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Learning Resources, Inc. et al. v. Trump, President of the United States et al.

Oral argument transcript · No. 24-1287 · October Term 2025 · argued November 5, 2025 · the petitioner won

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From the Court's official transcript; speaker labels as in the transcript, with advocates' full names from its list of appearances.

Chief Justice Roberts: We will hear argument this morning in Case 24-1287, Learning Resources versus Trump, and the consolidated case. General Sauer. ORAL ARGUMENT OF GEN. D. JOHN SAUER ON BEHALF OF THE FEDERAL PARTIES

D. John Sauer: Mr. Chief Justice, and may it please the Court: On April 2, President Trump determined that our exploding trade deficits had brought us to the brink of an economic and national security catastrophe. He further pronounced that the traffic of fentanyl and other opioids into our country has created a public health crisis, taking hundreds of thousands of American lives. President Trump has declared that these emergencies are country-killing and not sustainable, that they threaten the bedrock of our national and economic security, and that fixing them will make America strong, financially viable, and a respected country 1 again. Due to IEEPA tariffs, President Trump has negotiated agreements worth trillions of dollars with major trading partners, including most recently China. Unwinding those agreements, he warns, would expose us to ruthless trade retaliation by far more aggressive countries and drive America from strength to failure, with ruinous economic and national security consequences. In Dames & Moore against Regan, this Court held that IEEPA's sweeping and unqualified language grants the President's actions the strongest presumption of validity and the widest latitude of judicial interpretation. Yet plaintiffs argue that tariffs, IEEPA's least blunt and most nimble tool, are virtually the only tool that Congress did not grant the President to deal with foreign emergencies. That is wrong. The phrase "regulate importation" plainly embraces tariffs, which are among the most traditional and direct methods of regulating importation. And plaintiffs concede that IEEPA authorizes quotas 1 and other tariff equivalents. The major questions doctrine does not apply here. IEEPA confers major powers to address major problems on the President, who is perhaps the most major actor in the realm of foreign affairs. And the nondelegation doctrine casts no doubt on IEEPA because Congress may assign the President broad authority regarding the conduct of foreign affairs, where he enjoys his own inherent Article II powers. I welcome the Court's questions.

Justice Thomas: Would you spend a few minutes on why exactly the major question doctrine doesn't apply to the President in this case?

D. John Sauer: Yes, Justice Thomas. And I may make two or three points on that front. First of all, though the major questions doctrine may apply to the President in other contexts, specifically in the foreign affairs context, where he has his own inherent Article II authority, it's a particularly poor fit to apply the major questions doctrine, and 1 that's for at least two reasons. First of all, just as a matter of kind of common-sense interpretation, one would expect Congress to confer major powers on the President to address major, you know, sort of foreign -- international crises, so to speak, in foreign-arising emergencies, that that's just sort of a natural, common-sense thing you expect Congress to do. And, in fact, you know, Justice Jackson in his Youngstown opinion addressed this very situation at pages 652 and 653 when he says this is the system within our -- or this is the procedure within our constitutional system that we have developed to strike the balance, you know, what Dames & Moore described as the never-ending tension between the need for the executive to address -- have robust powers to address emergencies and to subject it to checks and balances. What our constitutional system has devised to address that particular problem, that never-ending tension, is the system where Congress confers broad and necessary powers in advance and subjects them to ongoing political 1 oversight, which is exactly what you see in IEEPA. So that's one reason, one reason just as a matter of common-sense interpretation you would expect Congress to grant major powers to the President, who has his own broad range of major authority, Article -- inherent Article II authority in this context. And that is by just my second point, which is --

Justice Kagan: Can I interrupt you, General, there? And I know that you have a second question, and I -- I want to let you get to that. But just on that first reason, it seemed to depend a lot on the President's inherent Article II powers. And I'm wondering what exactly -- which -- which powers you're speaking of there, because tariffs, one would naturally think, is -- are -- are the power to impose taxes, the power to regulate foreign commerce. These are not things that are thought of as Article II powers. They are quintessential Article I powers. So what kind of Article II powers are you relying on when you gave the answer about 1 major questions to Justice Thomas?

D. John Sauer: I would refer to what the Court said, for example, in Egan, Department of Navy against Egan. That's a generally accepted view that the President has broad authority in the foreign affairs realm. Now there's been debates about exactly how far it goes and how to draw the boundary between the President and Congress, but Egan, Garamendi, other cases, Curtiss-Wright, the Court has recognized the President has broad inherent authority to address foreign situations, foreign affairs, foreign policy, including foreign-arising emergencies. Now we don't contend that he has -- he has at least in peacetime inherent tariffing authority. What we have here is two layers. There's the layer, the bedrock, of the President's, you know, inherent Article II powers, and layered on top of that is a sweeping delegation of -- of authority from Congress. When you put those two things together, Congress has said you have inherent powers to address international emergencies, and we're conferring you -- on you the tools, 1 including Article I tools, like, for example, the power to regulate foreign commerce. And I want to make a very important distinction here. We don't contend that what's being exercised here is the power to tax. It's the power to regulate foreign commerce. These are regulatory tariffs. They are not revenue-raising tariffs. The fact that they raise revenue is only incidental. The tariffs would be most effective, so to speak, if no -- no -- no person ever paid them. They -- they achieve their goals if they -- and so forth.

Chief Justice Roberts: Counsel, you -- you've already mentioned Dames & Moore three -- three times, which surprises me a little because the Court in Dames & Moore went out of its way to say that it was issuing a very narrow decision that it pretty much expected to apply only in this case. Just a few quotes. It said: "Decisions in this area have been rare, episodic, and afford little precedential value for subsequent cases." Again: "We lay down no general guidelines covering other situations not involved here and confine the opinion only to the very questions 1 necessary to a decision of this case." And, at the end of the opinion, it said: "Finally, we re-emphasize the narrowness of our decision." Now this -- at issue in Dames & Moore was a different provision of IEEPA, not at issue here, and certainly did not concern tariffs. So I don't quite understand how you can get as much out of Dames as -- Dames & Moore as you're trying to get.

D. John Sauer: Maybe I can put it this way. We don't dispute that Dames & Moore is, as you state, a narrow opinion. However, it -- it -- it addressed certain principles that we think are equally applicable here, for example, the interpretive principle. Dames & Moore held -- and, again, it was -- it was the power to nullify and void, not the power to regulate, but it's in the very same sentence in the very same statute, and the Court quoted the First Circuit opinion and said, look, this is sweeping and unqualified language, which it didn't disagree with. And then it said this particular provision, where Congress has given these broad verbs, I mean, "regulate" is a capacious verb, 1 admittedly, so are "nullify," so are "void," so are, frankly, all the other verbs there in the -- the language in IEEPA. The way the Court thought about it is we're looking at this through the lens of Justice Jackson's opinion in Youngstown. And the Court held specifically that these verbs placed the President in Youngstown Zone 1. The Court held that -- that he's subject -- subject to the widest latitude of judicial interpretation, that he received --

Justice Sotomayor: Counsel --

D. John Sauer: -- the strongest presumption of validity.

Justice Sotomayor: -- I just don't understand this argument. It's not an article. It's a congressional power, not a presidential power, to tax. And you want to say tariffs are not taxes, but that's exactly what they are. They're generating money from American citizens, revenue. And you say it's incidental to the regulatory purpose. But I don't see how a quota is equivalent to revenue-raising. A quota sets a limit to what you can import in, 1 but it doesn't generate revenue. I -- I -- I don't understand this argument that it's equivalent or that foreign powers or even an emergency can do away with the major questions doctrine. Didn't we in the Biden case recently say an emergency can't make clear what's ambiguous?

D. John Sauer: As to that point, I believe the Court has never applied the major questions doctrine in the foreign policy context.

Justice Sotomayor: But we have --

D. John Sauer: But that's the emergency context, not the foreign policy context.

Justice Sotomayor: Counsel, we have never applied it to foreign affairs, but this is a tariff, this is a tax.

D. John Sauer: It is a -- it is a -- if I may, it's a foreign-facing regulation of foreign commerce. That's a regulatory tariff --

Justice Sotomayor: Commerce -- everything --

D. John Sauer: -- distinct from a tax.

Justice Sotomayor: So Biden could have declared a national emergency in global warming and then gotten his student forgiveness to not be a major questions doctrine?

D. John Sauer: I don't think he could have gotten student loan forgiveness.

Justice Sotomayor: Why? It's global --

D. John Sauer: But perhaps he could have -- he could have said --

Justice Sotomayor: It's foreign -- it's foreign-facing. We need -- we need all of these things to -- to face -- to tax fossil fuel or to do something else. That's all Biden would have had to do with any of his programs?

D. John Sauer: Let me put it this way if I may.

Justice Sotomayor: Is just declare some foreign-facing purpose?

D. John Sauer: If I may, maybe I can articulate it this way. The power to impose tariffs is a core application of the power to regulate foreign commerce, which is what the 1 phrase "regulate importation" in IEEPA naturally evokes --

Justice Sotomayor: Why is it --

D. John Sauer: -- not the power to tax. What's --

Justice Sotomayor: Why -- could you tell me why it is that when Congress intended to permit a president to regulate by imposing tariffs, it's always used "tariff" and "regulate"? I have about 16 laws in the past that when Congress intended "regulate" to mean taxing, that it used taxes simultaneously.

D. John Sauer: This Court --

Justice Sotomayor: But it didn't here.

D. John Sauer: Respectfully, this Court came to the opposite conclusion, if I may, in Algonquin, where the phrase was not impose duties from the --

Justice Sotomayor: Well, but that was -- we did something in Algonquin. It was in the duties section, unlike here. It was paired with questions about decreasing tariffs and increasing tariffs. So it's a very 1 different statute than the one at -- at issue here.

D. John Sauer: But the governing language -- admittedly, the reference is to duties in Section 232(a). 232(c) does not refer to them. And the Court didn't refer to 232(a) at all or the phrases "duties" or "tariffs" in its analysis. What it held was the phrase "adjust imports," which includes a verb that's narrower --

Justice Sotomayor: But it was in the context --

D. John Sauer: -- the word "regulate" here naturally encompasses --

Justice Sotomayor: -- it was in context of activities that had to do with raising and lowering duties. Here, the noun -- the verbs that accompany "regulate" have nothing to do with raising revenues in the form of taxes.

Justice Jackson: And, counsel, Algonquin wasn't a textualist opinion. Do you agree with that? In other words, the analysis that the 1 Court was using there was really keyed to the legislative history of that statute, and it wasn't as though we were doing an interpretation of the word "adjust."

D. John Sauer: I disagree with that. I think you read the opinion, first, it talks about plain meaning, then it talks about statutory context, and then it goes on to legislative history. So it was all three of those. And the conclusion it came to, it -- it directly addressed and rejected the argument that the D.C. Circuit had accepted in that case, which is that when Congress wants to delegate the authority to tariff, it uses a consistently explicit and well-defined approach, which is to use these magic words, tariff, tax, impose, and so forth.

Justice Jackson: All right. Let me -- let me --

D. John Sauer: And the Court said, no, we -- Congress is not bound to use that particular formulation when it wants to confer this power.

Justice Jackson: Let me ask you about 1 the premise of your argument, which you -- you sort of started at the beginning saying that one would expect for Congress to give the President broad leeway in this kind of foreign affairs context. And I guess I'm wondering whether you also don't have to contend with the actual purpose of IEEPA in making this argument because, as I understand it, that the -- IEEPA was designed and intended to limit presidential authority, that Congress was concerned about how presidents had been using the authority under the predecessor statute, TWEA, and it's pretty clear that Congress was trying to constrain the emergency powers of the President in IEEPA. So it seems a little inconsistent to say that we have to interpret a statute that was designed to constrain presidential authority consistent with an understanding that Congress wanted the President to have essentially unlimited authority.

D. John Sauer: I disagree with that because what Congress actually did as --

Justice Jackson: What part do you 1 disagree with? I'm sorry.

D. John Sauer: Well, I disagree with the notion that they were trying to constrain the breadth of the actions the President may take when it comes to this particularly narrow domain, which is, you know, various regulations of transactions over how many of which foreigners have interest.

Justice Jackson: But how can you disagree with that? I mean --

D. John Sauer: Because --

Justice Jackson: -- the history is what it is, and --

D. John Sauer: Because they made a series of changes to IEEPA --

Justice Jackson: Yes.

D. John Sauer: -- that relate to the -- the triggering conditions, so to speak, and the procedures that apply, but they did not change the language in I -- in TWEA --

Justice Jackson: Right, but what was the --

D. John Sauer: -- at all. So --

Justice Jackson: -- what was the intent of -- of Congress in changing the 1 language? Wasn't it to constrain presidential authority in this area?

D. John Sauer: To constrain it in the triggering conditions and the procedures that apply in this --

Justice Jackson: No, those --

D. John Sauer: -- context, but -- but --

Justice Jackson: The triggering conditions and procedures that apply are a means to constrain. That is how they went around -- about constraining. But my point is that Congress enacted this legislation with the intent of preventing the President from having unlimited powers in this area, and you're asking us to now interpret that statute consistent with an understanding that Congress wanted to allow the President to do pretty much whatever he wanted in this area.

D. John Sauer: Congress took the language from TWEA and enacted the very same language and, most importantly here, the very same phrase, "regulate importation," in IEEPA, and, therefore, the natural inference is 1 Congress did not intend to change the scope of authority, the powers, the tools the President can exercise to --

Justice Jackson: Did any President under TWEA --

D. John Sauer: -- address foreign emergencies.

Justice Jackson: -- did any President under TWEA use that language to impose tariffs?

D. John Sauer: Well, yes, President Nixon's 1971 tariffs --

Justice Jackson: Not a tariff.

D. John Sauer: -- were visibly --

Justice Jackson: That wasn't a tariff. It was a licensing agreement during wartime. It was a specific thing. A tariff I'm -- I'm talking about.

D. John Sauer: I'm referring to President Nixon's 1971 tariffs --

Justice Jackson: Oh, President -- I'm sorry. Excuse me, yes. I thought you meant Lincoln.

D. John Sauer: That was -- not only that, but then it was upheld by the court of appeals with exclusive jurisdiction under this 1 very phrase, "regulate" --

Justice Jackson: But can I --

D. John Sauer: -- "importation."

Justice Jackson: -- back you up just a second? I'm sorry. You're talking so quickly.

D. John Sauer: Sorry.

Justice Jackson: President Nixon did not rely on TWEA initially to impose the tariffs. Is that correct?

D. John Sauer: I don't think that's --

Justice Jackson: I understood that was just a litigating position that he took once it was challenged. That was not his initial --

D. John Sauer: I wouldn't put it that way because he has a broad invocation, you know, I'm invoking a whole range of statutes, something like that, in Proclamation 4074, and I think the understanding is he didn't want to kind of spook our allies by invoking the Trading With the Enemies Act by specifically invoking it. But, in litigation, it was defended on that ground. So the Department of 1 Justice defended it as an exercise of TWEA and did so successfully.

Justice Kavanaugh: What's the significance of the Nixon example and precedent here? Because I think figuring that out is real important to deciding this case correctly. So --

D. John Sauer: Well, there's one obvious very powerful takeaway from it, which is that this very two-word phrase, "regulate importation," that we say it carries with it the authority to tariff, impose regulatory tariffs at the border, forward-facing tariffs at the border -- border, and we say that's a core application of -- of the phrase "regulate importation," had been interpreted two years before Congress re-enacted that language in IEEPA, had been interpreted to carry with it the authority to -- authority to impose tariffs. So this Court said in Algonquin, for example, with respect to President Nixon's --

Justice Kavanaugh: Well, what -- what -- just back on the Nixon, what was the scope of the Nixon tariffs?

