Trump's Emergency Tariffs: Court Says Legal, But Are They Constitutional?

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's International & National Security Law Practice Group, was recorded on Tuesday, April 30, 2019, during a live teleforum conference call held exclusively for Federalist Society members.     

 

Wesley Hodges:  Welcome to The Federalist Society’s teleforum conference call. This afternoon’s topic is “Trump’s Emergency Tariffs: Court Says Legal, But Are They Constitutional?” My name is Wesley Hodges, and I’m the Associate Director of Practice Groups at the Federalist Society.

 

As always, please note that all expressions of opinion are those of the experts on today’s call.

 

Today, we are very fortunate to have with us an accomplished panel on this subject. With us today is Professor Timothy Meyer, who is a professor of law at the Vanderbilt Law School. Also with us is Professor Jide Nzelibe, who is professor of law at the Northwestern Pritzker School of Law. And our moderator today is Professor Jeremy Rabkin, who is professor of law at the Antonin Scalia Law School at George Mason University.

 

After our speakers give their remarks today, we will move to an audience Q&A, so please keep in mind what questions you have for this case or for one of our speakers. Thank you very much for sharing with us today and moderating. Jeremy, the floor is yours.

 

Prof. Jeremy A. Rabkin:  Okay. Thank you very much. So Tim Meyer, you have been involved in this case working on the brief for the plaintiffs, the American Steel Institute, from the beginning. Maybe you could set this up for us -- how this came about, what came out of the CIT ruling and where do you think it’s going, just as a matter of litigation?

 

Prof. Timothy Meyer:  Sure. So I think probably most of our listeners are familiar with just the factual backdrop, in terms of the President imposing 25 percent tariffs on steel and 10 percent tariffs on aluminum. The genesis for the legal theory in the case has really been a renewed interest in the nondelegation doctrine and, in particular, the Supreme Court’s decision to grant cert in a case called Gundy, which is pending. We’re waiting for a decision, I think, really any day know. It’s a nondelegation challenge and appears as if it could be the first time the Court has struck down a federal statute on nondelegation ground since the 1930s.

 

With that backdrop, we filed suit challenging the constitutionality of Section 232 on nondelegation ground. And the Court of International Trade ruled in the government’s favor, I guess, about a month ago. And they really had two questions in front of them. The first question, of course, is just the question we presented, which is does Section 232 violate the nondelegation doctrine because it lacks an intelligible principle that would constrain the President’s exercise of authority over the economy?

 

But the second question was whether or not the Supreme Court’s decision in a 1976 case called Algonquin, which also dealt with Section 232, foreclosed the lower courts from considering the merits of this case. So what you got out of the Court of International Trade were two opinions. A majority opinion that dealt primarily with the presidential question -- whether or not the Supreme Court’s opinion in Algonquin controlled the outcome of the case here.

 

And Judge Kelly, writing for the majority, held that the Algonquin opinion does, indeed, control. Judge Kelly expressed some doubts about whether or not Section 232 is constitutional, if the Court were able to reach the merits, but ultimately concluded that the Court was not able to reach the merits. Judge Katzmann wrote a separate opinion that he styled an opinion dubitante, in which he agreed with his colleagues that the Algonquin case controls the outcome here but went on to essentially say that, in his view, Section 232 does indeed violate the nondelegation doctrine. And he went so far as to say, if Section 232 doesn’t violate the nondelegation doctrine, then what does?

 

So with that backdrop, we’ve now appealed the case. Appeals from the Court of International Trade run to the federal circuit in the ordinary course, but we have filed a petition for certiorari in advance of judgement with the Supreme Court, with the idea that we would proceed directly there. There’s a funny procedural aspect of the case which is that the CIT granted us a three court -- three-judge court, on the grounds of a substantial constitutional question. And normally, if that had happened in sort of an ordinary district court, the appeal would run to the Supreme Court.

 

It’s not obvious that the Court of International Trade is subject to those same kinds of statutes, so we’re proceeding via this petition for a rite of certiorari in advance of judgement.

 

Prof. Jeremey A. Rabkin:  Just a quick technical question here. So you’re expecting a decision from the Supreme Court on the nondelegation doctrine, and that could be in June? I mean, this term, right?

 

Prof. Timothy Meyer:  It should be this term. So Gundy was argued in October. I think it was before Justice Kavanaugh was confirmed. So I think it’s the last case that’s outstanding still from the October term, and we should have it before June or by June.

 

Prof. Jeremey A. Rabkin:  Does that affect the timing of this? Can the Supreme Court delay the ruling on the certiorari petition until it’s decided this case?

 

Prof. Timothy Meyer:  Of course, it can delay. I think the way the timing is likely to work -- to wind up working, they wouldn’t be in a position to really have to do too much to make it line up. The government’s response is not due until, I think, the middle of May to our petition. So by the time that they really get it scheduled, I think they’ll probably have a pretty good idea what they’re going to do in Gundy.

 

Prof. Jeremey A. Rabkin:  And do you think your hopes turn decisively on the outcome in Gundy? I mean, if the Supreme Court says, “No, sorry. 1935 remains the last year when we upheld the nondelegation doctrine,” does that mean that you’re just completely out of luck?

