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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.

Reader Discussion

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on December 18, 2018 at 11:56:04 am

I don't disagree with the general point about Congressional abdication, but tariffs are just a chapter in a long novel with this plot. What I can't tell is whether the writer's objection to Trump's tariffs are merely doctrinal-libertarian, or are to do with these specific tariffs only. Because I thought that the purpose of Trump's tariffs is to incentivize other countries to lower or drop their own tariffs on certain US goods and services. Is that not true? If it is true, then it seems to me the issue ought not be decided on the basis of scripture but on an assessment of each tariff singly: what is it costing US businesses and employees? what is the tariff against which it is directed? What would be the estimated benefits to US business and employees were the other nation to revoke or lower that tariff? Maybe if we have that sort of analysis we could determine whether the present sacrifice--which presumably must be made in any war, including a trade war--is worth it.

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QET
on December 18, 2018 at 12:42:52 pm

QET:

I agree that from a policy / pragmatic perspective, the tariffs are quite acceptable.
I suspect, however, that Greve is here concerned with not the policy implications but rather the legal-constitutional issues.
Is it the role of the Executive to impose tariffs?
Is this, as in so many other examples, a proper use of Legislative discretion to delegate legislative powers (should that power even exist)?
Is it the proper role of the Judicial to make such determinations even if, and when, as Greve suggests the Legislative views the exercise of its inherent Legislative authority with great circumspection.
(As i grow ever more cynical, I can not help but wonder if the Court in its continuing efforts to aggrandize itself has not selectively arrogated to itself the right to determine proper policy and uses the "delegation" doctrine, i.e., the Court's refusal to enforce it, to provide itself with an ever growing opportunities to make judicial (read: legislative) determinations.

For an example of the courts "making" opportunity for themselves , there is this:

https://www.nationalreview.com/bench-memos/this-day-in-liberal-judicial-activism-december-18/

wherein the court determines that the Legislative may not set limits on non-economic damages because it would limit the Judicial's ability to limit excessive verdicts. Yeah, RIGHT!

My own take is that the tariffs and other non tariff actions are both justified and LONG overdue.
I wish, and I suspect Greve agrees, that the Legislative Branch would, as Greg Weiner repeatedly reminds us, assert its' *institutional prerogative* and actually Legislate in this area.

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gabe
on December 18, 2018 at 13:42:53 pm

Yes, I agreed right off that the separation of powers issue is important, but he clearly sneers at Trump's tariffs, as do many on this site and elsewhere, and I was just wondering why.

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QET
on December 18, 2018 at 16:17:04 pm

[…] GMU Law’s Michael Greve calls on U.S. courts to grow a backbone. A slice: […]

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Some Links - Cafe Hayek
on December 18, 2018 at 17:38:47 pm

Terrific little legal analysis, much more verbally-facile, impressive intellectually and literarily artful than the saccharine-nostalgia of Greve's footed-mouth over-endorsement of the ideologically-challenged "The Bruce." Jesus, Socrates, Michelangelo, The Babe and Michael (Jordan) have earned the right to be universally called and universally recognized solely by their 1st names. "Springsteen" is OK, not "The Bruce."

As for the miraculous recent resurrection by some lower federal courts of the delegation doctrine and other more opaque limiting principles (sic) to fit the political sensitivities of the Age of Identity by limiting the president's mobility even on ranges where he's expressly free to roam, all one can say is, "These are Obama judges" (sorry CJ) who know well that their political priorities trump their constitutional duties, most especially and with special, real animus when those political priorities can be read both as robed virtue signaling to trump Trump's perceived animus and as balm to soothe the Democrats' self-inflamed "fear and loathing (of) the (Trump) campaign trail."

Lastly, while I strongly disagree with Greve's policy take on the tariffs (and his and this web blog's boringly repetitious, offensively predictable, petty, knee-jerk abuse of coy anti-Trumpian language) and think the tariffs an important strategic component of a long and dangerously-delayed national defense counter-offensive (much like June 6, 1944 was to December 7, 1941,) as to the constitutional offensiveness of the ridiculously open-ended delegation of presidential authority under Section 232 (of what Greve would like to rename "The Trade Contraction Act,") I would say: 1) "Why all the heartburn from that particular meal?" when digesting it is no more gastronomically-challenging (or constitutionally-offensive) than swallowing the bottomless delegations of Congressional War Powers to the President and of the full panoply of Congressional powers over commerce to the Administrative State, including the power to regulate the environment, public health, taxes, fiscal, monetary and other matters of economic policy and civil rights? and 2) that constitutionally-excessive delegation to the president and to the Congressionally-created bureaucracy is the norm, Congressional timidity and on-the-job legislative lethargy are the rule, and the Founders' constitution be damned.

Everybody's got a hungry heart. Have some sympathy, after all.
Those guys are too busy running for office to run their offices.

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Pukka Luftmensch
on December 18, 2018 at 17:51:10 pm

Springsteen might even say, in deference to the reality of the matter, that a Congressman is "born to run" for office, not "born to run" an office.

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Pukka Luftmensch

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.