D. John Sauer: Ten per -- he imposed a 10 percent tariff kind of across the board to all our major trading partners to address a balance-of-payments deficit, where he was trying to bring all the major industrial nations to the -- to the -- to the negotiating table, which he successfully did, for the imposition of the tariffs, and they negotiated the Smithsonian agreement in about five months, after which he lifted the tariff. So the tariff there was used as here, in part as leverage to get our trading partners to the negotiating table, and it was subsequently upheld by the Federal Circuit, the CCPA, the Federal Circuit's predecessor that had exclusive jurisdiction over that question, to include the power to tariff. And then, two years later, Congress took that same phrase and re-enacted it in IEEPA after carefully studying the problem of presidential emergency powers and being deeply concerned about, you know, excessive or abusive exercise of that power. So that whole -- that whole sort of process gives sort of strong sort of confirmation that this phrase "regulate 1 importation" carries with it the power to tariff. Now, of course, that's not our leading argument. Our lead argument on interpretation is there's a -- a -- a pedigree, historical pedigree, of regulating imports specifically where the power to tariff is just the -- sort of a core application of that, a quintessential exercise of that power. And that goes back to Gibbons against Ogden and Justice Story's treatise and runs all the way through cases like McGoldrick and Board of Trustees and Gulf Oil.

Justice Barrett: General Sauer, can I just ask you a question? Can you point to any other place in the Code or any other time in history where that phrase together, "regulate importation," has been used to confer tariff-imposing authority?

D. John Sauer: Well, as to "regulate importation"? That was held in TWEA. So, obviously -- and that's --

Justice Barrett: Okay. Okay. So an intermediate appellate court held it in TWEA, but you just told Justice Kavanaugh that wasn't 1 your lead argument, that your lead argument was this long history of the phrase "regulate importation" being understood to include tariff authority. So my question is, has there ever been another instance in which a statute has conferred -- used that language to confer the power?

D. John Sauer: Well -- yes. Yeah.

Justice Barrett: Putting aside Yoshida.

D. John Sauer: I mean, obviously, the other statutory example is just imports. The cases we rely on are cases where, for example, in Gibbons against Ogden and Justice Story's treatise there --

Justice Barrett: But that just shows the word can be used that way. None of those cases talked about it as conferring tariff authority. I understood you to be citing McGoldrick and Gibbons and those cases just to show that it's possible to say that "regulating commerce" includes the power to tariff.

D. John Sauer: I think -- I think our argument goes a bit further than that as an 1 interpretive matter because, if you look at that history, the history of delegating --

Justice Sotomayor: Could you just answer the Justice's question?

Justice Barrett: Can you identify any statute that used that phrase to confer tariffs?

D. John Sauer: Yeah, the only two statutes I can identify now are TWEA as interpreted in Yoshida and then closely related, not "regulate importation" but "adjust imports," in Section 232 in --

Justice Barrett: Well, I think "adjust imports" is differently. So the answer is the contested application in TWEA and then now in IEEPA?

D. John Sauer: And, of course, I mean, those are -- there's a sort of direct line there --

Justice Barrett: Yeah, I -- I understand that. But okay.

D. John Sauer: Yes. And then -- but then, more fundamentally, we rely on historical sources to show there's this long historical pedigree of raw delegations of the foreign 1 commerce power, not the power to tax that we're not asserting here. Delegations of the foreign commerce power to the President going back to Gibbons against Ogden, all the way through McGoldrick and Board of Trustees, where this Court and -- and founding-era sources say the power to -- in other words, the power to tariff is kind of this natural -- you know, as everyone knows, that includes --

Justice Barrett: Let me just ask you one other question --

D. John Sauer: -- the power to regulate commerce.

Justice Barrett: -- about the -- the plain text, General Sauer. So you've referred to the other verbs in IEEPA as capacious. Would you really describe them as capacious? Because, to me, things like "nullify" and "void" have definite meanings. I agree with you that "regulate" is a broader term. But those words, I think, are powerful. They give -- they pack a punch. But I wouldn't describe them as "capacious" in the sense that they have a wide range of meanings. So can you describe what you mean by 1 "capacious"?

D. John Sauer: Let me put it this way: You look at all nine verbs together and you're looking at a spectrum of powers from the most sort of negative, "nullify," "block," "prohibit," "void," to the most affirmative, "direct," "compel," and then also powers in between that are more intermediate, "regulate," "investigate," and so forth. So the natural common-sense inference from that grammatical structure is the intention of Congress to sort of cover the waterfront, to grant the power all --

Justice Kagan: Well, possible, General, possible, except Congress did take out a whole bunch of verbs. It took out "confiscate," "vest," "hold," "use," "administer," "liquidate," "sell," which were in the prior statute. And -- and -- and, crucially, what it doesn't have here is anything that refers to raising revenue. So it has a lot of verbs. It has a lot of actions that can be taken under this statute. It just doesn't have the one you want.

D. John Sauer: Well, I would say the -- the notion that all these other verbs are -- are sort of not revenue-raising, like "block" and "prohibit," I think that that argument is unconvincing for two reasons. One, of course, is that we don't -- we're not saying it confers a revenue-raising power. We're saying it confers a regulatory power. And that's a crucial distinction. But also --

Justice Kagan: Yes, but if I can just stop you there, regulatory power, I mean, yes, it says "regulate," but I'll broaden out Justice Barrett's question: Is there any place that you can find in the entire Code where "regulate" used just as "regulate" includes taxing power?

D. John Sauer: We don't assert that. We say it includes tariffing power when it's combined with "importation." And that's just the most natural way to --

Justice Kagan: Right. Because the natural understanding of "regulate," even -- even though, in fact, we can regulate through taxes, but when the Code uses "regulate," we don't typically understand it to refer to 1 duties or taxes or tariffs or anything of the kind. And then, if you look at the flip side of this and you look at all the tariff statutes that Congress has passed, I mean, they use language about revenue-raising, tariffs and duties and taxes, all the language that does not appear in the statute you rely on.

D. John Sauer: Start with sort of the grammatical structure of the statute, then refer to the other statutes. "Regulate importation," you put those two words in combination, that's -- the inference from that is, you know, the founders discussed with this sort of, like, you know, "as everyone knows" attitude, "regulate importation" then, one of the most natural applications of that is the power to tariff. So, when Congress confers the power to regulate imports, it is naturally conferring the power to tariff, which it has delegated to the executive branch, you know, again and again and again going back to the country's origins.

Justice Sotomayor: I'm sorry, counsel, it doesn't say "regulate tariffs." It 1 says "regulate importations and exportations." You agree that they can't put tariffs -- taxes on exportations constitutionally?

D. John Sauer: Right. Understand. Yeah, we agree to that, yes.

Justice Sotomayor: All right. So why should we think that it's natural then to think that "regulate importation" includes taxing importations?

D. John Sauer: Because that is how --

Justice Sotomayor: It's in the conjunctive, "importations and exportations." If they can't do it with respect to import -- exportations, why are we permitting them to do it with respect to importations?

D. John Sauer: Because, as this Court has recognized going back to Gibbons against Ogden and going through McGoldrick and Board of Trustees --

Justice Sotomayor: We're going --

D. John Sauer: -- the phrase --

Justice Sotomayor: Assume --

D. John Sauer: When you're regulating imports, tariffing is a core application of that. So, in other words, if you're saying go 1 regulate trading in securities --

Justice Sotomayor: So why is it that Congress --

D. John Sauer: -- that wouldn't come with a tariffing connotation.

Justice Sotomayor: -- why is it that Congress has always used "regulate" and "tax" together in the Code? Are you telling us that with respect to its use of "regulate" in other statutes, the taxing reference is superfluous? They didn't need to do that?

D. John Sauer: I'm not sure what other statutes use "regulate" and "tax" together, but this statute has a specific historical pedigree going back to its enactment during World War I in 1917 where the phrase "regulate importation" is evoking an inherent power to tariff that became established in the 19th century with -- in cases like, you know, Hamilton against Dillin and so forth. And that history is, I think, set forth in Professor Bamzai's amicus brief.

Chief Justice Roberts: Counsel --

Justice Kavanaugh: What about --

Chief Justice Roberts: -- some time 1 ago you dismissed the applicability of the major questions doctrine, and I -- I want -- want you to explain that a little bit more. I mean, it seems that it might be directly applicable. You have a claimed source in IEEPA that had never before been used to justify tariffs. No one has argued that it does until this -- this particular case. Congress uses tariffs in other provisions but -- but not here. And yet -- and correct me on this if I'm not right about it -- the justification is being used for a power to impose tariffs on any product from any country for -- in any amount for any length of time. That seems like -- I'm not suggesting it's not there, but it does seem like that's major authority, and the basis for the claim seems to be a misfit. So why doesn't it apply again?

D. John Sauer: Well, we agree that it's a major power, but it's in the context of a statute that is explicitly conferring major powers, that the point of the statute is to confer major powers to address major questions, which are emergencies. So it would be unusual 1 to say -- look at the statute and say we're not going to find a major power here.

Chief Justice Roberts: Well, but the exercise of the power is to impose tariffs, right? And the statute doesn't use the word "tariffs."

D. John Sauer: But it uses the word "regulate importation." And, historically, a core central application of that, a big piece of that, has always been to tariff. If you had asked the founders how do you regulate imports, they would say, of course, we tariff. That's what we do. So it would be very unusual to say we're giving you the power to regulate importation to -- and say but you cannot impose regulatory tariffs. That would be almost a -- a contradiction. And all the historical sources we cite in our brief, you know, relate to that particular historical pedigree. And, as I was referring to earlier, there's a specific pedigree of "regulate importation" here in the specific context of the Presidents Polk and Lincoln and President McKinley asserting the authority to impose tariffs in wartime that was then codified in 1 TWEA and then recodified for peacetime in TWEA in 1933 and then carried over into IEEPA. So there's that as well. But, more importantly, if you look at the sort of triggering conditions that members of this Court have identified for the major questions doctrine, there's a series of them and we think they really do -- all of them don't apply here. For example, the notion that the power is unheralded. You refer to the fact that IEEPA's never been asserted to invoke tariffs. But, of course, the immediately predecessor statute that -- that -- the tariffs that President Nixon imposed on that were upheld under this very language. So this -- I would say this is -- and it was recodified in IEEPA two years later. So this is kind of the opposite of unheralded power. It's also heralded because there's this longstanding delegation -- tradition of very broad delegations of the foreign commerce power going back to the founding, going back to 1790 --

Chief Justice Roberts: But the foreign commerce part -- but -- but, I mean, 1 and I think this is a question for the other side as well, it's two -- two-facing. Yes, of course, tariffs and dealings with foreign powers, but the vehicle is imposition of taxes on -- on Americans, and that has always been the core power of Congress. So, to have the President's foreign affairs power trump that -- that basic power for Congress seems to me to kind of at least neutralize between the two powers, the executive power and the legislative power.

D. John Sauer: Let me say two things in response to that. First, the notion that these are -- the taxes are all borne by Americans, they're not borne by foreign -- foreign producers who are -- whose goods are imported is -- is empirically -- that's not -- there's no basis for that in the record. It's actually a mix what --

Chief Justice Roberts: Well, who pays the tariffs? If a tariff is imposed on --

D. John Sauer: They're --

Chief Justice Roberts: -- automobiles, who pays them?

D. John Sauer: There's a -- 1 typically, there would be a, regardless who the importer of record is, there would be a contract that would go along the sort of line of transfer that would allocate the -- the tariff and there would be different -- sometimes the foreign -- the foreign producer would pay them. Sometimes the importer would bear the cost. The importer could be an American, could be a foreign company. A lot of times, it's a wholly-owned American subsidiary of a foreign corporation. So it gets allocated. The empirical estimates range from, like, 30 percent to 80 percent of, like, how much is borne by Americans.

Chief Justice Roberts: I mean, it's been suggested that the tariffs are responsible for significant reduction in our deficit. I would say that's raising revenue domestically.

D. John Sauer: There -- there certainly is incidental and collateral effect of the tariffs that they do raise revenue, but it's very important that they are regulatory tariffs, not revenue-raising tariffs. And the way you can see this, I think, if you look at this policy, this policy is by 1 far the most effective if nobody ever pays the tariffs. And I cite two policies, right? So, if you look at the trade deficit emergency, if nobody ever pays the tariffs and instead Americans direct their consumption towards American producers and stimulate the rebuilding of our hollowed-out manufacturing base, then the policy is by far the most effective. So a tariff, a regulatory tariff that --

Justice Sotomayor: So why not -- why not do what the statute permits, bar importation of products altogether? That would be the most effective way to do it.

D. John Sauer: The question whether this --

Justice Sotomayor: You follow the statute, the statute says the President can do that. What it doesn't say is the President can raise revenue.

D. John Sauer: What it says, that he can regulate importation, and going back --

Justice Sotomayor: Regulate it by --

D. John Sauer: -- for hundreds of years, the way you regulate imports is through 1 tariffs.

Justice Sotomayor: -- quotas, pausing it, subjecting some countries and not others to importation bans. It has a lot of verbs, but none of them include generating revenue as a side effect or directly.

D. John Sauer: Let me -- let me address that verb point if I may because think about the canonical example, a statute that refers to a list of swords, knives, daggers, dirks, and pikes. There, you look at those -- that -- that list of things and you say, uh-huh, those are all weapons, therefore, a pike is a spear, not -- not a fish in that particular context. Now look at this list of verbs, "block," "prohibit," "compel," "direct," and so forth. You don't look at that naturally as an ordinary reader and say, oh, look, they're all not revenue-raising. What you say is they're all very broad, powerful, you know --

Justice Jackson: General --

D. John Sauer: -- actions that you can take.

Justice Jackson: -- General, the 1 verbs that are in the statute are actually doing something. I mean, they're in the statute for a reason, and, as I understand it, Congress actually explained to us in its Senate report and House report when it enacted the 1941 amendments to TWEA what it was doing. It said that what we are doing is authorizing the President, in the Senate report, "to control or freeze property transactions where a foreign interest is involved." There's similar language about controlling, freezing control, in the House report. So I -- I appreciate that generally you can look at these words and you can imagine that they mean certain things, but, here, we have evidence that Congress was actually trying to do a particular thing with respect to the authority that it was presenting to the President, and that thing was not raising revenue.

D. John Sauer: I think that what Congress -- the powers that Congress was conferring on the President are best understood through the plain text of the statute, which 1 includes "regulate importation."

Justice Jackson: No, I know, but some of us care about the legislative history. And so the plain text of the statute has certain verbs in it. It also has regulate commerce, as you say. And when I look at the legislative history, it appears as though Congress was trying to give the President the authority to "control or freeze property transactions where a foreign interest is involved." And in the TWEA context, that makes perfect sense because we're talking about a wartime dynamic, and -- and what is happening is the President needs the authority to prevent trading with the enemy in the midst of a war. And that seems to be the focus of the statute. So I guess I'm concerned about just sort of taking a particular word here and there and saying that the general view of it might include raising revenue when, in fact, it looks as though the aim of this was really to give the President a certain kind of authority, to freeze the assets of -- of the enemy.

D. John Sauer: And let me say two 1 things in response. First, as the notion that this is a revenue-raising tactic or -- or power, it is not. We are asserting a regulatory power. It's a delegation of the power to regulate foreign commerce. The way to control imports traditionally has been to tariff them. They say, well, you can impose quotas. Well, quotas are essentially economically, you know, economically equivalent to tariffs, so the question is why would you be able to quota under regulate but not tariff under regulate when the tariffs are themselves regulatory. And let me turn back to the question I was give -- the response I was giving to the Chief Justice --

Justice Jackson: Could -- could the answer be --

D. John Sauer: -- to illustrate that.

Justice Jackson: -- could -- could the answer be that in other places where Congress wants that particular form of regulation to be used, they say impose duties. They say you can tax, Mr. President. Here, they don't say that.

D. John Sauer: I'd say two things in response to that. That's the very argument that this Court rejected in Algonquin, that the fact that these other specific statutes --

Justice Jackson: If we disagree with you about --

D. John Sauer: -- do you say in a certain way you have to use it this way.

Justice Jackson: If we disagree with you that Algonquin is a similar context, do you have another statute or another circumstance?

D. John Sauer: And, again, not to say I will not do it again, but -- but, obviously --

Justice Jackson: Yes.

D. John Sauer: -- we -- we -- we discussed the phrase "adjust imports." And they said, oh, the natural way to do that is to tariff them. And they -- it specifically said it makes no sense at all to -- to authorize quotas, which was conceded that that statute did authorize but not tariffs because those are equivalent to the -- here.

