Halls of Shrewd'm / US Policy
No. of Recommendations: 6
This is the sort of shell game that the (L&Ses) in Lansing have played for decades.
White House Redirects Tariff Money
The White House has announced plans to redirect tariff revenue generated under President Donald Trump to sustain the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC) during the ongoing government shutdown. https://www.msn.com/en-us/news/politics/white-hous...So, if SCOTUS revokes the tariffs, then it will be the court that defunds SNAP and WIC.
Steve
No. of Recommendations: 5
So, if SCOTUS revokes the tariffs, then it will be the court that defunds SNAP and WIC.
I know it's a quaint notion, but Congress is in charge of tariffs, and directing the funds they raise, not the White House.
No. of Recommendations: 3
I think the court is going to make its ruling based on the language of the 1977 statute in which the President can impose tariffs without approval of Congress in the event of a "national emergency."
Since "national emergency" is rather undefined, and apparently the statute in question gives the President the discretion to declare one, and further Congress has not spoken in opposition to Trump's tariff--and also, the Trump opponent's lawyer admitted that Trump has the power to do what he's doing no matter what, even if not under this particular statute, through other means;
I believe this Supreme Court will very grudgingly conclude that Trump does have the power to declare a national emergency and impose these tariffs; and that if Trump's actions constitute a misinterpretation of what Congress intended, Congress always has the ability to clarify its intent by amending or modifying the 1977 law.
No. of Recommendations: 3
Tariffs are funny things.
During the first Trump term, we heard screaming about trade wars with China and how it Was The Worst Thing To Do.
But then Biden assumes office - and keeps them in place. For some reason that's a-okay.
No. of Recommendations: 4
So, if SCOTUS revokes the tariffs, then it will be the court that defunds SNAP and WIC.
That seems unlikely. The Court's moving fast on this and will probably issue their ruling more quickly than they typically do. But I don't think anyone expects them to get an opinion out before Thanksgiving. It's hard to imagine that the shutdown will run that long.
If it did SCOTUS can control the timing of their release, if they care at all about this. They could just hold it back a couple of weeks. Heck, they can hold it as long as June 2026 if they so choose. I'm quite confident they'd choose to do that, rather than issue an opinion that they didn't want to just because of the funding issues.
No. of Recommendations: 7
I think the court is going to make its ruling based on the language of the 1977 statute in which the President can impose tariffs without approval of Congress in the event of a "national emergency."
Since "national emergency" is rather undefined, and apparently the statute in question gives the President the discretion to declare one, and further Congress has not spoken in opposition to Trump's tariff--and also, the Trump opponent's lawyer admitted that Trump has the power to do what he's doing no matter what, even if not under this particular statute, through other means;
I don't think that's the focus of the case.
Almost all of the briefing and oral argument wasn't focused on "national emergency"; it was focused on "regulate." Neither the Justices nor any of the counsel really want to dig into whether (or how) the courts could parse whether a President had correctly identified a "national emergency." Instead, nearly the entire argument turns around the scope of what power the President is allowed to exercise after a national emergency has been identified. Specifically, whether the IEEPA's grant of authority to the President to "regulate" international trade in the event of an emergency includes the power to impose tariffs on international trade.
From the oral arguments, the Justices appear to be divided 3-3-3 on the issue. Thomas, Alito, Kavanaugh seem convinced that the Administration is correct; Jackson, Kagan and Sotomayor seem convinced they're wrong. ACB, Roberts, and Gorsuch all were more in the middle, with both ACB and Roberts having real problems with how the Administration's position can be squared with their Major Questions Doctrine cases, and Gorsuch seeming to delight in the possibility of resuscitating the Non-Delegation Doctrine in a major case.
No. of Recommendations: 1
I think there is a good chance Trump will win because of the vague way the 1977 statute defines/does not define "national emergency."
The core issue is that in the statute, Congress expressly gives the President exclusive authority to declare what is a "national emergency" for purposes of exercising his emergency powers, including tariffs.
The court may try to sidestep the whole thing by declaring it a "political question"--strictly between Congress and the President as to what a "national emergency" is, and Congress has the ability to change the statute if it wants to and doesn't like the President's interpretation of it.
Congress hasn't changed the statute.
No. of Recommendations: 9
The core issue is that in the statute, Congress expressly gives the President exclusive authority to declare what is a "national emergency" for purposes of exercising his emergency powers, including tariffs.Again, that's wrong. As explained in the below-linked thread, the case is almost certainly going to have nothing to do with the issue of a "national emergency," but instead deal almost entirely with whether the emergency powers that he does have include or do not include tariffs.
https://www.shrewdm.com/MB?pid=604893045
No. of Recommendations: 2
O.K. so in your view, the real question is whether or not a tariff is a form of "regulation" of trade.
