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 special. specialized body of trade law. And 19 U.S.C. 1514 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.

So a mess. So it's difficult. Absolutely. We don't, we don't deny that it's difficult. But I think what this Court has said in the McKesson case in 1990 is that serious economic dislocation isn't a reason to do something. Northern Pipeline, you guys stayed your decision for a while in order to let the congressional process unfold. There may be a congressional process here as well. You may be able to also be that this Court could limit its decision to prospective relief under the John Q. Hammond's case. There's lots of possibilities. Justice Jackson? So I think I read Algonquin differently than Justice Kavanaugh. When I look at its analysis, it absolutely does a textual review, but then it says,

quote, turning from Section 232'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 I appreciate that perhaps that factor 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 authorize the President to impose these tariffs? I did, and if I blinked, I would miss it because it was virtually nothing. And in fact, page two of both the House and Senate report outline all of the powers that are

given under IEPA. and none of them have tariff. There's one brief mention of tariff in the legislative history, but nothing else. And by the way, Aipa passed by voice vote. It was, you know, there was not controversial. We don't deny IEPA's 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 suggested. Now, to the extent that Congress did authorize, the President to do something, that those verbs are there, that the Congress was giving the President some authority, 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 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 foreign policy emergencies and foreign threats, and they're giving the President economic sanctions power. So what does the word regulate importation do 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 was it envisioning? It was envisioning all the things that the president, since 1977, 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 12-284 about reporting property of the Shaw. And they've used it for standards, like domestic safety standards, environmental standards, labor 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 extinguishment that was at issue in that case. It's a much more limited statute. And Justice Jackson, there was a predecessor of Justice Jackson who said, you know, 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 just destined to pass away, but it is the duty of this court to be last, not first, to give it up. And I take it in my friend's argument on the other side is in deep tension with Youngstown and that canonical principle. Thank you. Thank you, counsel. Mr. Gutman?

Mr. Chief Justice, and may it please the Court. I'd like to begin by picking up with the exchanges with Justice Barrett and Justice Gorsuch about licenses and license fees, because I think we ended on the right note, but I just wanted to make sure that at least my client's position is clear on this. Licenses are different from license fees. And I am not aware of any history in the five decades that IEPA has been in force of any fees charged for the licenses under this statute. This is a statute. Licenses can be used, for example, the President might ban certain transactions with the

foreign country, but then grant licenses to do them for humanitarian reasons. But as far as I'm aware, there's never been a fee charged for that. And I do welcome the Court's questions. But I think that's — I just want to make absolutely clear. I think the question is, what does or otherwise do? Well, or otherwise could be things like instructions or licenses, but again, it's fundamentally having something that is a revenue-raising measure or even that is just an exaction of some sort is fundamentally categorically different from what we understand instructions and licenses to be involved, just like we think regulate doesn't carry the financial connotation,

given the other verbs there. If I could turn to some of the 19th century history that we were discussing as well, because I think there may be a little bit more to add there. The 19th century cases about the President's inherent Article 2 authority to, in a wartime, with respect to importation, is not the power to impose tariffs on imports coming into the United States. That is not what any of those cases were about. They were about the President's power, you know, in a wartime as an occupying military force to impose tariffs in occupied territory in Mexico, in the Philippines, in California. The Civil War case might be the closest case, but even there, what we were

talking about were essentially, there were licensing fees, but they were export fees. They were fees that were being imposed on the exportation of cotton. from the occupied south 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 to authority to impose tariffs, certainly without the consent of Congress.

You agree, I assume, given all the verbs in this list, that the president could do something like just shut down all trade between, us and say, you know, China, right? Yes. I mean, there are other limitations of this. Okay. So doesn't it seem, and I think this is one of 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, as my friend has already explained, is the revenue-raising aspect of that. That makes it a far more significant power. It creates additional danger of overuse.

And I think the other point, as Justice Jackson was pointing out, is that it cedes control over- over whether the transaction occurs from the government to the individuals engaging in this transaction. And that is not what Aipa is intended. What makes something revenue raising? I mean, fees raise money, and unless they're going to be kind of one-to-one, this is exactly what it costs. I mean, it might raise some surplus. It might 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 this? Yes, I think it's the effect. And to be clear, I think there would be a serious difficulty with interpreting any of these words, even to allow revenue-neutral exactions here.