Justice Barrett: But it said "adjust by any means necessary," which kind of beefs up 1 the "adjust." And also -- and -- and this is actually, I just don't know the answer to this question, so maybe you can help and maybe the other side can help as well -- Algonquin was very careful to always call it a license and a licensing fee. And in the oral argument, that came up too, the distinction between a tariff and a licensing fee, and I can understand how in some contexts it would be very difficult, you would press on it and you would say, well, if this license fee is raising revenue, then it -- it actually functions as a tariff, but what is the significance of that? Because, in IEEPA, it also says -- it refers particularly to licenses and it says you can license. And license would be a way of giving permission. That's actually the -- the language also used in -- in the Civil War one and -- and what is it? Dillin?

D. John Sauer: Hamilton against Dillin.

Justice Barrett: Yeah.

D. John Sauer: Exactly. Yes, it 1 does.

Justice Barrett: It was a license. It was a license fee. And that's a way to grant permission that you wouldn't otherwise have to -- to trade and import and let it through. So tell me -- tell me what the distinction is between licenses and fees and if it matters.

D. John Sauer: It's hard for me to see one because what President Lincoln said is, okay, we're going to allow imports from hostile foreign powers, basically, rebellious confederate states, of cotton subject to a license and -- but you've got to pay 4 cents a pound on cotton. When you do it, that's the condition. And -- and -- and that is -- is -- is so nearly equivalent to a tariff that says you can bring these goods into our country, but you've got to pay a ad valorem -- you know, ad valorem assessment on it. And so -- and -- and, of course, they have in their briefs conceded that quotas apply, that licensing may apply. There is the language in the beginning of 1701 that talks about instruments, you know, or other methods. 1 Instruments, licenses, or other methods to do --

Justice Barrett: But, if that were true, why couldn't you just call this a license? And it's also true that in the cotton example, the Court said the exaction itself was not properly a tax but a bonus required as a condition precedent for engaging in the trade. So it seems like it was a little squirrely about how it was proceeding. And if -- if -- if there really is no distinction, why couldn't you just call it a license here?

D. John Sauer: Very briefly, the other two cases, you know, the Polk case and then the President McKinley case, talk about duties, so I -- I -- I see an equivalence there, Mr. Chief Justice.

Chief Justice Roberts: Thank you, counsel. Justice Thomas, anything further?

Justice Thomas: The other side is going to argue, make and argue on delegation, I believe. Would you anticipate that and give us your understanding of the delegation argument?

D. John Sauer: Yes, Justice Thomas. 1 I'd say a couple things in response to that. First of all, this Court has stated that the nondelegation doctrine does not apply with anything like the same force in -- in -- as it does in the domestic context in the foreign context. And that again, to cite Dames & Moore again, Dames & Moore cites Youngstown. In Youngstown in Footnote 2 of Justice Jackson's opinion, he goes into detail about this. He addresses Curtiss-Wright. He says there's a lot of broad dicta in Curtiss-Wright. But the holding of Curtiss-Wright, the ratio decidendi, is that the non -- the domestic nondelegation doctrine does not apply with the same force in the -- in the foreign context. And then he -- and he used that phrase, "does not apply." He says the strict limitations on delegation that apply, you know, in the internal context does -- do not apply in the external context. And so we rely on that line of cases and for the reason I talked about earlier, where we talk about a situation where the President has his own inherent authority to address foreign-arising emergencies and Congress is conferring tools on him that expand 1 his ability, his capacity to do so, we are in the area of Youngstown Zone 1.

Justice Thomas: A few times you have alluded to the history as being important in interpreting this statute and also that this language comes from the Trading With the Enemies Act and that has its own pedigree. Could you just sketch out this direct line that you were alluding to as a basis for interpreting the current emergency statute as you would like it interpreted?

D. John Sauer: Yes, Justice Thomas. And turning back to the response I was giving to Justice Barrett earlier, there is -- I think it's very well set out in Professor Bamzai's amicus brief. There is this history of presidents using a tariffing power or a tariff-equivalent power, very, very close to tariffing power, in wartime to tariff trading with enemies. And that -- when the Trading with the Enemy Act was enacted in 1917, it was deliberately evoking that, and when it brings in the power to regulate importation, it's essentially codifying for -- an inherent power the President's already recognized to have. 1 And then, in 1933, when that power was expanded to an area where he wouldn't inherently have it, the peacetime context, that codification, the meaning of that remains the same. The "regulate importation" language that's brought in from TWEA and then ultimately to IEEPA in 1977 is carrying with it that connotation. And that's reinforced by all the cases we've cited in our brief where there's been extremely broad delegations of the power to tariff specifically and the power to regulate foreign commerce more generally, going back to the time of the founding, which ties to your question about nondelegation.

Justice Thomas: That's it, Chief.

Chief Justice Roberts: Justice Alito?

Justice Alito: The Court of -- the CCPA said several -- said things in Yoshida that are helpful to your position, but it also said some other things. It said that future surcharges "must, of course, comply with Section 122 of the Trade Act of 1974." And it said that the Trading With the Enemy Act did not authorize the President to "fix rates of duty at will without regard to statutory rates 1 prescribed by Congress." So do you think that Congress -- to the extent Congress had that decision in mind and relied on it, do you think it also relied on those statements in the opinion?

D. John Sauer: Not in the same way because those statements are read into other provisions of TWEA that Congress did not enact in IEEPA that may still be there in TWEA, but those are limitations that it wouldn't make sense to do. And I think the significance of Yoshida is at a higher level. Keep in mind that their principal position is no tariffs at all. "Regulate importation" just doesn't carry a connotation of the power to tariff. And we say we've got historical sources going back to Gibbons against Ogden that say the opposite. But, more fundamentally, everyone knew that at the time IEEPA was enacted that it regulated importation. It just very visibly and very prominently had been upheld to include a very -- a sweeping global tariff.

Justice Alito: Thank you.

Chief Justice Roberts: Justice 1 Sotomayor?

Justice Sotomayor: I'd like to go back to Justice Barrett's question on the word "license" as used in IEEPA. It's not used as a verb. It's used as a noun. By -- "The President may under such regulations as he may prescribe by means of instructions, licenses, or otherwise" then do what the verbs permit him to do. By license, he can nullify, void, prevent, or prohibit any acquisition, et cetera. So "license" is not being used as a verb, that through licensing he can raise revenue. He can only use licenses to accomplish the verbs. So I don't understand how we can treat licensing as equivalent to revenue-raising as used in IEEPA. The license is only to accomplish what (b) permits.

D. John Sauer: In Hamilton against Dillin, licenses -- once you had the license, then you had to pay the fees, the --

Justice Sotomayor: But that's --

D. John Sauer: -- license fees to get it in, and those are economical government tariffs.

Justice Sotomayor: -- but that's the point I'm making, which is that the only use of "license" here is a noun. You can license to accomplish the powers that (b) gives the President.

D. John Sauer: Let me be clear. We rely on the phrase "regulate importation." We're not saying that the Executive Order --

Justice Sotomayor: Exactly. You're not relying on "licenses" for that reason, correct?

D. John Sauer: No. I only cite that language, that introductory language about, you know, instruments, licenses, and otherwise, as --

Justice Sotomayor: That you -- you can't rely on it when you --

D. John Sauer: -- another layer of breadth in this particular statute.

Justice Sotomayor: Counsel, would you listen to my question? You're not relying on "license" for the reason I just said, because it is a noun, not the verb. You're relying on "regulate," correct?

D. John Sauer: Yes, we're relying on 1 "regulate importation" here.

Justice Sotomayor: All right. And despite the fact that no other president in the history of IEEPA has ever used -- has ever imported -- used tariffs as a power under IEEPA?

D. John Sauer: Well, President Nixon did so under TWEA.

Justice Sotomayor: Under a predecessor, and we have all the limitations of that. All right. Number two, whenever Congress intends to -- to permit taxing and regulate, it uses the word "tax and regulate" in every other statute, correct?

D. John Sauer: I don't concede that. I mean, two very visible examples, again, are TWEA and Section 122, as we talked about earlier.

Justice Sotomayor: We're -- we're back to the -- the question here. Okay. Thank you, counsel.

Chief Justice Roberts: Justice Sotomayor?

Justice Kagan: No, she's Justice 1 Sotomayor.

Justice Sotomayor: Yeah. (Laughter.)

Justice Kagan: She just finished. (Laughter.)

Chief Justice Roberts: Justice Kagan?

Justice Kagan: General Sauer --

Justice Sotomayor: And they're friends?

Justice Kagan: -- I want to take you back to Justice Thomas's question about nondelegation, and if I understood your answer correctly, it was really similar to the answer that you started off with when you talked with Justice Thomas about the major questions doctrine, which is sort of everything's different because the President has independent constitutional powers in this area. And so that -- if -- if -- if one does not think that with respect to tariffs, if one thinks that a tariff is a -- is a taxing power, is a regulation of foreign commerce that is really delegated by the Constitution to Congress, that argument does not -- does not sound so well. 1 And, in fact, when you look at J.W. Hampton, which gives rise to the nondelegation test that we usually use, J.W. Hampton is a tariffs case, and the Court did not say, oh, we need some special new principle here, some stricter rule, because we're dealing with tariffs in which presidents are directly concerned as a matter of foreign relations. It enunciated the test we use for all nondelegations. So how does that fit with your theory?

D. John Sauer: Eight years later in Curtiss-Wright, the Court held the nondelegation doctrine for domestic affairs does not apply with the same force as it does in foreign affairs.

Justice Kagan: But not with respect to tariffs. Not with respect to quintessential taxing powers, which are given by the Constitution to Congress.

D. John Sauer: I think Justices of this Court have recognized in their opinions that one of the reasons that the nondelegation doctrine -- you know, that intelligible principle test hasn't packed as much punch as 1 Justice Kavanaugh said in one of his opinions as it might otherwise have done is it did arise in the foreign affairs context because there, the Court has historically been very, very comfortable with very broad delegations. Chicago and Southern Air Lines and other cases of the 1930s. Shortly after, J.W. Hampton talked about the very large delegations of the foreign commerce power being very effective. And, of course, this goes back to the very dawn of the Republic. In 1790, for example, Congress conferred on President Washington basically the entire Indian commerce power. He said go, you know, get licenses, right, to do commerce with the Indians, and they'll be subject to whatever rules and regulations President Washington can make. So I do think there is a profound consistency between the announcement of the intelligible principle test in J.W. Hampton and then the subsequent recognition by this Court in Curtiss-Wright that the nondelegation doctrine doesn't apply --

Justice Kagan: In --

D. John Sauer: -- with the same force 1 in this context.

Justice Kagan: In Consumers' Research just last year, we had a tax before us, and the question was, was this a delegation issue? It was, of course, a much smaller tax which dealt with many fewer taxpayers. Notwithstanding that, we said, if there's no ceiling on this tax, we sort of assumed that if there were no ceiling on this tax, it would raise a delegation problem. And most of the opinion was given over to showing that there, in fact, was a ceiling on the tax, not a quantitative one but a qualitative one. But how does your argument fit with the idea that a tax with no ceiling, a tax that can be anything, that here the President wants, there an agency wants, would raise a pretty deep delegation problem?

D. John Sauer: First of all, I can't say enough, it is a regulate -- regulatory tariff, not a tax, and that, I think, ties to my response to that, which is that this is a totally different context. This is IEEPA, a statute that Congress carefully crafted to grant the President admittedly broad powers to 1 address foreign-arising emergencies. It's outward-facing to foreign affairs, where there's the broadest level of deference to the political branches that this Court has recognized in many cases. And it imposed not a floor or a limit on the amount of the tariffs that could be imposed, very naturally because, for example, as this Court said in Loving, quoting, you know, Alexander Hamilton and Federalist Number 23, it's impossible to foresee either what exigencies may arise or what tools may be needed to address those exigencies, the means that may be required to address those exigencies. Instead, Congress granted very broad powers, but they're confined to a particular domain. This domain is any property in which any foreign government or any national thereof has any interest. So the -- the sort of discipline if one were to apply -- we say you shouldn't -- but, if you were to apply the -- the nondelegation doctrine, the domestic-facing nondelegation doctrine in this context, there is a significant limitation there --

Justice Kagan: Yeah. So the last --

D. John Sauer: -- where you have a lot of powers that some --

Justice Kagan: -- my last question really does have to do with that point, which is how or whether this is confined because, if you look at Title 19, which is loaded with tariffs and duties of various kinds, all of them have real constraints on them. They are, you know, you can't go over X percent or it can't last more than one year. And, of course, the way you interpret this statute, it has none of those constraints. And the question arises why it is that any president ever would look to the tariffs in Title 19 if sub silentio, if you will, this statute gives the president the opportunity to blow past those limits.

D. John Sauer: This statute has its own constraints. They are constraints that are appropriate for the context, which is internationally arising emergencies. They are carefully crafted by Congress to address that. And they are, admittedly, different. They're in Section 1701. 1 The president has to make a formal declaration of a national emergency, which subjects him to particularly intensive oversight by Congress, repeat -- you know, natural lapsing, repeated review, reports, and so forth. It says you have to consult with Congress to the -- the maximum extent possible.

Justice Kagan: I mean, you yourself think that the declaration of emergency is unreviewable. And even if it's not unreviewable, it's, of course, the kind of determination that this Court would grant considerable deference to the -- to the President on. So that doesn't seem like much of a constraint.

D. John Sauer: But it is a --

Justice Kagan: And, in fact, you know, we've had cases recently which deals with the President's emergency powers, and it turns out we're in emergencies, everything, all the time about, like, half the world.

D. John Sauer: Well, this particular emergency is particularly existential, as Executive Order 14257 says, and, of course, no one disputes the existential nature of the 1 fentanyl crisis, which, you know, we had an agreement last week to create progress on, which illustrates the effectiveness of the tariffs tool here. But the point I would make in response to that is those are -- even if there's limited judicial review, which is very natural in the foreign affairs context, this Court has always -- always granted the President the -- the presumption that he's acting in good faith. There are real hurdles. They are very significant. It's got to be an unusual, extraordinary threat that arises in whole or substantial part outside the United States, so it's entirely foreign-facing, to the national security, economy, or, you know, foreign policy of the United States. So there -- there are those. Then there's, you know, 1701(b), which talks about how it can be used for this and -- and for no other purpose. Then there are limitations in Section 1702(b). Then there is the limitations I referred to earlier about what he can actually do. He can do a heck of a lot but only when he's dealing with property in 1 which foreigners have an interest, and that's a pretty narrow domain. That's -- that's quite a silo, so to speak. And, then, of course, overarching it all, there is congressional oversight. And you may say congressional oversight may not have much bite, but Congress didn't think so. Congress crafted this compromise. It balanced the never-ending tension. When it -- when it drafted IEEPA, it had its eyes open, as -- as the dissent below says, its eyes open looking at the problem of sweeping emergency powers for an executive who may use them in a way that's excessive versus the need to address unforeseeable emergencies.

Justice Kagan: Thank you, General.

Chief Justice Roberts: Justice Gorsuch?

Justice Gorsuch: General, just a few questions following up on the major questions discussions you've had. You say that we shouldn't be so concerned in the area of foreign affairs because of the President's inherent powers. That's the gist of it, as I understand it, why 1 we should disregard both major questions and nondelegation. So could Congress delegate to the President the power to regulate commerce with foreign nations as he sees fit --

D. John Sauer: We don't --

Justice Gorsuch: -- to lay and collect duties as he sees fit?

D. John Sauer: We -- we don't -- we don't assert that here. That would be a much harder case. Now, in 1790 --

Justice Gorsuch: Isn't that the logic of your -- of your view, though?

D. John Sauer: I don't think so, because we're dealing with a statute that was a carefully crafted compromise. It does have all the limitations that I just talked about.

Justice Gorsuch: But you're saying we shouldn't look --

D. John Sauer: He has broad powers in this very narrow silo.

Justice Gorsuch: -- we shouldn't be concerned with -- I want you to explain to me how you draw the line, because you say we shouldn't be concerned because this is foreign 1 affairs and the President has inherent authority and so delegation off the books more or less.

D. John Sauer: Or at least --

Justice Gorsuch: And if that's true, what would -- what would prohibit Congress from just abdicating all responsibility to regulate foreign commerce, for that matter, declare war, to the President?

D. John Sauer: We don't contend that he could do that. If it did --

Justice Gorsuch: Why not?