 

Prof. Timothy Meyer:  I think Gundy is certainly going to be incredibly important for the disposition of this case. I think that we have a pretty compelling argument that Section 232 does violate the nondelegation doctrine. There is -- and you may be able to talk a little bit more about this. But there is really nothing in the statute that constrains the President from regulating virtually any aspect of any product that is imported into the United States.

 

So I think on the substance, we’ve got a pretty good argument. Now, of course, if the Court isn’t willing to go down the nondelegation road, then they’re not willing to go down that road. But Gundy’s a different case. It involves a criminal statute, so it presents some issues that I think we’d be in a position to distinguish.

 

Prof. Jeremy A. Rabkin:  And would you just say in a word you are hopeful, confident, hanging by a thread? How do you feel about your prospects?

 

Prof. Timothy Meyer:  The prospects for the petition?

 

Prof. Jeremey A. Rabkin:  Well, I should say the prospects of the plaintiff -- of the American Steel Institute.

 

Prof. Timothy Meyer:  No, I think we’re optimistic. I think when you read the CIT’s opinion, it’s clear, I think, that all three judges had doubts about the constitutionality of Section 232. And they’re a lower court, so I think they felt that they were constrained. The Algonquin case is kind of a funny case because what had happened was the D.C. Circuit had ruled on statutory grounds that the action the President had taken -- at issue was a regulation of oil courts via licensing fees. And the D.C. Circuit had said that that remedy was not available under the statute.

 

And the Supreme Court on appeal -- on certiorari -- was presented with that statutory question. It actually wasn’t presented. They didn’t grant cert on a constitutional question. But it was presented with the argument that nondelegation concerns counseled in favor of construing the statute narrowly. And the Court rejected that argument and said that the statutory -- construction of the statute didn’t require a narrow constitutional avoidance, essentially. It didn’t require construing the statute narrowly. And that’s the language that the government has really relied on.

 

I think if you’re a lower court, that language is from the Supreme Court -- dictated from the Supreme Court to a lower court just like a holding. And I think you saw that come through in the CIT’s opinion. But I think we feel pretty confident that, once we get to higher levels of appeal, that courts are really going to look at the merits of the nondelegation claim.

 

Prof. Jeremy A. Rabkin:  Good. So just before we go on, Jide, did he leave out anything that you want to add or qualify?

 

Prof. Jide Nzelibe:  I think, yes. I think the additional qualification that the Gundy case is a criminal case and had to do with the Attorney General’s interpretation -- I think that’s important because maybe the concern there would be can you delegate this kind of authority, if it involves criminal sanctions. So that case may be suit generis in its own way, but I think Tim mentioned that.

 

Prof. Jeremy A. Rabkin:  All right. Let me start with you because I want to raise a different question here which is do you think -- so let’s back up for a second. This statute from 1962 which authorizes the President to impose emergency trade measures -- and it speaks about national security. And you might think, “Well, since this is pursuant to a statute that involve national security, the President should be understood to have very broad powers.” This is a kind of Curtiss-Wright style case. And I just first want to ask you does that seem compelling to you or even plausible?

 

Prof. Jide Nzelibe:  No, I think it is compelling, but it’s not only that, I think. It’s not only the national security. It also involves trade. So you can imagine the international trade. So you can imagine it involves two intersections of what you would call foreign affairs powers -- one international trade where the President doesn’t have some concurrent power with Congress, another a national security where the President is recognized to have broad powers. I think that’s very important.

 

Why I say it’s very important is that, in many cases where this issue has come up, foreign policy is not implicated at all. Let’s say if you take the Whitman case—American Trucking Association v. Whitman—that’s sort of like the President’s authority to define -- or I mean, APA’s authority to define what’s, I think, in the interest of public health, or something like that. That doesn’t involve any national security or foreign policy issues, so you might assume that that’s where the Executive Branch’s powers are sort of not -- are sort of at a low ebb. I think, in this particular case, it’s probably even more pronounced because it involves the intersection of both national security and international trade.

 

Prof. Jeremy A. Rabkin:  Yeah. So I just want to pursue this with you for a few minutes. I’m totally open-minded about this, but my first doubt is why is this a presidential responsibility? It’s in Article I, Section 8, that the Congress has the power to regulate commerce with foreign nations. We wouldn’t think that the President could, on his own, impose a tariff without any kind of congressional authorization. It seems not to be like moving troops around or responding to an attack on American’s abroad. It seems to be something -- I mean, it’s technically foreign because it involves foreign countries.

 

But as a matter of fact, we put tariffs on Canada, and it’s a little startling to be told that we have a national security threat from Canada, which I think was a point that Justin Trudeau did make. They would be willing to share with us steel and aluminum at any time. So is it maybe just a leap too far to try to pull this into arguments about the President’s broad powers in foreign affairs?

 

Prof. Jide Nzelibe:  I would say no. The reason why not is the following. If it were the standalone policy that you’re only worried about national security and you’re saying, “Look. I see the national security angle, and I see that the President has broad powers there,” but the international trade aspects of it—that is the other part of the equation—is one in which Congress has extensive powers. So using an idea of leveraging, can he leverage his broad national security powers to get into an area where Congress has a lot of authority?

 

And what I’m trying to suggest is actually there are two spheres, both international trade and national security. So if I strike out the national security part, what you notice that, when it comes to the nondelegation doctrine, the two big cases that define -- in fact, the intelligibility standard comes from a case called J.W. Hampton v. the United States. The other one is Field v. Clark. These are issues that didn’t implicate national security at all. It had to do with the discretion. And then J.W. Hampton it was transparently protectionist tariffs -- the power to enact protectionist tariffs that Congress gave the President.