Because none of them involved, none of that, and again, as far as I'm aware, AEPA has never been used in that way. But I don't think there's- Not even a processing fee? I am not aware of any use of that sort of under AEPA. But even if that is permissible, I think that's permissible precisely because it doesn't have the effect of raising revenue. Mr. Katyal referred to common sense 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 1% tariff. And that leaves, in the government's words, in its brief, an odd donut hole in the statute. Why would a rational Congress say, yeah, we're going to give the President of the power to shut down trade? I mean, think about the effects, but you're admitting that power's in there, but can't do a 1% tariff. That doesn't seem, but I want to get your answer, to have a lot of common sense behind it. I think it absolutely does because it's a fundamentally different power. It's not a donut hole.

It's a different kind of pastry. And on that power, that's a good one, on that power, though, And you've said this many times, and Mr. Katiel, too. 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's story, and Chief Justice Hughes in the 1933 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, there are a couple of points in there, and I'll 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 talk about a tariffing power, like you could use it to talk about a taxing power.

I mean, we impose taxes for regulatory purposes as well. But 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 context. That's exactly right. And I think the reason, getting back to common sense as to why a legislature might authorize 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 consequences.

Well, why is that? Because, I mean, there is a sort of common sense to go intuition. that one is, in Justice Kavanaugh's example, that one is greater and one is lesser. So 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. Actions that bring in revenue 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 creates a — Well, that seems a little tautological. Like, why is it that the revenue raisers are in a different category? Because, look, if there is some sort of international emergency, and the appropriate way to deal with it is to make sure that no more than a thousand of this product comes into this country at a particular time, this statute gives the President the power to ensure that no more than 1,000 come in at this time.

Setting a tariff doesn't ensure that only 1,000 will come into this country. It cedes control over whether the transaction occurs, and what it does is it then, you know, adds revenue to the Treasury, and that is, again, something that our framers thought was extremely important, and a core Article 1. But Algonquin, I mean, this kind of goes back to Justice Kavanaugh's point. Algonquin rejects the idea that it was impermissible to use 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 quantity. And I hear what you're saying is like, well, you can control quantity by numbers by imposing hard limits, but not by money.

But that's not what Algonquin said. So I guess why? Well, and I don't mean to suggest that you can't use. exactions to control quantity. What 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 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. And Algonquin — Do you think that just blocking all trade is a bigger deal than imposing a 1 percent tariff across the board? I think it would be a huge deal. It is just a different kind of deal.

Algonquin was not a constitutional case, right? It was a statutory interpretation case. Correct. And so the question there was simply was Congress actually trying to, 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 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, but also the context

of what else was in the statute and the fact that some of the factors that the President was supposed to be considering. Keep going. And it would make personal. And it would make perfect sense, I think, in a time of emergency, for many of the reasons that General Sauer pointed out that Congress would want the President to have the kind of authority that is imposed when you are embargoing things, when you are stopping the trade, when you are 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 a statute about giving the President control over assets, over transactions, over access to banking. And tariffs don't do that. You said something about tariffs, in fact, seed control over those sorts of things.

So they sort of undermine the goals and the purposes of this kind of statute. Is that right? Yes, that's exactly right. MR. Can I ask? MR. Go ahead. MR. 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? Yes. That's what it boils down to. MR. Yes.

of understanding what Congress would have thought it — what powers Congress would have thought it was conferring? Would Congress have understood the phrase regulating? 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 suspect about what's going on. 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 raise revenue, and that's our business, right? That's what it has to be. Yes, and we know that every other time that Congress has authorized the President.

Well, 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. There, would you have the same suspicion? Yes, absolutely. And again, I'll refer back to Justice Jackson's concurrence in Youngstown that emergency powers tend to breed emergencies. Look, Biden versus Nebraska, I think, says very clearly. I really don't think you're 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'm trying to say is that you have to read this 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? All right, I know. I know that point.