D. John Sauer: Well, because we're dealing with a statute, again, that has a whole list of limitations.

Justice Gorsuch: I'm not asking about the statute. General, I'm not asking about the statute. I'm asking for your theory of the Constitution and why the major questions and nondelegation, what bite it would have in that case.

D. John Sauer: Yes. I would say, by then, you would move from the area where there's enormous deference to the President in actually both the political branches, where, 1 here, there's inherent authority, and pile on top of that there's a broad delegation of the duty and --

Justice Gorsuch: You're saying there's inherent authority in foreign affairs, all foreign affairs, so regulate commerce, duties and -- and -- and -- and tariffs and war. It's inherent authority all the way down, you say. Fine. Congress decides tomorrow, well, we're tired of this legislating business. We're just going to hand it all off to the President. What would stop Congress from doing that?

D. John Sauer: That would be different than a situation where there are metes and bounds, so to speak. It would be a wholesale abdication.

Justice Gorsuch: You say we -- we -- we are not here to judge metes and bounds when the foreign affairs. That's what I'm struggling with. You'd have to have some test. And if it isn't the intelligible principle test or something more -- with more bite than that, you're saying it's something less. Well, what 1 is that less?

D. John Sauer: I think what the Court has said in its opinions is just that it applies with much less force, more limited application in this context. So perhaps the right way to approach it is a very, very deferential application of the intelligible -- intelligible principle test, that -- that sort of wholesale abdication of -- don't like to --

Justice Gorsuch: All right. So now you're admitting that there is some nondelegation principle at play here and, therefore, major questions as well, is that right?

D. John Sauer: If so, very limited, you know, very, very deferential --

Justice Gorsuch: Okay.

D. John Sauer: -- and limited is what -- and, again, the phrase that Justice Jackson used is it just does not apply, at least --

Justice Gorsuch: I know, but that's where you started off, and now you've retreated from that as I understand it.

D. John Sauer: Well, I think we would as our frontline position assert a stronger position, but if the Court doesn't accept it, then, if there is a highly deferential version --

Justice Gorsuch: Can you give me a reason to accept it, though? That's what I'm struggling and waiting for. What's the reason to accept the notion that Congress can hand off the power to declare war to the President?

D. John Sauer: Well, we don't contend that. Again, that would be --

Justice Gorsuch: Well, you do. You say it's unreviewable, that there's no manageable standard, nothing to be done. And now you're -- I think you -- tell me if I'm wrong. You've backed off that position.

D. John Sauer: Maybe that's fair to say.

Justice Gorsuch: Okay. All right. Thank you. (Laughter.)

D. John Sauer: Because that would be, I think, an abdication. That would really be an abdication, not a delegation.

Justice Gorsuch: I'm delighted to hear that, you know. Okay. All right. And then I wanted to return to something Justice Sotomayor asked under this statute, okay, so now we're in this statute. It's a major questions question, though. Could the President impose a 50 percent tariff on gas-powered cars and auto parts to deal with the unusual and extraordinary threat from abroad of climate change?

D. John Sauer: It's very likely that that could be done. That would be very likely.

Justice Gorsuch: I think that has to be the logic of your view.

D. John Sauer: I think -- yeah. In other words, I mean, obviously, this Administration would say that's a hoax, it's not a real crisis, but -- but, obviously --

Justice Gorsuch: I'm sure you would.

D. John Sauer: Yes, but that would be a question for Congress under our interpretation, not for the courts.

Justice Gorsuch: All right. And then, on this inherent authority idea, does -- 1 I -- I take -- I understand the President's inherent authority in wartime and a lot of your examples of regulating commerce and maybe your best one, Hamilton during the Civil War, they -- they occurred during wartime, when the President's commander-in-chief power is clearly in play. Does the President have inherent authority over tariffs in peacetime?

D. John Sauer: No, we do not contend that.

Justice Gorsuch: Okay.

D. John Sauer: And, in fact, and I'd cite, if I may, I'd point the Court to two cases. They're Loving against United States and then Mazurie that's cited in Loving. Those are situations -- for example, Loving against United States, the President had broad Article II inherent authority. There was the commander-in-chief power. But this Court held he does not have inherent authority to do the power that was delegated to him, right, which was the power to, you know, identify aggravators that make you eligible for the death penalty in court-martial trials. 1 And yet this Court said, well, we're not going to see a delegation problem here, even though it's really a wholesale delegation, which would otherwise be legislative authority. It would be kind of like a small version of what your hypothetical would be, an abdication. But, because you're in a foreign affairs context or there commander-in-chief, a military context, where the President has his own delegation of authority, he doesn't have the power to do this, but, because of his background inherent authority, the Court said this is a situation where we're not going to see a delegation problem when there clearly would have been a delegation problem in the domestic context. And those cases, I think, are powerful here.

Justice Gorsuch: General, if I can cut through those words, I think you're saying that, no, the President doesn't have inherent authority over tariffs in peacetime.

D. John Sauer: Absolutely. That is --

Justice Gorsuch: Okay.

D. John Sauer: We do not assert that. 1 We say that Congress can delegate that to him. And when Congress does so, as it does when it uses the frayed -- phrase "regulate importation" --

Justice Gorsuch: I -- I -- I -- I follow all -- all of that.

D. John Sauer: Yes. I agree with that. I agree.

Justice Gorsuch: Okay. You emphasize that Congress can always take back its powers. You mentioned that a couple of times. But don't we have a serious retrieval problem here because, once Congress delegates by a bare majority and the President signs it -- and, of course, every president will sign a law that gives him more authority -- Congress can't take that back without a super majority. And even -- you know, even then, it's going to be veto-proof. What president's ever going to give that power back? A pretty rare president. So how -- how should that inform our view of delegations and major questions?

D. John Sauer: I would look at the balance that Congress struck because what Congress did, initially, it had a two-House 1 legislative veto that was held unconstitutional in Chadha --

Justice Gorsuch: And we struck that down, yeah.

D. John Sauer: -- and then Congress went back to the statute and amended it.

Justice Gorsuch: Yeah.

D. John Sauer: It took out the legislative veto and left in the joint resolution but still left the president with all those powers.

Justice Gorsuch: I'll spot you -- that's what they -- that's Congress did?

D. John Sauer: Yes.

Justice Gorsuch: Fair enough. As a practical matter, in the real world, it can never get that power back.

D. John Sauer: I disagree because, in January of 2023, Congress voted to terminate one of the biggest IEEPA emergencies ever, the COVID emergency, and the President went along with that. So what the statute reflects is there's going to be the ability for a sort of political consensus against a declared 1 emergency. Nevertheless, that's a political discipline.

Justice Gorsuch: But what happens when the President simply vetoes legislation to try to take these powers back?

D. John Sauer: Well, he has the authority to veto legislation to terminate a national emergency, for example. I mean, he retains the powers in the background because IEEPA is still on the books, but if he declares an emergency and Congress doesn't like it and passes a joint resolution, yes, he can absolutely veto that. Congress was --

Justice Gorsuch: Yeah. So Congress, as a practical matter, can't get this power back once it's handed it over to the President. It's a one-way ratchet toward the gradual but continual accretion of power in the executive branch and away from the people's elected representatives.

D. John Sauer: I disagree with that. And the recent historical counterexample of Congress's termination of the COVID emergency demonstrates that political -- the political oversight that's baked into the statute's --

Justice Gorsuch: With the President's assent.

D. John Sauer: -- meaningful fold.

Justice Gorsuch: With the President's assent. In fact, you know --

D. John Sauer: Once he lost it by a veto-proof majority in the Senate, I think the position is moot.

Justice Gorsuch: Yeah. Right?

D. John Sauer: I think he realized -- and that's -- that's the political process working. There was a little consensus against it to coalesce.

Justice Gorsuch: Yeah. It takes a super-majority, a veto-proof majority to get it back. Yeah. Okay. One other question. Do you think tariffs are always foreign affairs?

D. John Sauer: I do think they would -- I can't think of a situation where they're not foreign-facing if you're talking about tariffs on imports. I mean, maybe there are other tariff contexts that I'm not aware of, but, yes, they typically would involve a foreign affairs thing. 1 However, as in Gibbons against Ogden, if they are revenue-raising tariffs, they would not raise the same sort of, like, foreign affairs issues as regulatory tariffs, which are imposed not for the purpose of raising revenue but to induce foreign powers to change their behaviors and --

Justice Gorsuch: So revenue-raising tariffs are not foreign affairs, but regulatory tariffs are?

D. John Sauer: I don't think a revenue-raising tariff would be foreign affairs to the same degree at least. I think it has a foreign application, obviously, but I don't think it would raise the same issues.

Justice Gorsuch: Okay. Thank you, General.

Chief Justice Roberts: Justice Kavanaugh?

Justice Kavanaugh: Figuring out what "regulate importation" means is -- is obviously central here, and for major question purposes, I think the way we think about that kind of question is, does the specific authority, power, major power now asserted pursuant to 1 that general statutory authorization, was that the kind of power that would have been understood by people, by Congress at the time the general statute was passed, as distinct from being a novel kind of use of that general authority to do something different? "Unheralded" is the word in our cases. Okay. One problem you have is that presidents since IEEPA have not done this. Your primary answer or one of your many answers to that is the Nixon example, and that's a good example for you because Nixon relied on "regulate importation" to impose a worldwide tariff. Good example. What is our understanding of Congress in 1977 vis-à-vis that Nixon example when Congress re-enacts or enacts the "regulate importation" language into IEEPA?

D. John Sauer: Congress at that time was fully aware that a court of appeals with exclusive jurisdiction had interpreted that very phrase very visibly, very prominently, to include the power to tariff and then re-enacted it without change. The Court addressed a kind of lesser situation in Algonquin when it came 1 to Section 122, and the Court said President Nixon -- the Court said President Nixon interpreted this to include a -- a tariffing power, a tariffing-like power. And then Congress a few months later re-enacted the language without change, and that's powerful evidence of congressional acquiescence. So that immediately historical background is very powerful. And it's buttressed, of course, by sources going back to the founding, where we say the phrase "regulate importation," a quintessential application of that is the power to tariff. That's how you regulate imports, is from --

Justice Kavanaugh: Why -- this may require some speculation on your part, economic philosophy, et cetera, but I'll ask it. Why do you think Presidents Clinton, Bush, Obama have not used IEEPA to impose tariffs on -- because there have been trade disputes and, certainly, you know, President Bush, steel imports and the like. Why do you think IEEPA has not been used?

D. John Sauer: If you look at those 69 emergencies, in fact, you go through them 1 one at a time, which we had our team do --

Justice Kavanaugh: Mm-hmm.

D. John Sauer: -- it's really hard to find one where you look at that emergency and you say, oh, tariffs is the natural tool that you would use to address that emergency. So, for example, the blood diamond emergency, you know, tariffing these sort of, you know, criminal organizations in Africa that are financing terrorism through the sale of diamonds, you don't really tariff them. Or you take, you know, the Iranian hostage crisis, President Carter didn't say, oh, you seized all of our, you know, embassy personnel, you're holding them hostage, we're going to tariff you. Right? And if you go through those emergencies, there are two emergencies, though, where tariffs are the obvious natural tool for a president to use. One is the Nixon balance-of-payments deficit problem, and the other is these -- this particular emergency. And also, there's political reasons. And they weren't just solved.

Justice Kavanaugh: But I think the question --

D. John Sauer: I think that it's no question that President Trump is by far the most comfortable with the tariffing -- tariffs as a tool both of, you know, economic and foreign policy than many of the others, other presidents may have been. I mean, there are presidents like President Bush who, you know, probably wouldn't have naturally, you know, selected that particular tool or method. But, if you go through all 69 of those intervening emergencies, what they have not done at least is they have not identified where they say, oh, here's one where tariffs would have been the obvious tool, but the president didn't use it.

Justice Kavanaugh: Algonquin, as you've mentioned many times, is obviously very important here for us to understand exactly what's going on in Algonquin. The phrase there is different, "adjust imports." And they -- they really, the other side, your friend on the other side, really relies on the difference with language. And I just want you to -- to give your best answer to why "regulate importation" 1 encompasses tariffs when "adjust" -- we -- we held that "adjust imports" would -- would encompass monetary exactions.

D. John Sauer: Sure. Three answers if I may.

Justice Kavanaugh: Mm-hmm.

D. John Sauer: "Adjust" is narrower than "regulate." And so, therefore --

Justice Kavanaugh: So --

D. John Sauer: -- the greater includes the lesser.

Justice Kavanaugh: -- it follows --

D. John Sauer: Second answer, "adjust" is the -- is the second Black's Law Dictionary definition of "regulate." The Black's Law Dictionary -- the original plain-meaning dictionary definition says adjust by rule, mode, or -- rule, method, or established mode. So there's just a plain meaning link there. "Regulate" -- "adjust" is a form of -- is a kind of regulation. And then I think far more importantly, "regulate importation," I can't emphasize enough, going back to the time of the founding -- going back to the time of the 1 founding has been understood that the manner in which you regulate importation, the natural way to do that is to tariff. So it would be textually astonishing given that historical pedigree going back to Gibbons, going back to, you know, Madison's letter to Cabell, and all the historical sources cited in our briefs, it would be kind of astonishing to say, hey, President, you can regulate imports, but -- we're not saying this explicitly, but you do not have the power to tariff when the -- the tariffing is the -- in many ways, the quintessential way of regulating importation. So -- so that historical pedigree, you know, sort of gives freighted meaning to that two-word phrase.

Justice Kavanaugh: And, last, you had some discussion about license fee versus tariffs, if there's a distinction. I mean, the counsel in -- in the oral argument in Algonquin said they're all moneys exacted on imports, so, in that sense, it certainly is a tariff and hence all the incidents and the economic effect of a tariff. But we can't rely on what the counsel 1 said in Algonquin. You know, isn't there a -- a difference of sorts at least between a tariff and a license fee? You answered this, I think, briefly before, but I want to make sure because I think this could be an important point because I want to know Algonquin to decide this case. So --

D. John Sauer: Yeah. I --

Justice Kavanaugh: -- give your best shot on that.

D. John Sauer: -- I agree that there is maybe in -- there's a formal distinction.

Justice Kavanaugh: Mm-hmm.

D. John Sauer: But, as a practical matter, I think what counsel was probably arguing there is that there really isn't much of an important distinction. And I would point to the passage in Algonquin where the Court says, look, they've conceded that this includes the power to quota, and since quotas are a quantitative method, it would make no sense for Congress not to grant the qualitative method. And all the more so here if there's a concession, as they do in some of the red briefs, concede that --

Justice Kavanaugh: You know, at one time, the Court said monetary methods, i.e., license fees, and the next page said monetary exactions, i.e., license fees and duties.

D. John Sauer: Yeah. No, and I think the Court bought the argument correctly --

Justice Kavanaugh: It's important to be consistent.

D. John Sauer: -- that there's -- there's really not a lot of daylight between those two. As a practical matter, certainly, almost no daylight. And so then the question, as the Court said --

Justice Kavanaugh: When you say almost no daylight, just --

D. John Sauer: I mean, I would say that they're -- that they're economic equivalents. Legally, they're pretty much the same. So I really don't see a big distinction there. And, of course, the -- the -- the logic of Algonquin was you have a -- you know, quantitative methods are -- quotas are allowed. Therefore, it would make no sense at all to interpret this not to include the qualitative or the -- the monetary exaction methods. 1 Well, if -- if we're talking about a distinction between "regulate importation" including licenses that could come with fees but not tariffs, that logic applies all the more so --

Justice Kavanaugh: Thank you.

D. John Sauer: -- which makes no sense.

Chief Justice Roberts: Justice Barrett?

Justice Barrett: Well, I think, in Algonquin, there was a formal distinction that mattered because, at that oral argument, counsel pointed out that the Uniformity Clause would kick in, and the constitutional uniformity requirement would apply to tariffs if it was that way, and speculated that the reason that the government may have set it up as a licensing scheme with licensing fees was to avoid that. So I do think there are some distinctions, but keeping that in mind, if you say that there really is, as a practical matter, no difference, this is kind of what I'm hung up on in "license" that maybe you can 1 help. So, in IEEPA, Justice Sotomayor is right, "license" is used as a noun, but it's one of the means necessary. So, in Algonquin, it was "by any means necessary adjust." Here, the statute says the President may under such regulations as he may prescribe by means of instructions, licenses, or otherwise regulate importation, which is the key part for our purposes. So the means it specifies are instructions, licenses, or otherwise. So I think it would -- I -- I mean, one argument might be that it would have been natural for Congress to put the President may by means of instructions, licenses, tariffs, or otherwise, with an ejusdem generis thing, I think you have to rely on the "or otherwise" picking up more, or, if there really is no practical difference between licenses and tariffs, why aren't you making the argument or why didn't the President structure this as a licensing fee scheme? How do I understand that language, or -- or am I just misunderstanding it and this language is totally irrelevant?