If it's a form of "regulation," then Trump wins.
If it isn't, he loses.
I think he wins. If a tariff isn't a "regulation," then what is it?
No. of Recommendations: 5
Just saw this one making the rounds.
Supreme Court Tariffs case:
Chief Justice John Roberts: I don't see how the law cited here supports the President's argument.
Justice Barrett: This goes against the separation of powers, as laid out in the Constitution.
Justice Alito: President RAAWWKKKs!!
Justice Thomas: Who is taking me on an all expenses paid exotic vacay??
No. of Recommendations: 3
I know it's a quaint notion, but Congress is in charge of tariffs, and directing the funds they raise, not the White House.
Has anyone else considered the possibility that Johnson sent the House home, because he realizes that Congress is redundant, but the Senate has not received the memo?
just putting it out there....
Steve
No. of Recommendations: 1
I think he wins. If a tariff isn't a "regulation," then what is it?
I’m not a Constitutional lawyer, nor do I play one on the Shrewd’m boards. But the little I listened to of the case, some of the justices seemed to think tariffs were a tax, not a regulation.
At the end of the day, this SCOTUS will rationalize anything they want. They have already said the Constitution unconstitutional when it comes to “unreasonable searches and seizures,” at least until they make a final decision sometime in the future.
No. of Recommendations: 7
If it's a form of "regulation," then Trump wins.
If it isn't, he loses.
I think he wins. If a tariff isn't a "regulation," then what is it?
A tariff is almost universally understood to be a tax.
You've inverted the question from how it was considered at SCOTUS, though. The issue isn't whether a tariff can possibly be considered a regulation. It's whether the grant of the power to regulate includes the power to impose a tax. IOW, not whether a tax can be used as a tool to advance a regulatory goal, but whether the grant of the power to regulate something like trade would ordinarily be understood to include the power to tax things, rather than other actions that are more commonly understood to be regulation.
That's why the three 'uncertain' Justices were focusing on the Major Questions Doctrine. Given the nature of the IEEPA, and the then-recent dispute with Nixon over unilaterally imposing tariffs without Congressional approval, they believe it to be questionable that Congress would have "hidden an elephant in a mousehole" by giving him the power to impose tariffs without ever mentioning the word tariff (or excise or impost or duty or any other synonym). Congress knows how to talk about tariffs, and they have adopted lots of statutes that deal with tariffs - if they wanted IEEPA to include tariff authority, would they have "hidden" that by using the word regulation and not say the word tariff?
More importantly, does SCOTUS - do Republicans - want it to be the case that every time a statute gives the Executive the ability to regulate something, that automatically includes the power to instead impose new taxes on that something? That the President can on his own just enact sweeping tax increases by taking every instance where he or an agency is given the power to regulate something, and then say that he's going to "regulate" it by imposing a big old tax on it?
Given the Court's current support of the MQD, I think the more likely outcome is that the Administration loses. You might see a plurality opinion, with five or six (depending on Gorsuch) agreeing that IEEPA doesn't include the power to impose tariffs, but with a split between the three liberals and the two-three conservatives over whether the MQD is a necessary part of the analysis. Maybe Gorsuch concurs separately so he can bring in his NDD stuff.
No. of Recommendations: 2
The power to regulate may not "ordinarily" be interpreted to include the power to tax/tariff.
However, by the express terms of the statute itself, "ordinarily" doesn't apply. This is a declared time of "national emergency."
So, it's an exception. It's by definition not "ordinary."
That's the whole point of needing to declare a "national emergency." It gives the President extraordinary powers.
The bottom line is that Congress has the power to change the law or clarify what powers they did or did not intend to give to the President with respect to regulation of commerce during a time of "national emergency."
I'd be surprised if the Supreme Court arrives at a clear majority opinion that Congress lacks the power to grant the President "extraordinary powers" during a time of a declared "national emergency."
No. of Recommendations: 5
Congress knows how to talk about tariffs, and they have adopted lots of statutes that deal with tariffs - if they wanted IEEPA to include tariff authority, would they have "hidden" that by using the word regulation and not say the word tariff?
Yes! This is exactly what I got from the oral arguments. No matter what questions were thrown out to each side and no matter what answers were given, the argument always seemed to come back to this. Congress has never had trouble including the word tax or tariff in a statute before when that is what it meant and, in IEEPA, it did not use either word.