Let me ask you an unrelated question. Mr. Katyal listed some of the things that presidents have done under AEPA, such as screening imports. Do any of the other verbs in AEPA talk about screen — could screening of imports be done under any of the other verbs in AEPA? I think maybe, but it would have been — Which one? Prevent. And so I think the question would be... Screening is preventing? Well, I think it depends what you're screening for.

But if you were... Okay. How about imposing domestic requirements that are needed to safeguard domestic safety? Any other provision besides regulate? Any other verb besides regulate that would... Well, again, I think if we're talking about potentially blocking some property from coming into this country because of safety concern. It might be that Prevent would have gotten you there.

What I think Regulate does is it clarifies and amplifies that you don't just, you know, 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 Regulate harmonizes with Prevent, Investigate during the pendency, block during the pendency of an investigation, those sorts of. On the context point, the context of this statute, what Congress would have understood, it's an emergency statute.

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 country X, and you can stop all trade with that country. I mean, I'm not sure that's a wise policy to give that much, but it's there, right? You agree it's in this statute. But the president says, well, that's too extreme.

I want to calibrate my response to deal with this and maybe 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's 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 that is authorized. That just seems a bit unusual. You know, think about India right now, the tariff on India, right?

That's designed to help settle the Russia-Ukraine war, as I understand it. I don't pretend to be an expert. but if that's gone, you know, that's a tool that's designed, talking about foreign facing, the most serious crisis in the world. And that's out the window. So I just think it's just contextually emergency. It's just a bit unusual to read it that way. But I take your response.

Taxation's different, and you've got to stick with that line. No, and I don't think it's just that. I mean, I do think it's that. But it's also that there are 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 limits on particular kinds of products. It could be quantity. I get it. But in the history of trade efforts to respond and push back, you're taken one away. Well, and the President, and there are many other statutes that might apply depending on the exact circumstances,

201, 301, 232. Counsel, I think what 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 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.

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 under what circumstances? Now, with respect to this, I mean, I'm not even going to the pretext argument, okay? but the President threatened to impose a 10% tax on Canada for an ad it ran on tariffs during

the World Series. He imposed a 40% tax on Brazil because its Supreme Court permitted the prosecution of one of its former presidents for criminal activity. The point is, those may be good policies, 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, counsel. Did Mr. Cotill 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? Anything further? Mr. Cate briefly. Justice Gorsuch.

Thank you. So I just want to follow up on Justice Sotomayor's question at 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 the constitutional assignment. 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 pirates in America at the time. And Americans thought even Parliament couldn't do that, that that had to be done locally through our elected representatives. Isn't that really the major questions, non-delegation, 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. Cavillow? Can I just invite you briefly to address your kind of second-tier arguments, assuming that the President can impose these sorts of tariffs? Why do you think, for example, that the trafficking? 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. It is a — it is — if you think of it as a sanction, it is a sanction imposed against people importing lawful goods in the whole — Doesn't that indirect — 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 — the history of AIPA and even of TWA is imposing sanctions directly on the wrongdoers. These are statutes about providing sanction authority

against — against international actors whose behavior we want to change, and that's not what tariffs do. All right. Thank you. Thank you, counsel. 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, 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 imports. And so that additional phrase about, you know, by means of instruments, licenses or otherwise, really sort of reinforces the plain meaning, the ordinary natural meaning of regulated importation here. So when it comes just the plain text of the statute, 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 of our delegations of the Indian commerce power, and I just remind the court

that in 1790 in July of 1790, 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. And 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 the Indian tribes is not a foreign sovereigns, but this foreign facing situation, we have a very sort of deep profound historical pedigree to broad delegations of the regulation of commerce, right? The foreign commerce power, in that case, the Indian commerce power. And that ties, I think, to what I take

to be the main theme of the arguments on the other side. And I think that Mr. Catchell started by saying tariffs or taxes. 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 most effective use 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 our hollowed out manufacturing base, that 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 more, to get countries to change their behavior to address the foreign arising emergencies. So if you look for example, to take a historical example, 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 with a 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 taxes. They are not, they're not an exercise of the power to tax. They're the exercise of the power to regulate foreign countries. commerce. And that's why the statute says regulate. It doesn't say tax. It says regulate. 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 would be superfluous. And for all those reasons, we ask the court to reverse both the decisions below. Thank you, counsel. The case is submitted.