D. John Sauer: I think that -- here is the way I'd respond to that. I think that language powerfully reinforces our position as the way you've laid it out right there because, first of all, "regulate importation" we say, and based on extensive historical pedigree, the core application of that is tariffing. To -- to list tariffing again would have been essentially redundant and unnecessary, especially if you look at the specific historical background of TWEA, where TWEA was enacting a tariffing power or a licensing-like power, you know, that was described as again duties and tariffs equivalently.

Justice Barrett: Okay. But I -- I -- I don't understand because I think you have to put together (a)(1) and then (b). So I think what you would be saying is he may prescribe by means of tariffs tariffs.

D. John Sauer: I think what you're saying is by means of instruments, licenses, or otherwise.

Justice Barrett: By instructions, licenses, or otherwise?

D. John Sauer: Yeah, instructions. Sorry. Yeah, instructions, licenses, or otherwise.

Justice Barrett: Impose tariffs? Okay.

D. John Sauer: That otherwise, I mean, if you say instructions, licenses, or otherwise, and we're asserting a power that's very, very similar to licensing --

Justice Barrett: The licensing?

D. John Sauer: -- "otherwise" naturally carries that with it. But that's not our principal position. Our principal position is "regulate importation" means that. Right?

Justice Barrett: Okay.

D. John Sauer: And so you don't need to say it again. However, if -- if -- Congress has authorized them to do it by licenses that could come with fees that are economically equivalent to tariffs and then says otherwise --

Justice Barrett: Then tariffs would be the neighbor.

D. John Sauer: -- you know, that just reinforces the same conclusion that we get by 1 using the phrase "regulate" --

Justice Barrett: Okay. Then a question just to follow up on Justice Gorsuch's thing about how could Congress ever get this delegation back, you said, well, listen, you point to the -- Congress's ability to terminate emergencies, which it's done. But, if Congress ever wanted to get the tariffing power back, it would have to have a veto-proof majority because, regardless of the emergency, so if Congress wanted to reject the -- let's say that we adopt your interpretation of the statute. If Congress said, whoa, we don't like that, that gives a president too much authority under IEEPA, it's going to have a very hard time pulling the tariff power out of IEEPA, correct?

D. John Sauer: Well, I don't know if it would be a hard time. Certainly, we'd have to have a statutory amendment --

Justice Barrett: Well, veto-proof --

D. John Sauer: -- which would be true of any case this Court definitively interprets the statute, yes, I think that the Court -- 1 Congress would have to pass a statutory --

Justice Barrett: But -- but definitively interpreting a statute that grants presidential power makes it particularly hard to get the President to not want to veto something, which, as Justice was pointing out -- Justice Gorsuch was pointing out, has him lose power. All right. I want to ask you a question about unusual and extraordinary threat, which we have not talked about yet, and I specifically want to talk about the reciprocal tariffs. These are imposed on -- I mean, these are kind of across the board. And so is it your contention that every country needed to be tariffed because of threats to the defense and industrial base? I mean, Spain, France? I mean, I could see it with some countries, but explain to me why as many countries needed to be subject to the reciprocal tariff policy as are.

D. John Sauer: Yeah. Executive Order 14257 spells out the nature of the emergency and basically says that there's this -- this 1 sort of lack of reciprocity, this asymmetric treatment, you know, our trade with respect to foreign countries, trade that does run across the board is a global problem. I think that puts in context the argument they make that this power to tariff is so broad because you're applying it to every country in the world. That conflates the nature of the tool, tariffing, which they're challenging here, with the nature of the declared emergency, which they haven't disputed. They haven't disputed, for example, that the President has correctly identified that virtually every major trading partner has this longstanding sort of asymmetric unfair treatment of -- of our trade. So the argument this power is so broad, this power is so broad is really based on a conflation of two different things. One is the power, right? Imagine this. Imagine that, for example, President Reagan had wanted to convince South Africa to change its apartheid policies and he imposed tariffs on them. 1 No one would bat an eyelash and say, well, that's too broad, that's too broad, that can't be in IEEPA. The power to tariff is a -- sort of fits naturally with all those powers to block, prohibit, and seize and so forth. What they're saying, and this so broad, because the emergency is so broad, but, of course, that's a presidential determination that -- and -- and there's all kinds of basis for it. And also keep in mind that the emergency is not like just the asymmetric treatment. It's the impact of the asymmetric, the underlying conditions, the hollowing out of our manufacturing base, you -- you -- you know, the -- the -- the vulnerability of our supply chains, and, of course, the -- the -- our defense and industrial base's vulnerability of key inputs.

Chief Justice Roberts: Justice Jackson?

Justice Jackson: So, as I understand your response to Justice Barrett in that last question, you're saying that the power to tariff fits naturally with the power to block and seize. That was your example. 1 But I guess I'm trying to understand then your argument from the text of the actual statute because the statute, unlike what you suggested to Justice Kagan, is focused on the actual actions that the President can take. In response to Justice Kagan, I understood you to say that Congress was giving the President broad authority to act and it was within a particular domain, which is the domain of emergencies with respect to foreign power, but the President could basically do a lot of things. But, when I read the statute, it is telling the President exactly what he can do, investigate, block during the pendency of an investigation, regulate, direct, and compel, nullify, void, prevent, or prohibit. And I guess what is a little concerning to me is that your argument suggests that we should see the word "impose" -- the phrase "impose tariffs" in that same series of things that the President could do. We don't see that word, and, instead, you take "regulate" and say that must mean that. So I guess I'm getting back to Justice 1 Barrett's maybe original question, which was where else in the Code has Congress used the word "regulate" to sub in for "impose tariffs"?

D. John Sauer: TWEA. And then this Court's opinions, of course, have used "regulate" and "import" or have -- point out that duties are the natural way to regulate foreign commerce. But yet the Court's --

Justice Jackson: But you're saying we should not have expected to see the same level of granularity with respect to the President's authority to impose tariffs as we see here, investigate, block, direct and compel, nullify, et cetera.

D. John Sauer: I think it would be very unusual for Congress to spell out all the ways that you can regulate in that.

Justice Jackson: So "regulate" becomes a big catch-all. The rest of the other things --

D. John Sauer: It's -- well, I mean, we have a concession of that from the other side that "regulate" at least includes qualitative methods, quantitative methods, quotas, you know, licenses. 1 They concede that "regulate" -- there's a lot in "regulate" that's not spelled out there. And our point is you don't need to spell out tariffs because that's like of all of them the most natural, the most quintessential method of regulating imports.

Justice Jackson: And yet -- and -- and -- and yet many, many presidents have not used regulate in this way to impose tariffs. I understand you point to President Nixon. We have licenses from Lincoln. But no one else.

D. John Sauer: As I said to Justice Kavanaugh, presidents who are faced with international crises to which tariffing is the natural response -- that's President Nixon and President Trump -- have invoked this authority. And also, frankly, President Trump invoked this authority in May of 2019 as well.

Justice Jackson: Can I ask you one question --

D. John Sauer: So it's more historically attested than they -- than they concede.

Justice Jackson: Let me just ask one 1 more question about the unusual threat. So, in your conversation with Justice Gorsuch that we had, the climate change tariff hypo and you indicated that there would be challengers to the notion that that was an unusual and extraordinary threat, and I'm just wondering, under your position, would they be able to make a legal challenge? Are you saying the Court would not be able to review that concern?

D. John Sauer: On that particular hypothetical, I think I said that would be a question for Congress.

Justice Jackson: So not a court?

D. John Sauer: Yeah. I don't -- in other words, that wouldn't be the sort of thing the courts are going to weigh into, is this really an emergency. You know, that would not be -- probably very unlikely. That would be a situation where at least there would be very, very, very deferential judicial review of that kind of determination, a legal dispute, but --

Justice Jackson: No, I'm asking you -- right. Those are two different things. Is there no judicial review or is there deferential judicial review?

D. John Sauer: Our front line -- I mean, Trump against Hawaii, our front-line position is that it falls within Dalton against Specter, it's committed at the President's discretion when he makes his determination of a national emergency, but the Court doesn't have to decide that because whatever review is very, very deferential and it's easily satisfied here.

Justice Jackson: Thank you.

Chief Justice Roberts: Thank you, counsel. Mr. Katyal. ORAL ARGUMENT OF NEAL K. KATYAL ON BEHALF OF THE PRIVATE PARTIES

Neal K. Katyal: Thank you, Mr. Chief Justice, and may it please the Court: Tariffs are taxes. They take dollars from Americans' pockets and deposit them in the U.S. Treasury. Our founders gave that taxing power to Congress alone. Yet, here, the President bypassed Congress and imposed one of the largest tax increases in our lifetimes. Many doctrines explain why this is illegal, like the presumption that Congress 1 speaks clearly when it imposes taxes and duties and the major questions doctrine. But it comes down to common sense. It's simply implausible that in enacting IEEPA Congress handed the President the power to overhaul the entire tariff system and the American economy in the process, allowing him to set and reset tariffs on any and every product from any and every country at any and all times. And, as Justices Gorsuch and Barrett just said, this is a one-way ratchet. We will never get this power back if the government wins this case. What president wouldn't veto legislation to rein this power in and pull out the tariff power? IEEPA is a sanction statute. It's not a tax statute where Congress gave away the store. Congress knows exactly how to delegate its tariff powers. Every time for 238 years, it's done so explicitly, always with real limits. IEEPA looks nothing like those laws. It uses "regulate," which Congress has used hundreds of times, never once to include tariffs. And it lacks the limits of every 1 other tariff statute. And that is why, even though presidents have used IEEPA to impose economic sanctions thousands of times, no president in IEEPA's 50-year lifetime has ever tried to impose tariffs. And the President bypassed statutes that do address tariffs, like Section 122 for large and serious trade deficits, but that imposes a clear guardrail, 15 percent cap, 150-day limit. This is Youngstown at its lowest ebb. If the government wins, another president could declare a climate emergency and impose huge tariffs without fines or -- without floors or ceilings, as Justice Gorsuch said. My friend's answer? This administration would declare it a hoax. The next president may not quite say that. This is an open-ended power to junk the tariff laws and is certainly not conveyed by the -- by the word "regulate." I welcome the Court's questions.

Justice Thomas: Wouldn't your argument also apply to embargoes?

Neal K. Katyal: So -- and this is the argument in the -- in the fine dissent below. 100 And I think there are three answers to that, Justice Thomas. The first is revenue-raising. Embargoes stop the shipment. Tariffs start the tax bill. They are first and foremost ways of regulating revenue, as some of your own opinions said. This is the way we actually chiefly got revenue for the first hundred years of our republic. Tariffs are constitutionally special because our founders feared revenue-raising, unlike embargoes. You know, there was no Boston embargo party, but there was certainly a Boston tea party. The second thing, textually, in the statute, it's different. "Regulate" appears in a cluster of verbs, as was said before, "investigate," "block," "nullify," and the like. They describe embargo-like controls, "prevent" and "prohibit," for example. But they don't describe revenue exactions. That's Justice Kagan's point. The one verb that's missing here is anything about raising revenue whatsoever. Another point, congressional displacement. Today, there's a whole host of 101 statutes in the tariff architecture of Title 19 which both expressly confer the power to tariff and always impose clear limits. Embargoes by the President -- embargoes don't have any of that. They don't set aside that whole thing. If you look at the Learning Resources brief at page 5, it goes through these statutes in detail. Section 122 expressly says "duties" and then limits it, 15 percent, 150 days. Section 201, any duty on the imported article, but it requires ITC findings. Section 301, impose duties. That's the language of the statute, but all sorts of procedural restrictions. Section 338, the same. I can go through this and I could start, by the way, Justice Thomas, with the statutes at the founding, all of which expressly said the word "tariff" or an equivalent.

Justice Thomas: Let's go back to your nondelegation point. It would seem that if it's -- if the power, tariff power, cannot be delegated, your argument on nondelegation would also have to apply to embargoes and to quotas.

Neal K. Katyal: No, Your Honor, because I 102 think tariffs, because they're uniquely revenue-raising, impose special, unique concerns that go back to our founding. And so I don't think that they apply to embargoes. And, indeed, the history of this is very -- very clear, that as you just heard my friend say, in 1790, George Washington was delegated massive embargo power from the Congress. But what did Congress not do? And this is why the example cuts the other way. They never gave the president any sort of delegation of tariff authority at the time. Our point is not you can't delegate tariff authority. It's simply that you've got to do so with intelligible principles. And what you just heard my friend say is every single limit in IEEPA is one that is not judicially enforceable, there's no limit whatsoever, and, indeed, the main limit that was in there -- he calls this some compromise position -- the only compromise in 1977 was the legislative veto. And, as this case comes to the Court, that's no longer in the statute at all. So --

Chief Justice Roberts: Counsel, 103 you -- yes, sure, the tariffs are a tax and that's a core power of Congress. But they're a foreign-facing tax, right, and that -- foreign affairs is a core power of the executive. And I don't think you can dismiss the consequences. I mean, we didn't stay this case. And one thing is quite clear, is that the foreign-facing tariffs -- tariffs have in several situations been quite --

Neal K. Katyal: Right, and we are --

Chief Justice Roberts: I'm sorry.

Neal K. Katyal: Oh, sorry. I'm sorry.

Chief Justice Roberts: Were quite effective in achieving a particular objective. So I -- I don't think you can just separate it. When you say, well, this is a tax, Congress's power, it implicates very directly the President's foreign affairs power.

Neal K. Katyal: Yeah. Mr. Chief Justice, we're not -- we don't disagree with a large part of that. We think, instead of thinking about foreign versus domestic, the better way of thinking about it is Article I versus Article II. And, as my friend finally conceded to Justice Gorsuch, there is no Article II 104 power here at least when we're talking about peacetime. So --

Chief Justice Roberts: Well, you don't agree with a large part. What's the little part that you do agree with?

Neal K. Katyal: So we -- we -- we agree -- we agree with the idea that tariffs have foreign policy implications, absolutely. Our founders recognized that. That's in the Federalist Papers. But, nonetheless, they exclusively committed that power to the Congress in Article I, Section 8, and gave it as its first power. So, when you hear my friend cite cases like Egan and Garamendi, they just don't apply to this specific unique situation in which Congress is given that power. And if you were tempted by this, I think -- I think the best place to look is Youngstown because what Justice Jackson said -- and I was surprised that he quoted pages 652 because what Justice Jackson said is, "Emergency powers tend to kindle emergencies, so it's essential the public may know the extent and limitations of the powers that can 105 be asserted and persons affected may be informed from the statute of its rights and duties." And Justice Jackson went on to say there that it's notable our founders didn't give the -- didn't give the president revenue-raising power even in a time of war.

Justice Kavanaugh: Can I just get a clarification of your answer, which is you agree, if the word "tariff" were in the statute, that would be acceptable and constitutionally permissible, correct?

Neal K. Katyal: No. Well, it -- it would be -- it'd be constitutionally permissible. The question would then be is the open-ended assertion of power here because every other tariff statute has limitations.

Justice Kavanaugh: Right. I -- I get as applied to this case. But the general point is, yes, Congress -- you say it's assigned to Congress. But Congress can grant authority to presidents to impose tariffs --

Neal K. Katyal: Absolutely.

Justice Kavanaugh: -- as a general proposition.

Neal K. Katyal: Absolutely.