Pete
No. of Recommendations: 9
I'd be surprised if the Supreme Court arrives at a clear majority opinion that Congress lacks the power to grant the President "extraordinary powers" during a time of a declared "national emergency."
Again, that's not the issue at stake.
Congress can grant the President extraordinary powers during a time of declared national emergency. And they did. They listed them, right in the IEEPA. A whole bunch of things he can do:
investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest by any person, or with respect to any property, subject to the jurisdiction of the United States;
...but they never said he could impose tariffs, taxes, imposts, duties, excises or anything like that. Which is the main issue before the Court. None of those words is a synonym for "tax" or "tariff." The power to impose taxes and tariffs is a different power than the power to regulate.
The Court is grappling with whether Congress did grant the President the power to impose tariffs (only Gorsuch seems interested in the question of whether they had the power to grant it). ACB and Roberts are wrestling with whether it is at all sensible to believe that Congress would convey the power to impose tariffs without using the word tariff, by "hiding" that power in the more general word "regulate" rather than just say "tariff" or "tax."
No. of Recommendations: 1
Has anyone else considered the possibility that Johnson sent the House home, because he realizes that Congress is redundant, but the Senate has not received the memo?***ripped from the headlines***
Mike Johnson shoots down Obamacare vote guarantee after Thune floats compromise in Senate
Johnson told reporters Thursday that he would not commit to holding a vote on extending COVID-19 pandemic-era enhanced Obamacare subsidies, which are set to expire at the end of this year without congressional action.
Senate Majority Leader John Thune, R-S.D., had been floating a vote on such an extension in exchange for Democrats voting to end the shutdown — which is now in its 37th day. He has said he could not guarantee an outcome on the vote or that the House would take it up, however.
When pressed again on a vote, he (Johnson) said, "No, because we did our job, and I'm not part of the negotiation."
"The House did its job on Sept. 19. I'm not promising anybody anything. I'm going to let this process play out," Johnson said.https://currently.att.yahoo.com/news/articles/mike...The Dems clearly see the usual "JC" con job: give them what they want now, in exchange for a promise to do something later. Except Johnson won't even make the promise, that he would welsh on later. He says the House has no role to play.
Steve
No. of Recommendations: 1
Do you know if there is any legislative history which might shed some light on what Congress intended?
No. of Recommendations: 1
So, if SCOTUS revokes the tariffs, then it will be the court that defunds SNAP and WIC.
The lower courts have already said he has to fund SNAP.
And have the tariffs generated much money? Certainly, directing it towards SNAP would be a worthy use. But SNAP has to be funded, per two lower court judges. Unless that gets enjoined, they need to start doing it.
No. of Recommendations: 9
Do you know if there is any legislative history which might shed some light on what Congress intended?Oh, yes - there's a ton of legislative history. It was extensively discussed in briefings and the oral arguments. This was a whole
thing back in the day, when Richard Nixon used the predecessor statute - the Trading With the Enemy Act (TWEA) - to similarly impose tariffs under a claim of national emergency (but really because we were having balance of payments problems). That was hugely controversial, and Congress went back and completely rewrote the TWEA
in response to Nixon's actions in order to
curtail the scope of powers that Presidents could assert in emergency situations.
https://en.wikipedia.org/wiki/International_Emerge...https://en.wikipedia.org/wiki/Trading_with_the_Ene...So there was a lot of debate, both in the lower courts and in the SCOTUS proceedings, over whether the cabining of Presidential authority that Congress engaged in when replacing TWEA with IEEPA had the effect of restricting the scope of the "regulate" power, which Nixon had asserted.
No. of Recommendations: 1
Interesting.
The rather obvious question that then comes to mind is:
"So, why didn't Congress, when it wrote this new law in response to Nixon, include language making it clear they were NOT giving the President any power to impose tariffs, fines, taxes, duties,[etc.]" under the law?
I mean, why not just include it right in the statute itself? "This does not include the power to impose duties or tariffs" or something of that nature.
No. of Recommendations: 4
I mean, why not just include it right in the statute itself? "This does not include the power to impose duties or tariffs" or something of that nature.
Because that's not how statutory language generally works. It's not a narrative. You typically only include operative language, and rarely (if ever) includes language just to guide interpretation.
Don't get me wrong - the SG raised the point that the provision doesn't have any language that reins in the rather capacious power embraced by "regulate." But the Court didn't really seem receptive to that argument. They're trying to figure out if Congress actually meant to include "tariff" and "regulate," and they're not going to read much into the absence of language on that point.
