Thomas’s views are always worthy of respect and careful consideration, even to those of us who saw this as a comparatively easy case that came out the right way.
This is the fourth installment of my series on today’s big tariff decision; see here, here, and here for the first three. I’ll deal briefly here with the lone dissent by Justice Clarence Thomas, who also (along with Justice Samuel Alito) joined the main dissent by Justice Brett Kavanaugh, which argued that IEEPA’s language invoked traditional tariff powers.
Thomas, as is so often his wont, wrote alone with bigger game in mind: to argue, against the majority’s concern for presidential seizure of the most central congressional power, that a vast delegation of tariff power is actually “consistent with the separation of powers as an original matter.” Thomas’s views on the original Constitution are always worthy of respect and careful consideration, even to those of us who saw this as a comparatively easy case that came out the right way.
Thomas argues — in a point he suggested as far back as 2015 — that the nondelegation doctrine is actually limited to delegations of “core legislative power, which is the power to make substantive rules setting the conditions for deprivations of life, liberty, or property,” and that regulation or taxation of foreign commerce was not traditionally considered to fall within these categories. Thus, Thomas contends, if IEEPA contains the broad delegation that concerned the majority, it is constitutional — and, moreover, because Thomas views this as a power customarily delegated, the majority was mistaken in effectively applying a presumption against finding it delegated without explicit language doing so.
I confess, reading Thomas on this, that I need to delve more deeply into the scholarship on this point, but it seems profoundly counterintuitive — and alarmed Justice Neil Gorsuch, who described it as “sweeping” — to conclude, as Thomas does, that the power to tax is not a “core legislative power,” given that assertion of the power to tax is not only the very first power granted to Congress, it’s the foundation of representative legislatures in the first place — the British Parliament, the French Estates-General, etc.
Thomas takes a limited view of what economic rights are protected from executive power, if delegated by Congress:
The government can charge money for privileges without depriving a person of property for due-process purposes. The government charges people money every day for a wide range of activities, such as to enter a government park, mail an envelope, apply for a copyright, or file a lawsuit. . . .
A person had no core private right to import goods at the founding. On the Founders’ understanding, statutes allowing importation of goods from abroad were thought to create mere privileges rather than core private rights. . . . Foreign commerce was governed by the law of nations, which is a law of sovereigns, not of private individuals. [Citations and quotations omitted.]
For that matter, Thomas contests the “no taxation without representation” view of the history of the tariff power:
Although Colonial Americans staunchly contested efforts by Parliament to ‘tax’ them, they often conceded the authority of the British government to regulate commerce through financial exactions, including “prohibitory tariffs.”…In the most widely read and universally approved response to the Stamp Act, . . . Daniel Dulany wrote: “A Right to impose an internal Tax on the Colonies, without their Consent for the single Purpose of Revenue, is denied; a Right to regulate their Trade without their Consent is admitted. The Imposition of a Duty, may, in some Instances, be the proper Regulation.” . . . Likewise, Benjamin Franklin famously conceded Britain’s right “of laying duties to regulate commerce,” but rejected its power to “lay internal taxes.” [Citations and quotations omitted.]
Gorsuch is concerned that Thomas’s broad view of permissible delegation “would require us to reimagine much of our case law addressing Article I’s Vesting Clause.” Which is true, but that has rarely stopped Thomas, and for that matter, there’s a fair amount of misguided precedent that would also need to be rolled back in order to adopt Gorsuch’s more vigorous view of the nondelegation doctrine. Thomas does have the better argument that, under existing precedent, the Court has allowed a lot of delegation of tariff power to presidents. No such delegation has been as sweeping as the power claimed by Trump here, however, and the Court’s reading of IEEPA relieved it of the need to decide that question.
In the end, while he sees the “how” questions differently from the majority, Thomas’s view of the constitutional questions here still comes back to the statutory question of what Congress delegated in IEEPA. For that, we must consider the Kavanaugh dissent.