Justice Kavanaugh: Okay. So we have to figure out then what "regulate importation" means. And you've heard my questions. If this statute came out of nowhere in 1977, I think your case would be, you know, obviously stronger. We have to figure out, at least I want to figure out, what the Nixon precedent stands for and what Algonquin stands for. On the Nixon precedent, the question is, I think, was Congress aware of that? Meaning that when they used "regulate importation" and it's now being used to encompass tariffs, that's not unheralded because Congress was well aware -- you know, President Nixon announced those tariffs in a nationwide prime-time speech, 10 percent across the board in August 1971. It was not some kind of little piece of paper. So it was well-known. The question then is, was Congress -- why didn't they change the language? Why didn't they say "regulate" but not "tariffs"? That's kind of the -- the difficult question from the Nixon precedent that I'll give you an 107 opportunity --

Neal K. Katyal: Thank you, Justice Kavanaugh. So five answers on the Nixon precedent. First, there is no evidence that Congress thought it was ratifying Yoshida. It was a single court of appeals case, not even a circuit --

Justice Kavanaugh: It's -- it's not so -- my question -- I never mentioned Yoshida. It's the use by the president of that power under "regulate import" -- "importation."

Neal K. Katyal: Oh. If we're just talking about that, President Nixon did not rely on the statute whatsoever. And that's very clear. In fact, we have a Marshall McLuhan moment here because you have before you Alan Wolff, the person who was there in the room with Nixon, saying Nixon totally disagreed that this statute applied.

Justice Kavanaugh: Okay.

Neal K. Katyal: So, if we're just talking about Nixon, I don't think it can get the government where it wants to go.

Justice Kavanaugh: The example. Go to your other four. Your other four?

Neal K. Katyal: Yeah. So I think the only way it does any work is if the President -- is through the -- the vehicle of Yoshida. And that's what I take it --

Justice Kavanaugh: Okay.

Neal K. Katyal: -- the government is arguing. And with respect to that, this cert-denied intermediate court of appeals decision I don't think can come close to overcoming the clear, plain text. The word "regulate" is -- words "regulate importation" -- the word "regulate" has never been used. It's been -- Congress uses the term 1499 times. We got about that number of hits when we looked at it, and maybe there's some double-counting. But it is never used even once to impose taxes or revenue-raising. And that was the question that Justice Barrett was asking. And so I don't think that this intermediate court of appeals decision will get you there. And then, even if you thought that Congress knew about Yoshida and even if you thought they liked it, which there's absolutely zero evidence of, I don't think that helps the 109 government for reasons that Justice Alito was pointing to because Yoshida said three things: (a) TWEA doesn't give the unlimited authority that the government is seeking here; (b) they were only upholding the -- the limited specific assertion of authority that President Nixon sought there; and, third, going forward, the solution they said in Footnote 33 was to use Section 122 of the 1974 Trade Act, 15 percent, 150 days. So we have no problem with the President doing that. It's just that this President has torn up the entire tariff architecture. You know, for example, he's tariffing Switzerland, one of our allies, which we have a trade surplus, 39 percent. That is just not something that any president has ever had the power to do in our history. And the idea that Congress, by implication, did this in 1977 and handed him all this power, I think, is really difficult.

Justice Kavanaugh: Just --

Justice Alito: Mr. --

Justice Kavanaugh: -- to ask the other --

Justice Alito: -- Katyal --

Justice Kavanaugh: Go ahead.

Justice Sotomayor: Mr. --

Chief Justice Roberts: Justice Alito?

Justice Alito: Let's start with just the bare statutory language. You have arguments about structure. You have arguments about history. They're strong arguments, but let's just start with the bare statutory language: "regulate importation." If we disregard all of the rest, would you dispute that that would include the imposition of a fee?

Neal K. Katyal: So, if it's revenue, yeah, we do dispute that, absolutely.

Justice Alito: What if there were a statute that said -- I mean, suppose that there's a particular national park that's very crowded, and Congress passes a statute that says the National Park Service may regulate admission to the park. Would you say, well, that does not allow them to impose a fee?

Neal K. Katyal: So, you know, Your Honor, sometimes we think of fees as not revenue-raising but rather capturing the cost 111 of government services, in your example, the going to the park. That may -- you know, those kinds of cases, which I think we've struggled with --

Justice Alito: Suppose it goes beyond the -- the -- the cost of -- of running the park. Congress just wants to control admission to the park, regulate admission. Wouldn't that include the imposition of a fee?

Neal K. Katyal: So, if -- if it doesn't raise revenue, then -- and it's not about that, then I think that's fine. If it does --

Justice Alito: It -- it raises revenue. That's the --

Neal K. Katyal: -- then I think it's a tougher --

Justice Alito: -- that's the hypothetical. That wouldn't -- that wouldn't apply?

Neal K. Katyal: So I think -- I think in that circumstance that it wouldn't be a regulation in context and wouldn't be permitted. That is, at least in the context of tariffs and trade, we know, Justice Alito, from the founding on --

Justice Alito: Okay. Well, that -- that gets into your other arguments. We start out with the bare statutory language, and that's -- that was what my question was about. Do you think all tariffs are revenue-raising? Suppose that instead of imposing these -- these across-the-board tariffs, suppose that an executive order imposed a tariff on one particular country and provided that this would take effect in 90 days. And suppose that within those 90 days an agreement is reached with that country so that no tariff -- no -- no tariff is ever collected. Would that be a revenue-raising tariff?

Neal K. Katyal: I take it the initial point was and on its face it is revenue-raising, that that's what it's for, and so I think that would. And, look, I don't doubt that there are edge cases. That is what this Court confronted just recently in FCC versus Consumer Research. And you said, look, what is a tax is sometimes very hard, what is revenue-raising. This is obviously revenue-raising. 113 Their own brief to the Court says it's going to raise $4 trillion. And, Justice Alito, you in your Consumers Research dissent or Justice Gorsuch's dissent that you joined said taxation is special and different and it is the most powerful thing the government does. And the idea that Congress, when they know exactly how to write tariff and tax statutes, gave this power by implication through the word "regulate" I think is very, very hard to --

Justice Alito: Well, you -- you cite many different statutory provisions that impose tariffs, and -- and you have a point if that's the relevant universe. What if the relevant universe is tariffs that are imposed in emergency situations?

Neal K. Katyal: Yes. So I think it cuts the other way. So, you know, as Justice Jackson said, it's -- when you're in an emergency situation, the statutes actually have to speak with more precision. The public needs to know because emergencies beget emergencies. 114 And I would say the best way of understanding what Congress does in emergencies is to look at their emergency statutes. Not one has ever given the president a taxation power or a tariff power. We've had all sorts of emergencies for 238 years. No president has ever said, oh, the way to deal with that is I need to have a tariff authority. And, as Justice Sotomayor said, IEEPA gives already a quota power. So you can get what the foreign policy piece of it is through that. I'd also say, Justice Alito, Dames & Moore, which the Chief Justice referred to earlier, I think is really important here because the Solicitor General in that case made a similar argument to what you just heard on -- on the claims provisions. He said it falls within "regulate." "Regulate" is a capacious term. He said, Justice Alito, what you said, this is an emergency situation. And he said you've got to defer to the President on a major issue of national security about this very statute. And what did the Court do? It rejected those arguments and said IEEPA doesn't 115 cover this --

Justice Alito: You say that this is not -- this case does not -- these executive orders do not address an unusual and extraordinary threat. I understand that argument. Suppose that the facts were that it was in -- suppose that there was an imminent threat of war, not a declared war but an imminent threat of war with a very powerful enemy whose economy was heavily dependent on U.S. trade. Could a president under this provision impose a tariff as a way of trying to stave off that war, or would you say, no, the president lacks that power under this provision?

Neal K. Katyal: Couldn't do tariff but could do quota, embargo, all of those things.

Justice Alito: Could do all those things, but the president could not impose a tariff.

Neal K. Katyal: Because there's a cat --

Justice Alito: That's the one thing he couldn't do.

Neal K. Katyal: There's a category shift 116 between a tariff and the other eight powers in IEEPA because it is revenue-raising. So it's not a difference in degree or something like that. That's why, you know, I don't doubt tomorrow --

Justice Alito: Even if the purpose of this had nothing whatsoever to do with raising one penny. The president didn't want to raise one penny. The president wanted to deter aggression that would bring the United States into war.

Neal K. Katyal: Just --

Justice Alito: You would say no, can't do that?

Neal K. Katyal: Yeah, Justice Alito, I think you've said many times the purpose isn't what you look at. You look to actually what the government is doing. And if you disagree, if you think we're -- you know, if you think -- or, excuse me, if -- if -- if you ruled for us and the president says, I need this power, he could go across the street to Congress tomorrow and get it by a simple majority through reconciliation. 117 But, if you vote for them, this power, as Justice Gorsuch said, as Justice Barrett said, is going to be stuck with us forever. The power to --

Justice Gorsuch: Mr. Katyal, I want --

Justice Kavanaugh: Can I ask you -- go ahead.

Justice Gorsuch: Okay. I just wanted to give you a chance to address kind of the other argument that's been submerged here textually, again, just bare text for a moment, okay? We've been focused on "regulate importation," but, actually, the statute says the President may by means of licenses or otherwise regulate importation. And we've had some discussion today about the fact that maybe the President could simply recharacterize these tariffs as licenses or rejigger the -- the -- the scheme so that they are licenses. We've also heard the suggestion that otherwise, you know, licenses and -- and -- and tariffs are very similar, so "otherwise" might 118 encompass tariffs there. Thoughts?

Neal K. Katyal: Yeah, a few thoughts, Justice Gorsuch. First is the SG is not even making that argument, and I think they're not making it for a number of reasons. One is that there's a strong presumption against reading statutes this way. In the unique tax and duties context, Hartranft is one of those cases which says, if there's doubt, you don't read the statute to confer such powers. Second, if you were to do that, it's open-ended. It allows -- and this is your hypothetical -- it allows under the word "license" them to tariff the world, you know, and -- and --

Justice Gorsuch: It seems like you're putting a major questions thumb or an interpretive lens thumb on the plain text there. Is that fair?

Neal K. Katyal: I think it's -- I think you could call it major questions. I just think it's like Justice Barrett said in Nebraska versus Biden the most natural way of 119 understanding what this statute is about. We're talking about, under the government's reading, a statute that gives the power to the President to junk the entire tariff --

Justice Gorsuch: No, I -- I understand that, but you're not disputing "licenses or otherwise" means what it says. You're -- you're -- you're saying that we should interpret that narrowly for particular reasons.

Neal K. Katyal: So I think -- well, I think I am disputing it as well. I think the licenses is something Justice Sotomayor was saying don't expand the power. They are not verbs. And so it is limited to the nine verbs there.

Justice Gorsuch: No, I understand that.

Neal K. Katyal: And so "regulate," I don't think --

Justice Gorsuch: Thank you.

Neal K. Katyal: Yeah.

Chief Justice Roberts: Thank you, counsel. 120 Justice Thomas, anything further?

Justice Thomas: I'd like to just revisit the point that Justice Alito was making with a similar question. If one of our major trading partners, for example, China, held a U.S. citizen hostage, could the President, short of embargoing or setting quotas, say the most effective way to gain leverage is to impose a tariff for the purpose of leveraging his position to recover our hostage?

Neal K. Katyal: No, Your Honor. So tariffs are different because they're revenue-raising, and they're -- and I think it goes to the point I was saying to you in our very first colloquy, which is quotas, embargoes, and stuff are different for a different reason, which is there's no -- there is a tariff architecture around Title 19, in Title 19, that a tariff would -- like in your hypothetical, would supersede. And, here, the President is seeking the power to set aside all of our trade treaties unilaterally under the word "regulate." I just don't think it can bear 121 that weight.

Justice Thomas: That's it.

Chief Justice Roberts: Justice Alito?

Justice Alito: You mentioned other tariff provisions that you think would be rendered redundant if we adopted the government's interpretation of IEEPA. One that you didn't mention, which is discussed in an amicus brief, is Section 338 of the Tariff Act of 1930. Why doesn't the plain language of that provision, which does speak specifically about duties, provide a basis for all or virtually all of the tariffs that are at issue here?

Neal K. Katyal: Yeah. The government's never made that argument, Justice Alito, and I think for very good reason, because it only applies to MFN violations, which are not at issue here. You can only tariff if the President "finds as a fact that a country satisfies two conditions, including that it discriminates against the United States." There are all sorts of hosts of other reasons why Section 338 may have lapsed and that's why no President has ever used it. But, 122 look, we are --

Justice Alito: What is the -- what is the argument that it's lapsed? It's -- it's regrettable -- I mean, we put this case on a very expedited schedule and, therefore, there are limitations on what -- and the parties' ability to answer each other's arguments or arguments that are made by amici. The -- the amicus brief says that it hasn't lapsed. There are articles that say it hasn't lapsed. What is your argument -- what is the basis for your argument that it lapsed?

Neal K. Katyal: So two things, Justice Alito. Sections 252 and 301 have been understood by many to have superseded Section 338. And, second, I don't think you have to get into this issue at all. We're not here saying that the government doesn't have a 330 -- 338 power. That's something that can be decided by other courts at other times. As these folks come to the Court, as the government comes to the Court today, they're citing one statute and one statute only, IEEPA, and we submit to you it doesn't come even close to authorizing these worldwide 123 tariffs that they're seeking today.

Justice Alito: Well, what if the President tomorrow were to say, I'm reissuing these executives orders and -- and I'm invoking, in addition to other authorities, Section 338 of the Tariff Act of 1930?

Neal K. Katyal: So I think, at that point, we'd have that case. I mean, I'm not here to say that 338 does or doesn't do one thing. I'm responding to the government's argument, which is the invocation of IEEPA and IEEPA alone. But perhaps that point, Justice Alito, may give them some comfort --

Justice Alito: So then, I -- I -- I mean, I understand party presentation and -- and all of that and not being a court of first view, but, in these circumstances, if that were to happen and it might be a realistic possibility, you think, well, okay, then the government would continue to try to collect these tariffs and the plaintiffs here would have to go back to the Court of International Trade or the district court and challenge it again, and it would have to progress through 124 those lower courts and come back to us when, a year from now, six months from now, while the tariffs continue to be collected and the amount that's at stake mounts into the billions? I mean, what are we at now? A hundred billion? We get up to -- up to a trillion? That's what you're suggesting?

Neal K. Katyal: So, Justice Alito, I think a few things. One is I think it's rich for the government to be making this argument about the refunds undermining us because they opposed a preliminary injunction in this case by saying, oh, don't worry, we'll give the refunds later and they sought a stay in the Federal Circuit on exactly that ground, which was you don't need to do -- you don't need to implement the Federal Circuit's decision because we'll give the refunds later on. And now they're suggesting that the reason it's too late --

Justice Alito: Well, that really wasn't -- that wasn't my question, Mr. Katyal. The question was whether it would make more sense for us to address that if that is a possible justification for these tariffs, for 125 us to address that now --

Neal K. Katyal: I --

Justice Alito: -- and get it over with rather than having this continue for who knows how long while it goes through the -- through the procedures in the lower courts.

Neal K. Katyal: Justice Alito, I think that is forfeit -- forfeited nine ways to Sunday. This amicus brief has been filed in every single stage of this case. The government's never embraced that argument. For them to be able to do so now, I think, is -- is way, way too late. But I do think, if you ruled, as we're suggesting you do, against the government, they can go and try and seek to use other authorities, whether it's 338, Section 122, et cetera. Those are the ways prescribed by the Congress. And, as Justice Kavanaugh was saying earlier, every other president has used all this suite of other authorities, 201 for steel, for -- for autos and things like that; 301 for countries like China. This President has come along and said something different, and with all due respect, we don't think IEEPA allows 126 him to do this junking of the worldwide tariff architecture.

Justice Alito: And what was the view -- what were the views of President Trump's immediate predecessors on the question of imposing tariffs or allowing free trade? What was their policy view on that question?

Neal K. Katyal: There's been a variety of different views about that, but, you know, the executive or -- my friend said, well, prior presidents had no occasion to use the tariff power, which is belied by the very executive order he's defending here, which says that the trade deficits have been large and persistent every single quarter since 1976. And we've had trade wars. President Reagan initiated, you know, different ones and the use of different authorities. But never once did a president try and seek IEEPA as the basis to rewrite the entire tariff code.

Justice Alito: I found it interesting to hear you make the nondelegation argument, Mr. Katyal. I -- I wonder if you ever thought that your legacy as a constitutional advocate would be the man who revived the nondelegation 127 argument. (Laughter.)

Neal K. Katyal: Heck, yes, Justice Alito. I think Justice Gorsuch nailed it on the head when saying that when you're dealing with a statute that -- that is this open-ended, unlike anything we've ever seen to give the President this kind of power, yes, this isn't just delegation running riot; this is delegation that's a legislative abdication.