 

So the President could raise tariffs to equalize the cost between American products and foreign products, which is a purely protectionist goal. And in that, the Court said, “It’s fine. The President has to do that -- has the power to do that.” And then that’s where it developed intelligibility policy. What I’m trying to suggest is that -- so if this is a Venn diagram, under just international trade, the Court has been willing to recognize that the power of the President to negotiate and deal with other countries allows significant authority to be delegated to the President -- standing alone, without even having the national security angle.

 

When you mix the both of them together, I just think it, in my view, strengthens the President’s hand even further. So that’s sort of the way I would look at it.

 

Prof. Jeremy A. Rabkin:  Just one last question and then I will let Tim weigh in on this. Does it make a difference that the President wasn’t trying hard to make it very plausible that this was about national security? I mean, he just said, “National security, I like those words.”

 

Prof. Jide Nzelibe:  I think yes and no. Yes -- so here’s two ways, and I understand that Tim may have some views on this. One of the things we ought to be concerned about is the following. I think the problem with delegation to the President -- international trade -- and the context in which it’s come up and which it has been a source of concern has been around, actually, since the founding of the republic, or a little after the founding of the republic. And one of the concerns that have come up is does the President have the power, in conjunction with Congress or even acting alone, to use the trade authority to award what I would call protectionist benefits?

 

For a long time, this power was complicated because -- the concern about whether the President had that power was complicated because the tariff was the primary mechanism for raising revenues. And because it was hard to distinguish its revenue raising function from its protectionist function -- and there was a belief that the courts wouldn’t be able to make that distinction -- it wasn’t an issue that the courts felt comfortable adjudicating. And even someone like John Calhoun recognized that this would be something that would be very difficult for the courts to do.

 

John Calhoun, incidentally, was a free-market figure who believed that it was wrong to use the tariff for purely protectionist purposes. But the reason I say this is that, in both cases—the J.W. Hampton case that I mentioned, which is in the 1920s, and the Field v. Clark case, which is in the 1890s—the President was using the power for expressly protectionist purposes. So part of what the litigants in that case where saying is, “No, you’re claiming that you need to negotiate with foreign countries and that’s why you raised the tariffs.” This is in Field v. Clark. “We think that that’s a protectionist -- purely protectionist goal.”

 

And yet, Field v. Clark blessed the arrangement. When it comes to J.W. Hampton, the 16^th Amendment, which allows Congress to collect our revenues through the tax structure rather than tariffs, had already passed. So the President doesn’t have the excuse anymore that this could plausibly just be a revenue collection thing. So there, it’s more transparently protectionist. One of the things that the litigants did is to challenge it -- that this is a protectionist policy. And nonetheless, the Court endorsed it.

 

So what I’m trying to suggest here is that there may be some concern, okay, is the President using this national security clause to actually get around to performing some kind of protectionist goal, and will this make the courts a little wary? And part of what I’m trying to suggest is that, in the past, when the President has used the power for that purpose, the courts have still endorsed it, even though the excuse given was not something as strong as national security.

 

Prof. Jeremy A. Rabkin:  So let me bring this back to Tim. I see that those precedents are potentially very relevant, but they’re also from a time when the American economy was altogether very much less dependent on imports. And now, President Trump is saying, “The whole economy should pay more for steel because I think that’s a good policy.” Maybe the protectionism now is so much more consequential that it has to be viewed in a different light. It’s not a narrow exception to the general doctrine that the President’s restrained.

 

It’s really a prime example of letting the President fashion enormously consequential economic policies with very little statutory guidance. Do you think I’m right -- that I’m right to pose this question that it looks different because we’re in a different era?

 

Prof. Timothy Meyer:  I think you’re right for that reason, and I think you’re right for another reason. So I think, with respect to the importance of international trade, clearly is considerably more significant today than it would have been a century ago. I think, again, you actually saw this in Judge Katzmann’s opinion out of the CIT. We also know that the extent to which that authority is going to be exercised in a way that is incredibly broad and, I think, pretty clearly divorced from what we would conventionally think of as national security concerns. There’s a breaking of sort of constitutional norms here that I think might inform how a court looks at the scope of the power delegated under Section 232.

 

So I think the changing of the times is important, both because we perhaps live in a different constitutional moment than we were in in 1976 or in 1890 and also because the economy itself has changed. So the scope of the power is considerably broader. But the other reason that I think it’s different is not, I think, really that difficult to distinguish Field v. Clark and Hampton. Most of these other cases -- if you think about the way these statutes are usually written, there’s typically what I think of as a trigger provision that sort of is something that engages the President’s authority. And then there’s the remedial authority the President has. There’s whatever he can do.

 

And in virtually every other statute—trade statutes, but also statutes like the EPA statute that Jide mentioned in the Whitman case—you’re talking about a statute where either the trigger or the remedy is actually controlled by Congress. Congress actually lays down a principle. And in Section 232, you have neither of those things. So the President just makes a determination on his own, after receiving a report from the Secretary of Commerce, about whether the national security is threatened. And then he is able to impose whatever remedy he likes or whatever duration of time he likes on whatever article he has selected to investigate.

