In Learning Resources v. Trump, the district court suggested that, to empower the President to impose tariffs, Congress must do more than empower the President to “regulate . . . importation.”  Congress must instead use different “words,” like “‘tariffs’ or ‘duties,’ their synonyms, or any other similar terms like ‘customs,’ ‘taxes,’ or ‘imposts.’”  The district court came to that conclusion after sharing its view that imposing tariffs required an exercise of taxation power, rather than commerce-regulation power.  But as I explain in a new law review essay, the district court’s taxation/regulation dichotomy was deeply flawed. 

Originalist evidence and Supreme Court precedent make clear that tariffs are a traditional and familiar means of both raising revenue and regulating commerce.  Thus, by empowering the President to “regulate … importation,” the International Emergency Economic Powers Act (“IEEPA”) is properly understood as empowering the President to “regulate … importation” through a common means of regulating commerce: tariffs. 

For a court to read a statute as withholding tariff authority because the statute does not use the magic word “tax” is to mistakenly assume that tariffs must be a form of taxation, rather than regulation.  And to require that a statute use other judicially favored words, like “tariffs,” is to ignore that tariffs are a traditional and familiar means of regulating commerce. 

In this post I explain some of the problems with the district court’s taxation/regulation dichotomy.  In doing so I draw from my essay in the Harvard Journal of Law and Public Policy Per Curiam.  I encourage readers to read that essay for a more thorough analysis.

Flaws in the District Court’s Analysis

In Learning Resources v. Trump, the United States District Court for the District of Columbia (Judge Contreras) wrote that “the power to regulate is not the power to tax,” and the “Constitution recognizes and perpetuates this distinction.”  That much is correct; the Constitution’s Taxation Clause is indeed distinct from the Constitution’s Commerce Clause.  But the district court erred when it went on to reason that, because the two powers are distinct, it means that tariffs must be an exercise of the taxation power. 

The founding generation understood that tariffs could be imposed either as a means of raising revenue or as a means of regulating commerce.  Professor Robert Natelson explains that “[d]uring the founding era, commercial regulation was understood to entail financial impositions,” and so a “legislature might adopt an imposition purely for regulatory purposes—by, for example, levying tariffs high enough to inhibit foreign imports and thereby protect domestic producers” (emphases added).  And the Tariff Act of 1789 was enacted both “for the support of government” (i.e., revenue raising) and for “the encouragement and protection of manufacturers” (i.e., regulating commerce).  What’s more, the Supreme Court has recognized the overlap between taxation and commerce regulation.  For example, in Bd. of Trs. of Univ. of Illinois v. United States (1933), the Supreme Court wrote that even though “the taxing power is a distinct power, and embraces the power to lay duties, it does not follow that duties may not be imposed in the exercise of the power to regulate commerce” (emphasis added).

The district court was therefore mistaken in Learning Resources when it concluded that tariffs had to be an exercise of Congress’s taxation power.  And from that mistaken conclusion, the court offered a series of similarly misguided arguments.   Consider three of those arguments.

Chief Justice Marshall. The district court quoted Chief Justice Marshall’s statement in Gibbons v. Ogden (1824) that “the power to regulate commerce is … entirely distinct from the right to levy taxes and imposts.”  But that quotation simply highlights that the taxation power and commerce-regulation power are distinct; it does not support the follow-on argument that tariffs must be an exercise of the power to tax.  To the contrary, one need only to keep reading Gibbons, where Marshall recognized that “the right to regulate commerce … by the imposition of duties, was not controverted.”  Although it was true that duties “may be … imposed with a view to revenue,” Marshall explained that it was also “true that duties may often be, and in fact often are, imposed … with a view to the regulation of commerce.”

Independent Effect.  The district court reasoned that, “[i]f imposing tariffs and duties were part of the power ‘[t]o regulate [c]ommerce with foreign [n]ations,’ then [the Taxation Clause] would have no independent effect.”  But that logic does not hold. By empowering Congress to impose tariffs both for raising revenue and for regulating commerce, the two clauses allow for Congress to impose tariffs in various settings.  The overlap does not make either power superfluous.  As James Madison explained, “it was quite natural, however certainly the general power to regulate trade might include a power to impose duties on [trade], not to omit [the power to impose duties] in a clause enumerating the several modes of revenue authorized by the Constitution.”  Such “[p]leonasms, tautologies [and] the promiscuous use of terms [and] phrases” were found throughout the Constitution.

