The Third Branch Meets the Tariff Man

Alan Morrison is a life-long liberal; a man of great insight and integrity; and one of the best lawyers I’ve had the privilege to learn from and, on one occasion, to work with. He is best known as the mastermind of Chadha v. United States, a seminal separation-of-powers case that dinged the “legislative veto.” Come December 19, he and his comrades will argue another important separation-of-powers case, involving trade policy and filed in the Court of International Trade on behalf of corporate clients (American Institute for International Steel, Inc. v. United States). The plaintiffs’ principal contention—indeed their only contention—is that Section 232 of the hilariously misnamed Trade Expansion Act of 1962 delegates excessive authority to the Executive and is therefore unconstitutional.

I’m with Alan. Alas, adverse precedents on this issue are as numerous as they are awful, and I fear that the federal courts will be of no help. They’ve fallen all over themselves in cranking up constitutionally unhinged, we-too-are-the-Resistance doctrines to rope in this President. In contrast, there seems to be no serious judicial interest in revisiting wayward doctrines and precedents, emphatically including delegation, that permit this or any other president to run the government like it’s the Cosa Nostra. Both orientations strike me as misguided, but hard to reverse. Start with the trade business:

In a series of Proclamations President Trump has slapped tariffs on certain imports, including steel and aluminum. The intellectual basis for these measures is what the President claims to have learned at the Wharton School, which has never had a better student. The legal basis is the aforementioned Section 232. It empowers the President to ”adjust imports” upon a finding by the Secretary of Commerce that imports endanger “national security”—which under the statute, as written, could mean absolutely anything (go read it). It then permits the President to impose tariffs at any rate, on absolutely anything and anyone; to impose import quotas (ditto); to rescind trading licenses; whatever. All in his absolute, unreviewable discretion.

When Mr. Trump instigated his splendid little trade war, a few intrepid legislators mused that perhaps, Congress should do something by way of limiting the Executive’s unilateral trade powers. But it turned out quickly, and yet again, that Congress will not perform an unnatural act (i.e. legislate). Hence, this lawsuit.

To the plaintiffs’ frontal challenge to Section 232 as an unconstitutional delegation of legislative power, the Department of Justice replies that the Supreme Court has already held Section 232 constitutional. That’s a 1976 case called Federal Energy Administration v. Algonquin SNG, Inc. It’s not decisive because you can distinguish or rely on it as you want. The government’s further objections are the stuff of a first-year ConLaw class. (1) Constitutional delegation requires no more than an “intelligible principle,” which is plainly found in Section 232 because it’s found everywhere. Rote cites to J.W. Hampton (a tariff case); Yakus v. United States; a half-dozen other cases; rote ridicule of A.L.A. Schechter Poultry (the last case, in 1935, to find a lack of such a principle). (2) Delegation is no more troublesome when Congress delegates the power to tax rather than to regulate. Rote cite to Skinner v. Mid-America Pipeline Co. (3) None of the non-delegation jazz matters where the President’s inherent powers over foreign affairs combine with and are augmented by Congressional legislation. Rote cites to Curtiss-Wright and Justice Jackson’s Youngstown burble (a/k/a the Steel Seizure Case).

So why might Section 232 be unconstitutional, nonetheless? For the sake of brevity, I’ll combine the plaintiffs’ arguments with a few wrinkles of my own: (1) Section 232 places no limits on executive discretion either on the “trigger” to invoke executive measures or on what those measures might be; that takes this provision a million miles outside J.W. Hampton. (2) Delegation worries are heightened because there’s no orderly administrative process. The Secretary’s required findings come without notice and comment; they’re unreviewable; and if the Secretary doesn’t find what the President wants him to find, he’s fired. (3) Delegation concerns are further heightened because the President’s Proclamations—i.e. tariff orders—are judicially unreviewable under the APA, or otherwise. (They’re certainly not reviewable in pre-enforcement proceedings. They may not even be subject to challenge in enforcement actions, when somebody goes to jail or loses his license.) (4) There’s a process, so called, to file for tariff exemptions. But the Secretary can act, or not act, on applications (some 20,000 are pending) as he pleases, and the decisions are again unreviewable. (5) Delegation concerns are at their zenith when a statute purports to grant the President unbridled authority to punish or reward private actors across the entire economy.

Can I give you a case that puts these pieces—scope of delegation, lack of process, non-reviewability, broad economic impact and potential for abuse—together and then says, “unconstitutional”? Absolutely: Schechter Poultry. But in order to resurrect the teaching of that case, and so to make sense of the non-delegation doctrine, courts would actually have to put the constitutional pieces together, instead of looking for magic words that signal an ever-present “intelligible principle.” I doubt that that can be done any time soon, least of all in this context. Indeed, the only justice (Clarence Thomas) who has attempted to re-connect the non-delegation doctrine to the over-all constitutional architecture has also suggested that the basic precepts might not apply to statutes dealing with fer’ners.

Now contrast the judicial reticence to revive once-conventional constitutional limitations even in the era of Trump with the courts’ approach to the administration’s immigration policies—like trade, a subject that involves external relations; like trade, a domain where inherent executive powers are amplified by exceptionally broad statutory delegations; and, again like trade, one of the few issues this President, for good or ill, actually cares about. And lo, in countless immigration cases, on any legal question I can think of (standing to sue, reviewability, the scope of injunctive relief), judges have fabricated executive-limiting doctrines that I’ve never seen or heard of before. By way of a single convenient example, several appellate courts held that the administration’s final “travel ban,” while admittedly lawful, was nonetheless unconstitutional because—why, because the Donald’s tweets and campaign speeches proved that the ban was prompted by an impermissible “animus” and anti-Muslim “bigotry.” This position received four votes on the Supreme Court. Seriously?

Res ipsa: a quick Westlaw search shows that any judicial opinion with the word “animus” is demonstrably nuts (see, e.g., Romer v. Evans (1995), holding that democracy is unconstitutional especially when it’s practiced in the states). Worse, the idiotic “animus” argument here rests on a patently false premise. The Saudis are Muslim; yet they and their crown prince have no better friend than the Donald. And it’s not like MAGA man has singled out Muslims: he has said very bad things about every class of people, including Canadians.

This is postmodernist jurisprudence: Whatever it takes (Mr. President), but don’t be mean. Even as the robed guardians of the constitutional order meticulously count and dissect a blowhard’s tweets, they let the executive—even this singularly transactional President, and therefore any future president—mess around with the entire U.S. economy and thousands of private enterprises in a law-free zone.

You can’t expound on this incongruity in a brief for the Court of International Trade. But it’s the backdrop against which Alan Morrison & Co will make their arguments. Good luck, my man.