Many posts have dealt with tariffs and trade. U.S. Solicitor General D. John Sauer argued that the International Emergency Economic Powers Act gave Trump the power to impose tariffs.
JUSTICE GORSUCH: You're saying there's inherent authority in foreign affairs, all foreign affairs, so regulate commerce, duties and --and --and --and tariffs and war. It's inherent authority all the way down, you say. Fine. Congress decides tomorrow, well, we're tired of this legislating business. We're just going to hand it all off to the President. What would stop Congress from doing that?
GENERAL SAUER: That would be different than a situation where there are metes and bounds, so to speak. It would be a wholesale abdication.
JUSTICE GORSUCH: You say we --we -- we are not here to judge metes and bounds when the foreign affairs. That's what I'm struggling with. You'd have to have some test. And if it isn't the intelligible principle test or something more --with more bite than that, you're saying it's something less. Well, what is that less?
GENERAL SAUER: 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 way to approach it is a very, very deferential application of the intelligible --intelligible principle test, that --that sort of wholesale abdication of --don't like to --
JUSTICE GORSUCH: All right. So now you're admitting that there is some nondelegation principle at play here and, therefore, major questions as well, is that right?
GENERAL SAUER: If so, very limited, you know, very, very deferential --
JUSTICE GORSUCH: Okay.
GENERAL SAUER: --and limited is what --and, again, the phrase that Justice Jackson used is it just does not apply, at least --
JUSTICE GORSUCH: I know, but that's where you started off, and now you've retreated from that as I understand it.
GENERAL SAUER: Well, I think we would as our frontline position assert a stronger position, but if the Court doesn't accept it, then, if there is a highly deferential version --
JUSTICE GORSUCH: 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?
GENERAL SAUER: Well, we don't contend that. Again, that would be --
JUSTICE GORSUCH: Well, you do. You say it's unreviewable, that 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.
GENERAL SAUER: Maybe that's fair to say.
JUSTICE GORSUCH: Okay. All right. Thank you. (Laughter.)
