Trading Power: Tariffs and the Nondelegation Doctrine.

AuthorSilverberg, Cameron

Table of Contents Introduction I. The Shifting Fortunes of the Nondelegation Doctrine A. The Nondelegation Doctrine's Logic and History B. Explaining the Nondelegation Doctrine II. Nondelegation and Trade Policy A. The Counterargument: A "Selective Nondelegation Doctrine" B. Constitutional Text, History, and Purpose C. Congressional Practice D. Early Precedent III. Case Study: Trump's "National Security" Tariffs A. Section 232 and the Supreme Court B. Analyzing Section 232 IV. Implications: Trade Policy, Foreign Affairs, and Presidential Power A. A Nondelegation Test for Foreign Affairs Statutes B. Solving the "National Security Delegation Conundrum" Conclusion Introduction

On the morning of December 2, 2019, Argentinian and Brazilian leaders awoke to a startling message from the President of the United States. "Brazil and Argentina have been presiding over a massive devaluation of their currencies[,] which is not good for our farmers. Therefore, effective immediately, I will restore the Tariffs on all Steel & Aluminum that is shipped into the U.S. from those countries." (1) The message blindsided officials in South America and the United States: The Trump Administration previously had exempted Argentina and Brazil from the tariffs it began levying on steel and aluminum imports in March 2018. (2)

President Trump appeared to retract this threat a few weeks later. (3) But most trading partners have not been similarly spared. Through the end of the Trump Administration, the United States levied steel tariffs on all but six countries and aluminum tariffs on all but four (4)--tariffs that have continued under the Biden Administration. (5) More broadly, President Trump's Twitter-based pronouncement showed just how quickly U.S. trade policy can change. In the time it takes to tweet, the President can upend billions of dollars' worth of commerce and affect the lives of people across the planet who work in the targeted industries.

But trade policy was never supposed to be based on presidential predilection. To the contrary, the Framers knew that tariffs would affect each state in different ways, so they entrusted the tariff power to a deliberative body that represented the interests of a diverse coalition of states. (6) That is why Article I specifically states that "Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises ... [and] To regulate Commerce with foreign Nations." (7) Thus when Trump issued his steel and aluminum tariffs he was not acting under his own executive authority, but was instead using the power that Congress had delegated to the President. That delegation came from a relatively obscure statutory provision--section 232 of the Trade Expansion Act of 1962. (8)

Section 232 allows the President to impose tariffs and other restrictions on imports that "threaten to impair the national security." (9) The statute does not give a specific definition of "national security"; it instead directs the executive branch to consider a list of factors that includes "national defense requirements" and "the capacity of domestic industries to meet such requirements," along with "the close relation of the economic welfare of the Nation to our national security." (10) These factors are so broad--and the trade remedies available to the President so sweeping--that the statute could conceivably allow the President to tax or block any imported item under the guise of national security. (11)

This expansive grant of power leads to a thorny constitutional question: Are there limits on Congress's authority to transfer its power over trade policy to the President? On the one hand, under the nondelegation doctrine, Congress may not "transfer[] its legislative power to another branch of Government," and delegations are only permissible when "Congress has supplied an intelligible principle to guide the delegee's use of discretion." (12) But on the other hand, the Supreme Court held in United States v. Curtiss-Wright Export Corp. that the nondelegation doctrine is more lax in the realm of foreign affairs. (13) That tension between domestic and foreign policy delegations is particularly evident in Justice Gorsuch's dissenting opinion in Gundy v. United States, which called for a robust nondelegation doctrine in the domestic sphere while also noting that "Congress may assign the President broad authority regarding the conduct of foreign affairs or other matters where he enjoys his own inherent Article II powers." (14) Thus, the underlying question is about the scope of Curtiss-Wright's holding. If "Congress may assign the President broad authority regarding the conduct of foreign affairs," (15) how broad can that authority be?

