The justice commits some important logical fallacies along the way.
This is the fifth installment of my series on today’s big tariff decision — see here, here, here, and here for the first four.
The main dissent in Learning Resources was written by Justice Brett Kavanaugh, joined by Justices Clarence Thomas and Samuel Alito. Kavanaugh dissenting did not surprise me greatly; at the argument, while he didn’t give away where he was headed, he seemed the justice most sympathetic to the government’s argument for broadly deferring to presidential powers to negotiate with foreign countries.
Kavanaugh makes some reasonable-enough points about the long history of congressional delegations of tariff authority to presidents. There are fair arguments about extending the major questions doctrine to foreign affairs, or applying it in elevated fashion to the taxing power (Justice Neil Gorsuch’s concurrence placed him at the center of a nine-way storm over the doctrine). But Kavanaugh commits some important logical fallacies along the way.
The first is the idea that it is somehow curious that Congress would grant presidents the broad power to impose complete embargoes over trade, but not include the lesser power to tax that trade via tariffs. As I have explained previously, however; this makes sense for four reasons:
One is the unique history of taxation noted by Gorsuch: “The power to reach into the pockets of the American people is just different, and it’s been different since the Founding and the Navigation Acts that were part of the spark of the American Revolution.” The second is that the executive’s power to raise money without Congress undermines the leverage of Congress in inter-branch battles — a background that is especially obvious during a government shutdown. The third is that tariffs, precisely because they are a less dramatic power than an embargo, are more apt to be left in place for a very long time under the guise of an “emergency” that has been ongoing for half a century. And the fourth is that Congress has already given presidents quite a lot of levers in the tariff area outside of IEEPA, and it provided detailed rules of the road for how those tariff powers should be exercised.
A second, related fallacy is Kavanaugh’s reassurance that presidential permanent-worldwide-emergency powers are still constrained because Congress could show its disapproval by “not approving annual appropriations necessary for the Executive Branch to continue to implement the tariffs.” That can be a powerful way for Congress to strike back at many kinds of presidential overreaching. But there are two presidential power grabs that Congress can’t stop by defunding it: when the president raises revenue on his own without Congress, and when the president borrows money on his own without Congress. This is such a dangerous power precisely because it allows the president a slush fund with which to fund his own operations without appropriations. Parliaments and Congresses have long feared that executive power above all others. That’s exactly why courts should not lightly presume that the taxing power has been delegated when Congress didn’t say it was doing so.
The third fallacy, which I’ve also dismantled before at length, is Kavanaugh’s argument that “regulate” is effectively in all circumstances a synonym for taxation, because the constitutional commerce power has been read to include the power of regulatory taxes, because the Trading with the Enemy Act (TWEA) used the term, and because IEEPA arose from the division of TWEA into two similarly worded statutes, one for wartime and one for peacetime. But the power to tax trade with the enemy in wartime as a means of controlling it — a power the Court has long found to be part of a president’s Article II commander-in-chief power — is effectively a war power, and it is inherently limited by the fact that we typically don’t go to war simultaneously with the entire world and then continue that war forever. In other words, if TWEA didn’t give presidents that power, they would still have it — in war, as a war power. Whereas there is a mountain of statutory precedent both for laws that talk of regulation and do not grant taxing power, and laws that do talk much more specifically about tariff powers. In the phrase Justice Antonin Scalia was fond of using, we do not presume that Congress hid elephants in mouseholes — and the language of IEEPA is a mousehole.
Courts typically hate surplusage: legal conclusions that one word or provision in a law covers so much ground that it makes the whole rest of the law, or many other laws, redundant even when they deal much more specifically with the same subject and impose more constraints on the same power. That’s exactly the issue with IEEPA. Kavanaugh observes that “the relevant section of IEEPA contains 9 verbs and 11 objects, for a total of 99 combinations. We do not need to construe each word of the statute to ensure that it is perfectly aligned in all 99 pairings.” But his reading would strip quite a number of those verbs and objects of any practical consequence.
I’ve written here and here on the limitations of the support that Kavanaugh seeks to find in the Algonquin and Yoshida cases.
Kavanaugh is, of course, on solid ground in observing that “the Court’s decision might not prevent Presidents from imposing most if not all of these same sorts of tariffs under other statutory authorities,” and that therefore, “the Court’s decision is not likely to greatly restrict Presidential tariff authority going forward.” But the fact that so many other, explicit, carefully delineated presidential tariff powers exist in the United States Code is all the more reason not to read one so vast into such an ambiguous-at-best “emergency” law that none of those other tools need ever be used.