 

You described it, Jeremy, as an emergency power. But it’s not described that way in the statute. The President can actually let these measures stand indefinitely. There’s no requirement, even as there is under the National Emergencies Act, that you sort of go back and at least recertify the conditions. And I think we saw this when he doubled the tariffs on Turkey from 25 percent to 50 percent on steel and then aluminum. He did it essentially by tweet, and the administration was left sort of scrambling to backfill a rationale for that. But the statute itself just allows a much broader scope for presidential decision making than you have in any of these other statutes.

 

And the other thing I would say is also there’s no judicial review here under the Administrative Procedure Act as you might have, for instance, in EPA v. Whitman. So you’re not talking about those kinds of domestic exercises of authority that it can be reviewed under sort of standard administrative procedures.

 

Prof. Jeremy A. Rabkin:  I want to come back to the administration by tweet. But just to try to wrap up what’s really at stake here, suppose there were a statute -- either of you. I’m glad to have your response. Suppose there were a statute that said, “In the interest of national security, we authorize the President to impose a price ceiling whenever he thinks that the price of certain crucial commodities defined by the President would be a danger to the economy.” Give us almost no guidance at all, prescribes no procedure, does not involve a trigger of findings that could be contested. If we had a parallel statute that just involved price controls inside the United States -- I guess I’ll start with Jide. Do you think that would be constitutional?

 

Prof. Jide Nzelibe:  So I don’t think you need a hypothetical for that purpose. Let me give you one situation. It’s not exactly a price control, but it’s the Federal Power Act. So imagine what we said. We said emergency. We said national security, right? Under the Federal Power Act, the President is allowed to take control over an energy project—and it specifies it—for any other purpose involving the safety of the United States. There’s no requirement that there be a declaration of national emergency, and there’s no requirement that it be considered national security. The bound, under the Federal Power Act, is the safety of the United States.

 

Now, I’m just trying to give you an example because we’re talking specifically about here the use of national security for international trade. But there are a whole range of statutes out there -- I’m trying to count, just looking through my thing, the number of statutes that give the President the power to decide whether there’s national security. It’s self-defining, and that enables the President to do all kinds of things.

 

Prof. Jeremy A. Rabkin:  But mostly, these are not litigated because the President hasn’t asserted them in controversial ways, right?

 

Prof. Jide Nzelibe:  I think some of these are things that may have been. I’d have to check to see what the extent of litigation is. I feel comfortable in saying I think the courts, even when it’s extravagantly defined -- I think the courts are very reluctant to assume they can define the contours. Now, I wanted to make a caveat here. There are sometimes when Congress provides a little bit more guidance as to what it expects when national security is invoked.

 

But where it doesn’t provide the guidance -- I’m just not aware of a lot of situations where the courts have intervened, even when challenged, and said, “You need to provide more guidance.” Or the President, “We don’t defer to your interpretation as to what national security is or the safety of the United States.” Even when these ostensibly involve private interest and private property interests that are domestic -- I just think that has not been an issue. Now, you may say, “Well, presidents, over time, have probably exercised this power in a prudential way.”

 

And that may be the reason why. I suspect there are some other reasons why international trade gets challenged more. But I just wanted to let you know it’s out there. So if there was an attempt to define the scope of national security as being somewhat self-limiting or requiring more of an intelligibility principle because it fills a nondelegation doctrine, what I was going to suggest is that there will be a significant number of statutes that would be implicated by that decision.

 

Prof. Jeremy A. Rabkin:  No, that’s a very interesting fact. Let me just offer a different comparison. So you had -- to go back to the tweeting. You have the President tweeting about what he called the Muslim Travel Ban. And then he was persuaded -- okay, no, that’s not exactly how we’re going to do it and finally came out to eight countries. He is going to sharply restrict people coming into the United States from eight countries on this list. And the lower courts were extremely interested in the tweets. And partly they were interested in the tweets because it’s a non-transparent process how you got to this travel order.

 

And even when it got to the Supreme Court, which did uphold the last version of this that the President went with, I would say they were a little bit skittish about it. And there were two dissents, which were quite angry and said, “No, come on. You can’t call this a valid exercise of presidential authority.” Do you think there’s something different about economic policy that we could just sort of put aside demagogic tweets and focus on -- because again, we have a not at all transparent policy process here?

 

At the end of which is, at the very least, a very grand policy because there were so many countries affected at the same time. Is there some reason why this ought to be looked at more respectfully by the Supreme Court -- the travel ban and perhaps some other Trump initiatives which provoked a lot of scrutiny?

 

Prof. Timothy Meyer:  Well, if I could just jump in for a second, to the extent the question is about whether or not this should be, compared to the travel ban, treated more respectfully by the Court, I think it’s the opposite. I think that we’re dealing with a situation in which there’s a pretty good argument that the President, where immigration is concerned, may have so inherent authority. I tend to disagree with Jide that there’s really any constitutional authority for the President over the regulation of international trade. I think Article I, Section 8, is quite clear that that’s congressional authority.

 

And to the extent that it intersects with national security, let me put it this way. If you image the statute that just transferred -- where Congress just said, “We hereby transfer our authority to the President,” I think most people would agree that this would be unconstitutional, even though that transfer would inevitably involve transferring some authority where the President did have concurrent authority. Right? If Congress transfers all of its authority, it’s also transferring any of its national security prerogatives to the President, where the President, I think, does enjoy some constitutional authority.