Justice Alito: I mean, wouldn't you -- wouldn't you agree that statutes that confer on the President real emergency powers are often phrased much more broadly than other statutes? Isn't that the very nature of an emergency? I know you dispute the fact that this is a real emergency. Maybe it's not. But isn't it the very nature of an emergency provision that it's going to be more open-ended?

Neal K. Katyal: So, Justice Alito, we think it actually cuts the other way, as I was saying earlier. That's what Justice Jackson said. And, you know, you already confronted that in Dames & Moore and said it's not that 128 open-ended even though it's an emergency. And, by the way, other emergency statutes have very serious limits. Section 122 is literally about President Nixon's proclamation of an emergency. That's what it's about. And it's limited 15 percent, 150 days.

Justice Alito: And what about the authorization for the use of military force in 2001, which gave the president the power to use all appropriate force? Now that's pretty open-ended. You -- would you apply the same -- the same nondelegation argument there that you do here?

Neal K. Katyal: Of course not because there, you have shared powers between the President and Article I and Article II powers. That's what I was saying to the Chief Justice.

Justice Alito: Well, it gets into the question of whether it was delegated or not, what was the scope of the delegation.

Neal K. Katyal: Absolutely. But -- but there, you know, it's military. There's a whole unique history behind that. But, here, you're talking about something that is exclusively committed to Congress in Article I. 129 And there, yes, when you have delegations, I would say, Justice Alito, even when you have delegations in some military cases, in emergency statutes, they have all sorts of limits. So -- so 10 U.S.C. 2808 says that in a declaration of war or a national emergency, the president can "undertake military construction necessary to support emergency use of the armed forces" --

Justice Alito: All right. Thank -- thank you very much. Thank you.

Neal K. Katyal: -- but it has limits.

Chief Justice Roberts: Justice Sotomayor?

Justice Sotomayor: I'm fascinated that the two instances where presidents have used their war powers to impose a tariff, Lincoln and Nixon, that Congress found it necessary to ratify their actions and that the court in both those cases, the intermediate court of appeals in Nixon and our own Court, included that as part of their reasoning as justifying the use of war power in that situation. So I'm a little concerned why the fact 130 that this Act, a domestic Act on an emergency, that uses a word, a general word, like "regulate" should take on a war powers meaning when, in every other situation, whenever Congress intended domestic tax -- taxation, it said "tax" and "regulate."

Neal K. Katyal: Oh, Justice Sotomayor, I wish I had an hour to talk about this with you because this is just -- this argument by the government, advanced in their reply brief, is wrong, you know, every which way. So --

Justice Sotomayor: I'm saying that's another -- that's your sixth way of differentiating Yoshida, correct?

Neal K. Katyal: So --

Justice Sotomayor: That was a war powers case, TWEA --

Neal K. Katyal: So it's a war powers case. It's about conquered territory. It has nothing to do whatsoever with domestic tariffs. And absolutely, you're right in saying that the way that court even in those cases, even at the height of the government's power, war powers, they said Congress had to ratify it. And that's what at page 96 it was --

Justice Sotomayor: And that hasn't happened here.

Neal K. Katyal: And that has not happened here, not even close.

Justice Sotomayor: Well, it might not with Congress closed, but -- they can't even think about it right now. (Laughter.)

Justice Sotomayor: I -- I'm going to assume, and maybe he can shake his head yes or no, that Justice Kavanaugh will ask you to go to Algonquin, which you didn't answer, and he's shaking his head, so I'll let him do that part, okay? (Laughter.)

Neal K. Katyal: Excellent. Algonquin, Your Honor, is, you know, under --

Justice Sotomayor: No, I'll let him do it. (Laughter.)

Neal K. Katyal: Oh. Oh, sorry.

Justice Sotomayor: He can --

Chief Justice Roberts: We'll --

Justice Sotomayor: It was his question, but I want to make sure you get to 132 it.

Chief Justice Roberts: We'll hear from Justice Kagan first.

Justice Kagan: I have one specific question, one more general question. The specific question is, does it matter in the way we think about IEEPA what Congress thought it was doing in IEEPA, what -- what IEEPA, in fact, did, that at the time Congress thought it had available to it a legislative veto?

Neal K. Katyal: I do think it's relevant at least for delegation purposes because, you know, as this case comes to the Court, the one check that was in there, the so-called compromise, is a legislative veto which now no longer exists. And that's why I said to Justice Alito this statute now looks unlike any other statute with respect to tariffs.

Justice Kagan: I -- I guess I'm wondering whether, though, it cuts against you as well that Congress thought it had a legislative veto, so it didn't put in a variety of checks that it might have put in had it not thought it had a legislative veto, and, you know, that's just tough luck on Congress now.

Neal K. Katyal: Yeah, I don't think so. I mean, Justice Kagan, I think that's a very tough common-sense argument to make because every single delegation of tariffs -- tariff power statute from Congress to the president always has limits and including, you know, Section 122 passed just right before IEEPA, had in the case of the exact problem that this executive order is dealing with, large and serious trade deficits, it said the way to deal with it is 15 percent, 150 days. The idea that three years later they just said, oh, no, junk the rule book, I think is very difficult, and no Congress, I think, would rely just on the legislative veto for such -- a thing of such momentous importance. As you said to my colleague earlier, why would any president look to -- look to all of the different tariff statutes in Title 19 if you can just IEEPA them all, French Revolution them all.

Justice Kagan: General Sauer rests a lot on the President's inherent authority. And I want to make sure I understand your answer to the Chief Justice and to Justice Alito as to 134 where you think that authority exists in a way that actually would affect our interpretation of a statute and where you think it doesn't and why this falls into the second category given that in General Sauer's view, this is obviously what the Chief Justice called foreign-facing.

Neal K. Katyal: Yeah. So it may be foreign-facing, but there is still no Article II power whatsoever. There is no citation whatsoever in the government's brief to any notion that the President has Article II tariff authority. Now, look, I will say in wartime, conquered territory, maybe. But this is not a -- this is not a wartime or conquered territory statute. This is -- use of the statute, they are tariffing the entire world in peacetime and they are doing it and asserting a power that no president in our history has ever had. Even Justice Kavanaugh's example of Nixon, really far more limited, didn't blow past Congress's limits, as was said in Yoshida. This is a whole different animal. And maybe Congress has that power, as I agree with Justice Gorsuch. I don't think 135 that it does. But, boy, they've got to say so really clearly. And, here, there's nothing like that in the text of IEEPA.

Justice Kagan: Thank you.

Chief Justice Roberts: Justice Gorsuch?

Justice Gorsuch: Well, I don't know if I agree with what you say I say, but, at any rate -- (Laughter.)

Justice Gorsuch: -- back to the plain language. And -- and just stick with me for a moment. You know, with the -- the -- the Constitution says that Congress gets to regulate commerce, and everybody understood that that meant it included the power to tariff. Story, Madison, okay? So that -- that's sort of a -- a problem, right? "Regulate" is a capacious verb. And -- and then you've got the "otherwise" language as well, which we've sort of discussed. And just on the plain language, forget about the backdrop of major, do you need major questions to win? I kind of -- I kind of think 136 you might.

Neal K. Katyal: No, I don't think so. I mean, if we did, we would -- I think we'd win for reasons expressed. But I don't think so at all. So, Justice Gorsuch, our position is not that "regulate" can never mean tax or tariff.

Justice Gorsuch: Okay.

Neal K. Katyal: Our brief at page 15 gives you an example. A president may regulate cars coming into the city and then, if it adds by charging tolls or something like that, absolutely. In context, it does. Here, the context you're referring to, Story and so on, says nothing about this case. That is the constitutional context about Congress's use of power.

Justice Gorsuch: But it's part of how we understand language is used, and -- and it's relevant for that purpose. And -- and then, when you've got licenses, which are economically the same thing as -- would you agree they're basically economically the same thing as tariffs?

Neal K. Katyal: Sometimes they can be revenue-raising in the same way.

Justice Gorsuch: Okay. So you've got something that's economically identical to a tariff authorized by this statute.

Neal K. Katyal: So --

Justice Gorsuch: Where does that leave you --

Neal K. Katyal: So let me --

Justice Gorsuch: -- as a matter of plain language?

Neal K. Katyal: -- let me take the question in two parts. One is about the -- the word "regulate" and the other is about licensing. With respect to the word "regulate," when it's used in the constitutional sense, it's very different than the sense in IEEPA that my friend is asserting. When we're asserting IEEPA, we're talking about a statute that is granting the President massive powers. And so the relevant context that I think you look at in asking the question what did Congress mean in 1977, the best context, the most natural context is what does Congress say every time they grant the president such power.

Justice Gorsuch: I understand that. 138 I understand.

Neal K. Katyal: And then there's just one other point on this. Constitutions are read totally differently. Story and Madison are talking about the constitutional phrase, and as Chief Justice Marshall said in McCulloch, a constitution we're expounding the prolixity of a legal code is the opposite of the way you read the Constitution.

Justice Gorsuch: Yeah. I -- I -- I do follow that argument.

Neal K. Katyal: Okay.

Justice Gorsuch: Okay.

Neal K. Katyal: And --

Justice Gorsuch: What -- what about "otherwise" again? I just really want to make sure I understand, you say that there's -- there's a good reason why the Solicitor General didn't make that argument. I'll be curious to see what he has to say about that, but, you know, what's your best reasoning of why other -- the "otherwise" language doesn't capture this?

Neal K. Katyal: Because it's only a mechanism to implement the nine powers. And 139 that license sometimes can be revenue-raising and sometimes not.

Justice Gorsuch: Yeah.

Neal K. Katyal: And so --

Justice Gorsuch: So, if licenses can be revenue-raising and you can do this otherwise through revenue-raising things, why wouldn't that capture tariffs?

Neal K. Katyal: So because I think, again, our point to you is that -- that Congress -- that license -- that there's two kinds of -- two -- licenses come in two flavors. If the -- if an executive order is asserting a license fee to recoup the cost of government services or something like that, as I was saying to Justice Alito, that doesn't look different than the other verbs. That's not revenue-raising. It doesn't implicate the founders' concern. It doesn't implicate the concerns you wrote about in Consumers' Research about the fear of the government --

Justice Gorsuch: Well, you're not answering my question, though, Mr. Katyal. I'm talking about just the plain text here. And you're moving to a major questions or a 140 nondelegation. That's the move you're making, which I think, you know, fine, we can consider that. I'm just talking about on the text, okay? It says by means of licenses or otherwise. You've conceded that licenses are economically equivalent to tariffs. And the statute says by means of licenses or otherwise regulate.

Neal K. Katyal: Right. It's only a means, and we looked at the history --

Justice Gorsuch: Yeah, it's a means.

Neal K. Katyal: Yeah.

Justice Gorsuch: Why isn't tariffs a permissible means on -- on the statute?

Neal K. Katyal: Because, again, it has to be related to the nine powers that are given there.

Justice Gorsuch: Well, a license can be. We all have -- we have to acknowledge that. And you've said a license can raise revenue and you've said a license is equivalent to a tariff economically. So what about otherwise?

Neal K. Katyal: Justice Gorsuch, if the -- if the license where the otherwise is 141 raising revenue, then it is a difference in kind from the other verbs, and we looked at the history of licenses --

Justice Gorsuch: These aren't verbs either.

Neal K. Katyal: -- under TWEA and we were not able to find any involving licenses or license fees.

Justice Gorsuch: Okay. Last question, a little further afield. The parties discuss a little bit the analogy to the Foreign Commerce Clause. Of course, next to it is the Indian Commerce Clause. And delegations there were very broad initially and involved licenses once again. And -- and why -- why shouldn't that inform our understanding of the Foreign Commerce Clause?

Neal K. Katyal: I don't know that I have a position on that. It maybe is a little too afield for me to --

Justice Gorsuch: Well, if the President has broad authority in one part of the Commerce Clause, why wouldn't he in -- in the next-door neighbor?

Neal K. Katyal: Oh, I see, because, here, 142 Congress has specifically been given the exclusive power over tariffs. And so, if they were to part with it, I think, as this Court has said in J.W. Hampton, which is a tariffs case --

Justice Gorsuch: So you'd say -- you'd say the same principle would apply with tariffs with the Indian Commerce Clause? It is a tariff-specific argument?

Neal K. Katyal: I think it's -- at least the intelligible principles is what this Court has used for tariffs specifically, and we think that's the way you should look at this. And then, under intelligible principles, this is miles away from any delegation we have ever seen.

Justice Gorsuch: Thank you.

Chief Justice Roberts: Justice Kavanaugh?

Justice Kavanaugh: Just on the Nixon point, because you said, I think, that the current tariffs are unprecedented, I mean, that was a 10 percent worldwide tax on every import into the United States, I believe. I mean, we don't need -- I just think that's a fact. You 143 have arguments about that, you made good arguments about that, but I just wanted that point to be -- to be clear. On -- on Algonquin, to pick up on Justice Sotomayor's kind assist -- (Laughter.)

Justice Kavanaugh: -- your argument here is that the statute has to use the word "tariffs," I think, basically. And we went through Nixon and Yoshida, but then Algonquin, the statute for 232 does not use the word "tariffs." It uses "adjust imports." And President Ford had imposed, again, a pretty significant tariff on oil imports. It was challenged. It got to this Court. The attorneys standing where you are stood up and said “the license fee now before the Court involves the broadest exercise of the tariff power in the history of the American republic. In fact, we would have to go back to George the III's stamp tax to determine as broad an executive power as claimed in this case. The statute is the simple one. It does not mention the tariff on its face.” The argument there was the word 144 "tariff" was not mentioned, it used "adjust imports." The Court, obviously 9-0, rejects that argument, in part because, as others have -- have pointed out, the Court does a lot of questioning, well, what's the difference between a quota and a tariff and what's the difference between an embargo and a tariff? And so, when -- when the Court writes the opinion, it says, "We find no support in the language of the statute," the language, "for respondents' contention that the authorization of the President to 'adjust' imports should be read to encompass only quantitative methods -- i.e., quotas -- as opposed to monetary methods -- i.e., license fees -- if affecting such adjustments." So, on your basic point that you need the word "tariff," Algonquin says you don't need the word "tariff." And that was President Ford's oil imports. It's 9-0. The oral argument goes through this. Your answer?

Neal K. Katyal: There's a lot there, Justice Kavanaugh, so please bear with me. First, I'd like to just clear --

Justice Kavanaugh: I will.

Neal K. Katyal: -- clarify what our position is generally and then deal with Algonquin. Our position is not that you have to use the word "tariff" or any other magic word. It's true that Congress has used a specialized vocabulary since the founding, since 1790, using words like "tariffs" or "duties," but as I was saying earlier to Justice Gorsuch, you could even use the word "regulate," as page 15 of our brief says, or you could even imagine something that says, "the President may regulate importation by requiring importers to pay 10 percent of the value of goods to the Treasury." So I don't think you have to use any particular word. The question is, in context, is it -- does it --

Justice Kavanaugh: But Algonquin didn't have anything like that, but keep going.

Neal K. Katyal: So Algonquin does have, I think, a context that's miles apart from what the -- what the government is seeking here to do with IEEPA. So, first of all, it is a common-sense statute. I understand there's 146 some rhetoric by -- a common-sense reading of the statute. I know there's some rhetoric by the lawyer who stood here before, which is, of course, forgivable, but it was a statute about one product, 232, article by article. It's one product. This is a billion products or even more that the government is seeking. Algonquin was expressly a trade statute. It was the 1962 Trade Act. It's everything this case isn't. Algonquin had a specific reference to the word "duties" in a separate provision. Algonquin had a legislative history that was clear as day that the President was -- the President was given this power. And I understand this Court today doesn't look to the legislative history, but the way Algonquin got to where it was was by saying the legislative history, the chief sponsor of the act --

Justice Kavanaugh: I think I'll disagree with you on that. It does the plain text and then says, is there anything in the legislative history to defeat the plain text? So I disagree pretty strongly with you on that, but it doesn't defeat your point. Keep going.