Neither Curtiss-Wright itself nor subsequent Supreme Court decisions give a clear answer. Up to this point, the most straightforward response comes from Michael Rappaport, who argues that the nondelegation doctrine simply does not apply when it comes to foreign affairs and international trade. According to Rappaport, the "nondelegation doctrine does not apply uniformly across different areas of the law," and the Framers would have understood the President's "executive power" to include an independent power over foreign affairs and an unconstrained authority to receive delegations in this area of law. (16) Under this framework, statutes like section 232 would be free from scrutiny under the nondelegation doctrine. Section 232's vague "national security" criteria would pose no constitutional problem, because no criteria were needed in the first place.

As of now, no court or scholar has identified a clear, workable alternative to Rappaport's approach. Instead, judges and academics alike have hedged their language and avoided a specific answer: The nondelegation doctrine is said to be "largely irrelevant" in the foreign affairs realm, (17) and Congress can enact foreign affairs statutes that give the President "broad discretion" (18) or "broad authority." (19) These hazy phrases suggest there may be some foreign affairs statute that gives away too much authority to the President, but they never clarify what that statute might look like. In practice, it is hard to tell whether any daylight separates Rappaport's argument from its more evasive counterparts. The Supreme Court has gone eighty-six years since it last used the nondelegation doctrine to strike down a statute, and the Court has never used the nondelegation doctrine to invalidate a law pertaining to foreign affairs. (20) A successful foreign affairs nondelegation claim must therefore overcome the judiciary's general reluctance to invoke the doctrine and its particular reluctance to invoke the doctrine in the foreign affairs realm. Accordingly, Rappaport's position is essentially the status quo: Without a coherent method of determining when a trade statute violates the nondelegation doctrine, courts are exceedingly unlikely to use the doctrine to rein in these statutes.

This murky status quo cannot continue. President Trump launched a global trade war using vague and expansive statutes like section 232. (21) If these kinds of statutes are indeed exempt from the nondelegation doctrine, then courts should make that clear. And if they are not exempt, then courts should specify a clear limit on Congress's authority to delegate in areas of foreign affairs like trade. In other words, courts should have a coherent and consistent way of resolving nondelegation claims made against trade statutes--particularly given the Supreme Court's interest in bringing the nondelegation doctrine back to life. (22)

This Note argues that Congress may indeed make broad delegations to the President to conduct trade policy, but that it cannot give away all of its authority over trade. To the Framers, the power to levy tariffs and regulate foreign commerce was first and foremost a matter of domestic policy: It was the power to raise revenue and protect nascent industries. (23) And because this power would profoundly impact the nation's budget and economy, it was specifically given to Congress, the most representative branch of government. (24) That fundamental allocation of power cannot be revised by statute. Constitutional text, history, and precedent all show that Congress is forbidden from enacting a law that gives all of its authority over trade to the President. (25) Thus, when a statute can be understood as transferring all such authority to the executive branch, it should not be saved from constitutional scrutiny simply because it falls under the vague umbrella of foreign affairs.

This Note makes its argument in four parts. Part I offers a legal backdrop, showing how the Supreme Court has waxed and waned in its enthusiasm for the nondelegation doctrine--and how a recent article by Cary Coglianese helps makes sense of this seemingly inconsistent precedent by showing that delegations are permissible so long as they do not entail a wholesale transfer of any one of Congress's enumerated powers. Part II draws on constitutional text, history, and precedent to demonstrate that, in contrast to what Rappaport has argued, the same logic applies to Congress's enumerated authorities over foreign affairs. Part III provides a case study, explaining how section 232 raises a nondelegation issue because it can be understood to give all of Congress's authority over trade to the President. Part IV explores the Note's implications, laying out a test that courts can use to decide whether a foreign affairs statute runs afoul of the nondelegation doctrine and examining how this test can constrain the accumulation of executive power in foreign affairs.

  1. The Shifting Fortunes of the Nondelegation Doctrine

    The nondelegation doctrine looms over administrative law, but it has been used only twice to strike down a statute. (26) This Part explains the Supreme Court's evolving approach to nondelegation: how the doctrine came to prominence in 1935 and how it has receded over...

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