 

I don’t think Section 232, where the regulation of foreign trade is concerned, is that different from that. To Jide’s point about, if Section 232 falls, are we endangering a number of other statutes that involve national security, I think the answer is no. And I think the reason for that is that Section 232 gives a definition of national security that, to my knowledge, is nowhere else. Nothing so broad exists elsewhere in the U.S. Code. The definition includes a variety of things that we might think of as being relevant to national security. Do you need to have a particular product to supply, for instance, the Defense Department or the defense needs of the nation?

 

But then it lists virtually any factor in the economy. So the President is allowed to consider, under the rubric of national security, unemployment figures. He’s allowed to consider human capital, the loss of government revenue. So to Jide’s point about revenue, that is actually part of -- revenue is treated by Section 232 as part of national security. And then, he’s allowed to consider any other factor that he thinks is relevant. Again, I’m not aware of anywhere else in the U.S. Code where national security is given than kind of definition.

 

I actually think that Section 232 would be on safer constitutional ground if it simply didn’t contain a definition of national security because, then, we’d be left with sort of an ordinary kind of foreign affairs and national defense.

 

Prof. Jeremy A. Rabkin:  You would assume that I meant national security, if it was simplified.

 

Prof. Timothy Meyer:  Exactly. And it’s the definition, I think, that both makes 232 sort of unique in the U.S. Code and sort of, really, I think means that a court could look at 232 without fearing that it would be restricting the President’s authority on real national security matters.

 

Prof. Jeremy A. Rabkin:  Do you want to respond to that, Jide?

 

Prof. Jide Nzelibe:  Yeah. I think one thing I was going to say, just to respond to the question about the international trade in both that and the national security, I do think that a lot of these statutes -- and some of the ones that I’m looking at, including one in the Federal Power Act -- I think you can fault them for not providing any kind of guidelines as to what the scope of national security -- the safety of the United States is in these other areas where they’re used. But I think more importantly -- I wanted to make a point that is a little bit, I think, disconcerting, at least for the plaintiffs in this way.

 

So when you look -- and I’ve taken a look -- I’m looking at Justice Thomas’ -- there’s a case called Department of Transportation v. Association for American Railroads. And this is whether or not you could delegate certain kinds of powers to a body, let’s say Amtrak -- delegating public powers to, let’s say, a private entity. And then there’s a question as to whether or not Amtrak is a private entity or whether it’s not a private entity. But in that case, both Justice Thomas and Alito talk a little bit about the nondelegation doctrine. And it’s interesting because when you look at Justice Thomas’ opinion -- and one could say he’s the most sympathetic to the idea of reviving the nondelegation doctrine.

 

He relies on an article by a gentleman by the name of David Schoenbrod. I think I’m spelling his name right. And I read the article, and one of the things that is interesting about David Schoenbrod’s article is that, when it comes to things like Field v. Clark and J.W. Hampton, his view is these things implicate areas where the President has significant authority -- so trade, generally. And he’s view is that it’s international trade. And so what he suggests is that, when it comes -- David Schoenbrod is one of the -- if you want to call it -- one of the most forceful advocates of reviving the nondelegation doctrine.

 

And even he, one of the most forceful advocates, makes an exception for that category because he thinks it’s an area where you could say the President may have some independent authority. And he says international trade and foreign policy. And he says, even if you revitalized a strong nondelegation doctrine, it may be okay for the President to exercise it in that realm. So part of what I’m trying to suggest is this. If you look at Schoenbrod, he’s trying to say “Reject the intelligibility principle of the case of J.W. Hampton because it’s too elastic. Put in place something that is much more solid and that can draw the lines clearly between legislative and executive powers. But carve out an exception where both the legislature and the Executive Branch may have some overlap.”

 

And he includes foreign policy, trade policy in that realm. And in that place, when delegations take place, we should be able to endorse it. So what I’m trying to say is that, if you look at this as a multiple hump issue, first of all, you overcome the intelligibility principle, which means overruling J.W. Hampton and replacing it with a different standard, which he calls the rules versus, I think -- rules versus goals -- that whenever Congress announces something that is permissible and permissible -- the President should have discretion, but whenever it gives the President the ability to make policy goals, then that’s an illegal delegation.

 

That’s Schoenbrod’s what I would call demarcation. Even in that realm, he still says maybe Congress can still engage in broad delegations in international trade. So what I’m trying to suggest is the extent to which this is a difficult issue I don’t think just turns on whether or not there’s some power that has been expressly given to Congress. It also has to do with the fact that international trade in itself requires presidential authority because international trade requires negotiations. And Congress can’t negotiate actively with foreign countries. And the power to negotiate and bargain means the power to promise and the power to threaten.

 

And right from the get-go, when presidents started negotiating international trades, it was assumed that delegation to the President was essential. It wasn’t even optional. It was essential because the President won’t be able to make -- negotiate with the foreign party. So there’s almost this sort of idea that there has to be an implicit power that the President has, if international trade negotiations are to take place.

 

Prof. Jeremy A. Rabkin:  Okay. I want to just move on to one last question that is related to what you were just talking about. A number of countries have gone to the WTO and said the Trump tariffs violate America’s obligations under the WTO agreement. And the response of the Trump administration is, “No, no, no. There’s a national security exception for these commitments that we made.” And these countries are saying, “Now, cut it out. What you’re talking about isn’t national security.”