Dictionary Definitions.  The district court also cited dictionary definitions of “tariff” and “regulate.”  Because these definitions were relatively contemporaneous with IEEPA’s 1977 enactment, they offer evidence of IEEPA’s original meaning.  But the definitions do not support the district court’s position that tariffs have to be an exercise of the power to tax. 

The definitions flagged by the district court maintained that “[t]o regulate something is to ‘[c]ontrol by rule’ or ‘subject to restrictions,’” whereas “[t]ariffs are, by contrast, schedules of ‘duties or customs imposed by a government on imports or exports.’”  So far, so good.  But the district court erred when it sought to smuggle in a revenue-raising limitation to the definition of tariff. 

As the district court argued after quoting the dictionary definitions: “To regulate is to establish rules governing conduct; to tariff is to raise revenue through taxes on imports or exports.”  But look again at the dictionary definition of tariffs.  That definition does not limit tariffs to “schedules of duties or customs imposed by a government on imports or exports for the purposes of raising revenue rather than regulating commerce.”  What is more, the dictionary definition of regulate (i.e., to “control by rule or subject to restrictions”) is consistent with the traditional understanding of tariffs as a tool for commerce regulation.  As Jack Goldsmith notes, “a schedule of government duties on imports is a form of government control over imports by rule or an example of the government subjecting imports to restrictions” (emphasis added).

Nondelegation and Major Questions

The above analysis demonstrates why tariffs are properly understood as a traditional and familiar means of regulating commerce.  But of course, the Commerce Clause empowers Congress—not the President.  Thus, for Congress to statutorily delegate some of its Commerce Clause authority to the President, the statute must abide by the nondelegation and major questions doctrines.  IEEPA’s delegation of tariff authority is consistent with both doctrines.

I have been a vocal defender of the nondelegation doctrine.  But the nondelegation principle applies differently to different powers.  For example, the nondelegation principle permits Congress to delegate power much more freely in the foreign affairs context (where the President has significant power) than in the domestic context. 

As the Supreme Court explained in United States v. Curtiss-Wright Export Corp. (1936), “[i]f embarrassment . . . is to be avoided and success . . . achieved” in “international relations,” then “congressional legislation which is to be made effective through negotiation” with international partners “must often accord to the President a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved.”  More recently, Justice Gorsuch cited a “foreign-affairs-related statute” as an example of a “permissible” delegation of “lawmaking,” “given that many foreign affairs powers are constitutionally vested in the president under Article II.”  In writing as much, Justice Gorsuch cited to the Supreme Court’s decision in Cargo of the Brig Aurora v. United States (1813), where the Court upheld a statute that gave the President authority over foreign imports.

As to the major questions doctrine: If that doctrine is a substantive canon promoting the Constitution’s nondelegation principle (as Justice Gorsuch seems to think), then the doctrine should be as sensitive to the foreign affairs context as the underlying nondelegation doctrine is.  Alternatively, if the major questions doctrine is a linguistic canon (as Justice Barrett seems to think), then part of the “contextual evidence” one must consider when interpreting a delegation is the fact that the President has significant foreign affairs authority of his own.  Similar to how a “babysitter” is properly understood as having major authority to take the kids on a “multiday excursion to an out-of-town amusement park” if context reveals that “the babysitter were a grandparent” with underlying authority over the child, the President’s independent foreign affairs authority should lead courts to anticipate that statutory delegations to him in the foreign affairs context include “major” authority in the ordinary course. 

Moreover, the major questions doctrine is properly understood as limiting executive claims to “unheralded” statutory authority.  That distinguishes the tariff litigation from past major questions cases because IEEPA’s statutory precursor—which in relevant part contains materially “identical” language to IEEPA—has been judicially recognized as granting the President tariff authority for the last fifty years.  Thus, it has long been understood that, by empowering the President to “regulate … importation,” statutory language empowers the President to regulate importation through a traditional and familiar means: tariffs.

Chad Squitieri is an Assistant Professor of Law at the Catholic University of America’s Columbus School of Law, where he serves as Director of the Separation of Powers Institute and as a Managing Director of the Center for the Constitution and the Catholic Intellectual Tradition.