 

So my understanding is the appellate body of the WTO has decided that they can review whether, in substance, a country that invokes the national security exemption is doing so properly or in good faith or rightly. Probably we don’t, in general, want the WTO second guessing our claims in this area, but I don’t know. Just let me ask. Would you say -- for courts to say, “This is all up to the President, and there are no restrictions on what he does -- effectively no restrictions on what he does,” does that make it harder for us to persuade the WTO “Trust us. We know what we’re doing. We won’t abuse it”?

 

And should we care if it makes it harder to persuade the WTO? I suppose there’s always the argument that we can deny them travel visas, so they won’t dare. Should we be worried about the WTO in this?

 

Prof. Timothy Meyer:  I think the panel report in the Russia Transit case, which decided as you just described -- it seems to me that it was written very much with the U.S. in mind. Ultimately, the panel there said Russia could prevail on its claim of national security, but it was written in a way that suggested, in particular, you were going to be able to have good faith review. You could imagine, I think, the panel thinking that that was standard -- that might be acceptable as applied to the United States and would allow the WTO to say something meaningful that might affect at least the way future administrations think about the application of these kinds of exceptions.

 

I think the Trump administration is not likely to respond well to an adverse WTO decision, with respect to Section 232. So the timing of those case, I think, in relation to this administration, remains very important. So I do think that there’s danger for the WTO. As you suggested, I think, to the extent that you’re talking about a lack of process and a lack of transparent process in the U.S. domestic system as it relates to Section 232, that’s not going to predispose the WTO to be more deferential. This is sort of like -- it’s a little bit like sort of the international principle of complementarity -- that if there’s not something going on domestically, the international tribunal thinks, well, perhaps, this is where we should step in.

 

And I’ll just add, briefly, I don’t think, with response to what Jide was saying, that anybody’s arguing that there can’t be delegation in the trade space. I think Jide is absolutely right. There has to be delegation. The question is about the bounds of that delegation. And even in this sort of post-war trade statutes that delegate incredible authority to the president to set tariffs, there are usually limits on the kind of tariffs that he can set. He can’t agree to cut tariffs by more than 50 percent or something like that. And Section 232 just doesn’t have those things. And likewise, it doesn’t have the standards of review or access to judicial review that you would have in those domestic context that would be available under the Administrative Procedure Act.

 

So your statute, Jeremy, that you posed -- that would presumably be reviewable under the Administrative Procedure Act. That would allow you to get at the question you just raised about the transparency of the procedures. And that’s not available under Section 232. And I think that is constitutionally relevant under the nondelegation doctrine.

 

Prof. Jeremy A. Rabkin:  We’re going to open this up, if callers want to raise some questions. Just before we go to that, is there something, Jide, that you want to respond to?

 

Prof. Jide Nzelibe:  Yeah. Just very quickly, I agree with Tim entirely on the issue with the WTO. The appellate body, by itself, hasn’t made a decision. It was a panel that made the decision that it was able to review. One little caveat, I would say, to this is this sort of Marbury v. Madison type way of thinking -- is that there’s a possibility that, in most of the cases that may come before the WTO -- if they think that they can judge the national security exception, they will reach a decision and say, “In this context, the country meets the threshold.” So you’ll have this veneer of the court really claiming that -- or the appellate body and/or the panels claiming that this is not a self-judging thing but, nonetheless, blessing every so that there’s really no controversy.

 

However, and I agree with Tim here, the threshold -- real issue is when they decide against a country, which is always a risk because you can never kind of -- you can never be sure that once you wander into this territory that the standards and doctrines that you develop would be so elastic that the state will always win. And once they decide against a country, it’s very, very tricky because I think the WTO is in a particularly vulnerable situation now because they may not have a quorum. They may not have enough appellate body judges to actually reach a decision.

 

And the easy way to really destroy it is just to refuse and veto the appointment of any new appellate body member. Once they fall below three, it would have to fold. That’s not an unlikely outcome. And in fact, there’s a real risk that before the end of this year that may happen. So we should be aware that there’s a certain big power struggle in the background, which doesn’t require Trump to do anything significant like terminate the gap statute but just to veto any new judge that is appointed.

 

Prof. Jeremy A. Rabkin:  I think this is all enough to confirm that there’s a lot more at stake here than just precise tariffs that are in dispute in the case that’s been decided by the Court of International Trade. Do we have callers who want to raise questions?

 

Wesley Hodges:  Well, Professor Rabkin, let’s go and ask the audience. It does look like we do have one question out of the gate. First caller, you are up.

 

Devin Watkins:  Hi, this is Devin Watkins, a graduate of Scalia Law School there. I had a question. How do you think of the current case on the nondelegation doctrine, the Gundy case, is going to potential impact this question?

 

Prof. Jeremy A. Rabkin:  I think that’s probably for Tim Meyer first because you’ve really had to think about this.

 

Prof. Timothy Meyer:  Sure. As I said, I think it’s an incredibly important decision. And it will be, whichever way it comes out, incredibly important for the resolution of this question and generally, for the viability of nondelegation claims going forward. As we mentioned earlier, Gundy is a criminal case, so it’s possible that Gundy would be resolved on grounds that are at least potentially limited to criminal cases. I think one might wonder whether the criminal civil distinction -- how rigid a line that is because, if you violate a civil statute, it’s often the case that you could face potentially criminal liability in a variety of contexts.

 

But at least, potentially, that’s a limiting principle -- that even if the Court strikes down the statute in Gundy, they might say, “Well, this is really just about criminal statutes and the loss of freedom, as opposed to the loss of property.” But I think we’re waiting to find out. And one of the important things -- sort of the quirk of history is that Justice Kavanaugh hadn’t been confirmed when that case was heard, so they’re presumably deliberating with just eight justices. So I think it’s not outside the realm of possibility that they would set that for re-argument if they’re unable to reach a result.

 

It’s highly unusual to grant cert in a case like Gundy without having an idea that you’re going to reverse the lower court. So the Second Circuit opinion in Gundy did not really address the nondelegation issue at all. It was an unpublished opinion and just sort of summarily ruled for the government. And there were enough votes for cert there that makes me think there’s some skepticism about the breadth of some of these statutes out there.

 

Prof. Jide Nzelibe:  I think I agree with the assessment that Tim made. One thing I was going to say is that the issue of deprivation of liberty interest -- that is whether you’re throwing somebody in jail versus property -- deprivation of property, my suspicion is that the courts are likely going to be more wary when the issue is deprivation of somebody’s court liberty, like throwing them in jail, versus whether a property interest is adversely affected. And many of the nondelegation issues have come up in the later context where property interests were adversely affected.

 

And maybe that may be the kind of boundary that -- if it’s drawn, let’s say, for example, if they uphold the nondelegation doctrine or revive it in the Gundy case, that may be a principle in which they -- one of the principles in which they make the distinction. It’s just a thought.

 

Prof. Jeremy A. Rabkin:  So I’ll pose a question, just prompted by the discussion we’ve just been having. It seems to me that at least half of the -- or almost half of the Supreme Court has voiced concerns about possibly -- well, about excessive discretion in the hands of administrative agencies; that Chevron gives them too much deference, that there are other situations in which agencies really need to be called to account. And you might think this is a moment in which the appeal to the nondelegation doctrine would be heard with more sympathy on the Court. Do you think that’s right?

 

Prof. Timothy Meyer:  So I’ll jump in and say, yes, I think that that’s right. I think that you certainly see a heightened sensitivity. As you say, I think about half the Court has suggested that, in general, there’s an openness to cutting back on the amount of discretion that the administrative state has to make policy. I’d also say we relied on this case in presenting our arguments to the CIT. But there’s a case called Sessions v. Dimaya that was an immigration case, and it involved the possibility of a deportation proceeding. And it’s not a nondelegation case formally.

 

It’s formally a vagueness case under the Due Process Clause. But it is also formally a civil case, even though the penalty is quite severe. And in that case, you had a majority that struck the statute down as unconstitutional. The majority was Justice Gorsuch joining the four Democratic appointees. So I think that the receptiveness to the idea that the administrative state -- or that congressional delegations have perhaps gotten too broad and too vague, which is a concern that comes up under the Due Process Clause. It also comes up under the nondelegation doctrine. I think it extends beyond just the half the Court that has expressed doubts about Chevron or Auer deference.

 

Prof. Jeremy A. Rabkin:  Yes. And if you have concern about courts taking too much on themselves, so that you think as Justice Scalia often did -- now, the default should be deference, unless you’re totally clear what the statute means because you’re concerned about courts being too activist. Still, you might think we should put more of the burden back on Congress. Let them sort this out. And that speaks to at least giving Congress more incentive to try to fill in, if not the details, the broad outlines of the policy that it proports to be enacting. You could imagine justices on both sides finding some appeal in this.

 

Prof. Jide Nzelibe:  I could imagine that happening. But I have to say, just from an institutional perspective, I am very wary of that kind of structure. So what I’m trying to suggest is that sometimes somebody can claim Congress and the President have acted together in collusion to take away or deprive me of a liberty interest that is important. And the question is whether it’s constitutional and what is within their powers and whatnot.

 

But I think there’s a different dimension when you say, “You know, Congress, I think your job is to legislate, and I think, for some reason, you’re not legislating properly. You’re delegating that to agencies, and maybe you should take on this responsibility because, when you do, our democracy becomes healthier.” I think those kinds of what I would call responsibility shifting -- I want you to do your job kinds of pushes by the courts -- I’m very skeptical whether they have traction. If an institutional agent with especially a collective body has kind of exhibited a strong signal that it doesn’t want to do something, the belief that it will embrace that mission with the passion and internalize the goals that you ask of it merely by redelegating or pronouncing you ought to do more is not very convincing.

 

There’s a reason why they didn’t want to do the job. And yes, if they don’t want to do the job and you kick it back to them, they’re just going to put two or three things in the statute that proports to include more discretion and shoot it back to the agency. That’s the way I think it will likely unfold. And there are reasons why they don’t want to do the job. And unless you address those underlying reasons, which I don’t think the Court has the capacity to address, I just don’t think that the way to induce Congress to take on its responsibility is to say, “I’m going to make you do it because I think it’s your responsibility to do it, even if you don’t have the incentive and motivation to do it.”

 

Prof. Jeremy A. Rabkin:  So you’re probably right, but courts don’t have enough tools to impart motivation to people who are chronically undermotivated in this area. But I wouldn’t frame this as the health of democracy. If I were a Congressman, I wouldn’t be very moved by that. I don’t even know what that means. That’s so vague. But I would put it the other way or a different way, which is it’s really not fair to Americans to be subject to so many bureaucratic determinations with so little law. And you cannot expect Americans to just click their heels and bow their heads and say the bureaucracy has spoken.

 

So if you, Congress, want to have a policy here, you’re going to have to do some work to make it plausible to Americans that this is actually a considered policy and not just a blank check to bureaucrats. I’m not very optimistic either. I’m not coming up with an argument that has never been heard before. But I think that might have a little more traction today because, for many decades following the 1930s, people had this background assumption that we absolutely must have more government because more government is essential. And everyone favors it. And I think we’re now getting to a point where people are much more skeptical about whether new authorizations for more governmental action really will be helpful or not.

 

And if people are even a little bit skeptical, then maybe it carries some weight to say, “I’m sorry. We’ve got to have some version of the rule of law, even if it’s somewhat attenuated and modified and limited.” But really, it can’t just be that people are coerced by bureaucrats in the name of what bureaucrats think best. Congress has got to do something to reassure people that there actually is something that they could recognize as law in the background. I could see five justices on the Supreme Court saying, “You know, that’s a good point.”

 

Prof. Timothy Meyer:  Part of what you’re saying -- Michael McConnell and Nathan Chapman wrote an article that one of the arguments it made was that, look, nondelegation and sort of general separation of powers concerns -- these are really due process concerns. I think you’ve seen that come through in some of Justice Gorsuch’s opinions as well. I think that’s basically his view.

 

If that’s your view, then I think that, on the one hand, I think it appeals to justices who say, “Look. It isn’t that this is beyond the power of government. It’s that we have a constitutional established procedure through which we decide that we’re going to impose these burdens on citizens. And citizens are entitled to rely on that constitutionally appointed --”

 

Prof. Jeremy A. Rabkin:  The guarantee is due process of law. So there really should be some law.

 

Prof. Timothy Meyer:  There should be some law. And I think you could imagine that appealing -- if we’re thinking about just how do you appeal to five justices on the Court, one view is a more sort of formalist view. But the other view that appeals maybe to different justices is this sort of political theory view that says, “Look. Let’s kick it back to Congress to get it done.” Jide, I tend to share your view that I’m not sure how likely the Court decision is going to be to motivate Congress, but I’m not as pessimistic as you are that it would never motivate Congress.

 

And with respect to what the Court is likely to decide, I could imagine some of the justices thinking, when it’s really important, Congress would act. Congress delegates partially because the Court has let them off the hook. If you’re thinking about how you get to five, I think the combination of the more formal view of what does due process of law require in the context of separation of powers as well as sort of a political economy view of how you motivate Congress, you could get to five that way.

 

Prof. Jide Nzelibe:  I agree. My only concern is this. When Hampton was decided in 1920s and then-Justice Taft put an intelligibility principle, part of what it was meant to signal is, “Look. I don’t think that anything goes.” Congress has to provide some intelligible principle so that someone who reads it understands where the contours are. The concern I have is that courts can do things like this. But as we know from hindsight, that intelligibility principle just didn’t do much work at all. In fact, it’s not done much of anything. And I do believe that there are things you could put in that looks like you’re upping the ante -- to suggest I’m just not -- I don’t think you should just be careless in your delegations and gratuitous and whatever.

 

And yes, it may introduce these things where somebody adds two clauses or two paragraphs or one sentence to a delegation thing. But I think, at the end of the day, if I ask you post whatever the Court decision is and the world prior to it -- whether there are any kind of significant changes in the legal and constitutional landscape, I would be very skeptical if it’s really material in any way. The same way I just think the intelligibility principle post-Hampton didn’t change the world pre-Hampton, partly because I think there are significant policy reasons why Congress does that.

 

It’s not just they’re trying to avoid responsibility. They may feel like many of these actions are continuous. They require things that are changing, things that have to be evaluated. We don’t have the ability to come back and to reevaluate these things every six months, so why don’t I just have you or somebody do it and make the discretion along the way? And the boundaries between those kinds of delegations and delegations that you think are much more far-fetched are just going to be really, really hard to discern in any kind of judicially manageable way.

 

And I think any kind of standard is likely going to collapse. That’s my intuition. And while I do share your concern -- and it’s a concern expressed by both of you about trying to -- that this is a form of due process, I’m not sure the mechanisms of democracy forcing are clearly available, given how far we’re gone along the process.

 

Prof. Jeremy A. Rabkin:  Well, we’ll see. I think this is not going to be settled in one or two cases.

 

Prof. Jide Nzelibe:  I agree.

 

Prof. Jeremy A. Rabkin:  And I think there’s some new blood on the D.C. Circuit, which is sympathetic to revising the nondelegation doctrine. Okay. Well, thank you very much. It’s been a good discussion, and I think our hour is up now. So I thank both of you and to our listeners.

 

Wesley Hodges:  Thank you, Jeremy, and again, thank you, speakers. On behalf of The Federalist Society, I would like to thank you all for the benefit of your very valuable time and expertise. We welcome all listener feedback by email at [email protected]. Thank you all for joining. This call is now adjourned.

 

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