Neal K. Katyal: Okay. So I'd also say, and maybe the most important point, 232 -- our point -- our argument is not just that you have to specifically authorize a tariff with some sort of word but also that one way of understanding whether Congress is delegating its awesome tariff power, its awesome taxing power is to ask are there limits to what Congress has put in. And in Algonquin, in Section 232, the Court points to and goes painstakingly through all the limits. The first words of the decision are all about how constrained the statute is. It's a reticulated scheme. The cabinet secretaries have to make certain findings. There are specific statutory factors Congress says the President must look at before acting. There are public hearings. There are limited remedies "to the extent necessary." All of that is in the statute. All of that is in the Algonquin opinion. None of it is in IEEPA. That's the problem. And that's why just like Dames & Moore, the Algonquin case said this is a very limited decision limited just to the facts.

Justice Kavanaugh: Thank you.

Chief Justice Roberts: Justice Barrett?

Justice Barrett: So this license thing is important to me. And do you agree that pursuant to IEEPA, the President could impose -- could regulate commerce by imposing a license fee?

Neal K. Katyal: Sorry. Could you say that again?

Justice Barrett: Could the President regulate commerce under IEEPA by using a licensing fee?

Neal K. Katyal: Not a fee. So I should have said this earlier, but license is different from a licensing fee. IEEPA and TWEA authorize licenses, not license fees. And no president has ever charged, to my knowledge, fees under those two statutes for the licenses. So fee is impermissible. License is okay.

Justice Barrett: Fee is permissible if they cover the cost of the scheme?

Neal K. Katyal: Might be. Might be, I mean, but -- but, once they start revenue-raising, you implicate the most serious 149 concerns --

Justice Barrett: But I thought you conceded to Justice Gorsuch there was no difference between a tariff and a licensing fee functionally.

Neal K. Katyal: If -- if the licensing fee is just to -- I didn't concede that.

Justice Barrett: Okay.

Neal K. Katyal: So, if the licensing fee is just to recoup the cost to government services, I think that may be okay. I don't think you need to get into it. Here, the government is asserting a power which they say in their briefs to you raises $4 trillion.

Justice Barrett: So you understand the statute to permit licensing in the sense of permission, like we will not allow you to trade with us, we will not allow your goods to be imported unless we license it?

Neal K. Katyal: Absolutely. And, Justice Barrett, I think, like, just the natural reading, if you're to look at the word "licenses" and think, wow, Congress smuggled this incredible power to do all of these different things that the government is doing 150 here, 39 percent taxes on some countries and others through the word "license," that's a tough one.

Justice Barrett: Can you license exportation?

Neal K. Katyal: I don't think so for the reason that, you know, it would be --

Justice Barrett: Well, right now -- I actually looked into this.

Neal K. Katyal: Well, it depends.

Justice Barrett: I mean, I think you -- maybe not licensing fees.

Neal K. Katyal: Fees, exactly.

Justice Barrett: But could you license exportation like saying we're not going to allow certain products that have national security implications to be exported?

Neal K. Katyal: Yes.

Justice Barrett: So licensing could be used in that sense --

Neal K. Katyal: Correct.

Justice Barrett: -- not as a revenue-raising measure?

Neal K. Katyal: Yes.

Justice Barrett: Okay. So you went 151 back and forth with Justice Gorsuch about the implications of the President's authority over foreign affairs and whether the major questions doctrine applies. You say that in IEEPA, the President war -- President's war powers are not implicated and that was part of the reason why you say that we should think of this differently than some of the historical examples where the commander-in-chief power, war powers, were implicated. But the same language appears in the Trading With the Enemies Act in which war powers would be implicated. So do you think that language should be -- and, of course, that is what President Nixon relied on. So do you think that the language would be interpreted differently in that context even though the commander-in-chief power and the war power would be implicated?

Neal K. Katyal: A hundred percent I think it would be interpreted differently. Justice Jackson in the --

Justice Barrett: The same "regulate commerce" language?

Neal K. Katyal: Yes, because, once you're 152 talking about -- once you're carrying over wartime precedents to peacetime for reasons --

Justice Barrett: Okay. I don't understand that then because everybody agrees the language came -- in IEEPA, came from the Trading With the Enemy Act. So you're saying it has one meaning in the Trading With the Enemy Act and a different meaning in IEEPA, that same "regulate commerce"?

Neal K. Katyal: No. I think that the conquered territory language and all of that may go to the President's Article II powers, his inherent powers in conquered territory, but I don't think it gets the government where they need to go. The CAC brief and the brief by Professor Paul Steven goes through and explains why, in 1933, when Congress decided to bring these concepts into peacetime, it severed the wartime roots. And there's a extensive legislative history --

Justice Barrett: Okay. I understand that. But I thought that was about -- maybe I'm -- maybe I'm just not tracking. I mean, I think there's been some discussion of whether 153 the President would have inherent Article II authority in wartime to impose tariffs to this end. Is that what you're talking about? Are you actually talking about a statute that said regulate importation in wartime?

Neal K. Katyal: Right.

Justice Barrett: And you think it could have the tariff power conferred through that language in a war-making statute but not in IEEPA?

Neal K. Katyal: No, I don't think it confers it in either place. I think the President in the -- it's located, the President's power in conquered territory is not in the Trading With Enemies Act or anything like that but rather in --

Justice Barrett: Okay. So it's inherent constitutional power --

Neal K. Katyal: Exactly.

Justice Barrett: -- coming from the law of war. Okay. And then, if you win, tell me how the reimbursement process would work. Would it be a complete mess? I mean, you're saying before the government promised reimbursement. And -- 154 and now you're saying, you know, well, that's rich. But how would this work? It seems to me like it could be a mess.

Neal K. Katyal: So the first thing I'd say is that just underscores just how major a question this is, the very fact that you are dealing with this with quotas, there's no refund process to the tunes of billions of dollars or embargoes, but there is here. But, for our case, the way it would work is, in this case, the government's stipulated for the five plaintiffs that they would get their refunds. So, for us, that's how it would work. Your question, I take it, is about everyone else where you don't have a class action or anything like that. With respect to everyone else, there's a whole specialized body of trade law. And 19 U.S.C. 1514 outlines all these administrative procedures. It's a very complicated thing. There's got to be an administrative protest. There was a Harbor Management case earlier that this Court was involved with in United States Shoe in which, you know, the refund process 155 took a long time. There were any number of claims and equitable relief and other things.

Justice Barrett: So a mess?

Neal K. Katyal: So it's difficult, absolutely.

Justice Barrett: Okay.

Neal K. Katyal: We don't -- we don't deny that it's difficult, but I think what this Court has said in -- in -- in the McKesson case in 1990 is a serious economic dislocation isn't a reason to do something. Northern Pipeline, you guys stayed your decision for a while in order to let the congressional process unfold. There may be a congressional process here as well. You know, your -- you know, it may be able to also be that this Court could limit its decision to prospective relief under the John Q. Hammons case. So there's lots of possibilities.

Chief Justice Roberts: Justice Jackson?

Justice Jackson: So I think I read Algonquin differently than Justice Kavanaugh. When I look at its analysis, it absolutely does 156 a textual review, but then it says, "Turning from Section 232's language to its legislative history, again, there is much to suggest that the President's authority extends to the imposition of monetary exactions." And I appreciate that perhaps that factor is no longer in vogue, but did you look into the legislative history here to determine whether there is anything that supports the conclusion that Congress actually intended for this IEEPA statute to allow or authorize the President to impose these tariffs?

Neal K. Katyal: I did, and, if I blinked, I would miss it because it was virtually nothing. And, in fact, both page -- page 2 of both the House and Senate report outline all of the powers that are given under IEEPA, and -- and -- and none -- and none of them have tariff. There's one brief mention of "tariff" in the legislative history, but nothing else. And, by the way, IEEPA passed by voice vote. It was, you know, there was -- not controversial. We don't deny IEEPA is a big, major statute, but the question is, did it authorize tariffs? One of the most contested 157 things since our founding, we've had battle after battle --

Justice Jackson: And you say there's nothing in the legislative history to suggest it?

Neal K. Katyal: Zilch.

Justice Jackson: Now, to the extent that Congress did authorize the President to do something, that those verbs are there, that the Congress was giving the President some authority, do you see a theme connecting those verbs? What was Congress trying to do? And let me just say that I see in the Senate report, which I mentioned earlier, that Congress says that it was trying to give the President the authority to "control or freeze property transactions where a foreign interest is involved." And that seems to dovetail with the verbs that are being used in the statute. But -- but what's your view of what Congress was trying to do with this legislation?

Neal K. Katyal: That's exactly right. They're responding to all sorts of -- of foreign policy emergencies and foreign threats, and they're giving the President economic 158 sanctions power.

Justice Jackson: So what does the word "regulate importation" do in -- under that framework? If we understand that Congress was trying to give this kind of embargo authority in the time of an emergency, when it says "regulate importation," what -- what was it envisioning?

Neal K. Katyal: It was envisioning all the things that the presidents since 1977, going back to Justice Kavanaugh's question, have used it for. So they've used it for quotas, like limitations on the number of goods. They've used it for screening and reporting requirements, like Executive Order 12284 about reporting property of the shah. And they've used it for standards, like domestic safety standards, environmental standards, labor requirements. They've used it for embargoes. So all of those are things that I think Congress had in mind in IEEPA. And I think the proof of this, that it's not this massive statute that allows the government to do anything, is Dames & Moore itself, because 159 this Court rejected the idea that "regulate" includes the claims extinguishment that was at issue in that case. It's a much more limited statute. And, Justice Jackson, there was a predecessor Justice Jackson who said -- who said, you know, that, "For all its defects, delays, and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law and that the law be made by parliamentary deliberations. Such institutions may be destined to pass away, but it is the duty of [this] Court to be last, not first, to give [it] up." And I take it my friend's argument on the other side is in deep tension with Youngstown and that canonical principle.

Justice Jackson: Thank you.

Chief Justice Roberts: Thank you, counsel. Mr. Gutman. ORAL ARGUMENT OF BENJAMIN GUTMAN ON BEHALF OF THE STATE PARTIES

Benjamin Gutman: Mr. Chief Justice, and 160 may it please the Court: I'd like to begin by picking up with the exchanges with Justice Barrett and Justice Gorsuch about licenses and license fees because I think we ended on the right note, but I just wanted to make sure that our -- that at least my client's position is clear on this. Licenses are different from license fees, and I am not aware of any history in the five decades that IEEPA has been in force of any fees charged for the licenses under this statute. This is a statute that -- licenses can be used, for example, the President might ban certain transactions with a foreign country but then grant licenses to do them for humanitarian reasons, but, as far as I'm aware, there's never been a fee charged for that. And I do welcome the Court's questions, but I think that's -- I just want to make --

Justice Gorsuch: Well --

Benjamin Gutman: -- absolutely clear --

Justice Gorsuch: -- I think the question is what does "or otherwise" do?

Benjamin Gutman: Well, "or otherwise" could be things like instructions or licenses, but, again, it's -- it's fundamentally -- having something that is a revenue-raising measure or even that is just an exaction of some sort is a fun -- is fundamentally categorically different from what we understand instructions and licenses to be involved, just like we think "regulate" doesn't carry the -- the financial connotation given the other verbs there. If -- if I could turn to some of the 19th century history that we were discussing as well because I think there may be a little bit more to add there. The -- the 19th century cases about the President's inherent Article II authority to -- with respect to -- in a wartime with respect to importation is -- is not the power to impose tariffs on imports coming into the -- the United States. That is not what any of those cases were about. They were about the President's power, you know, in a wartime as an occupying military force to impose tariffs in occupied 162 territory, in Mexico, in the Philippines, in California. The Civil War case might be the closest case, but even there, what we were talking about were essentially -- there were licensing fees, but they were export fees. They were fees that were being imposed on the exportation of cotton from the occupied South into the North. And so I don't think any of that provides authority for this general notion that there is a background principle that the President, even in wartime, has an Article II authority to impose tariffs, certainly without the consent of Congress.

Justice Barrett: Counsel, you agree, I assume, given all the verbs in this list, that the President could do something like just shut down all trade between us and, say, you know, China, right?

Benjamin Gutman: Yes. I mean, there are other limitations in --

Justice Barrett: Okay. So --

Benjamin Gutman: -- the statute. Yes.

Justice Barrett: -- doesn't it 163 seem -- and I think this is one of the -- the points that Algonquin makes, and I think it's a point that Justice Kavanaugh was making -- doesn't it seem then -- I mean, I don't want to use the phrase "lesser power" or "lesser included measure," but doesn't it seem like it would make sense then that Congress would want the President to use something that was less, you know, weaker medicine than completely shutting down trade as leverage to try to get a foreign nation to do something?

Benjamin Gutman: And the President can in the form of, for example, quotas. But what makes an embargo or quotas fundamentally different from tariffs, as my -- as my friend has already explained, is the revenue-raising aspect of that. That makes it a far more significant power. It creates additional danger of -- of overuse. And I think the other point, as Justice Jackson was pointing out, is that it -- it cedes control over whether the transaction occurs from the government to the individuals engaging in this transaction. And that is not what IEEPA is 164 intending --

Justice Barrett: Well, what makes something revenue-raising? I mean, fees raise money --

Benjamin Gutman: Yes.

Justice Barrett: -- and unless they're going to be kind of one-to-one this is exactly what it costs, I mean, it -- it might raise some surplus. It might raise some extra. So is it the purpose, if the purpose of the fee or the tariff is to raise money --

Benjamin Gutman: I don't think --

Justice Barrett: -- is it the purpose that makes it revenue-raising, or is it just the fact of surplus created that goes to the Treasury? Like, how do we decide this?

Benjamin Gutman: Yes, I think it's the effect. And, to be clear, I -- I think there's -- there's -- there would be a serious difficulty with interpreting any of these words even to allow revenue-neutral exactions here because none of them involve -- none of them -- and, again, as far as I'm aware, IEEPA has never been used in that way. But I don't think there's --

Justice Barrett: Not even a processing fee?

Benjamin Gutman: I -- I'm not aware of any use of that sort of -- under IEEPA, but -- but even if -- even if that is permissible, it -- I think that's permissible precisely because it is -- it doesn't have the effect of raising revenue.

Justice Jackson: Can you --

Justice Kavanaugh: Mr. Katyal referred to common sense several times. And I want to pick up on Justice Barrett's question because your interpretation of the statute, as she pointed out, would allow the President to shut down all trade with every other country in the world or to impose some significant quota on imports from every other country in the world but would not allow a 1 percent tariff. And that leaves, in the government's words in its brief, an odd donut hole in the statute. Why would a rational Congress say: Yeah, we're going to give the President the power to shut down trade. I mean, think about the effects. But you're admitting that power's in there.

Benjamin Gutman: Yeah.

Justice Kavanaugh: But -- but can't do a 1 percent tariff. That doesn't seem -- but I want to get your answer -- to have a lot of common sense behind it.

Benjamin Gutman: I think it absolutely does because it's a fundamentally different power. It's -- it's not a donut hole; it's -- it's a different kind of pastry. (Laughter.)

Justice Kavanaugh: And on that -- on that power -- that's a good one. On that power, though, and you've said this many times and Mr. Katyal too, and I -- and, look, I get this, obviously. But the Court has repeatedly said a tariff on foreign imports is an exercise of the commerce power, not of the taxation power. And I'm repeating some -- but John Marshall said that and Joseph Story and Chief Justice Hughes in the 1933 case, and we've said that quite a bit of time, which seems to at least undermine a bit your point that it's an entirely different power because, if it is foreign commerce power, it's the same power that Justice Barrett was talking 167 about of just embargoing trade with the entire world, which you admit is in this statute.

Benjamin Gutman: Well, there are a couple of points in there, and -- and I'll try to get to all of them, but, I mean, I think all of us agree that context is what matters here --

Justice Kavanaugh: Mm-hmm.

Benjamin Gutman: -- and that you certainly could use the word "regulate" to -- to talk about a tariffing power, like you could use it to talk about a taxing power. I mean, we impose taxes for regulatory purposes as well. But the -- the -- the federal government hasn't identified a single other federal statute that uses the term "regulate" to authorize tariffs or taxes. That is just a different kind of power.

Justice Jackson: And I thought your point in response to Justice Kavanaugh, it's a different kind of power because the power that's being authorized by this statute is the power to control or freeze trade.

Benjamin Gutman: That's exact --

Justice Jackson: That's what Congress was getting at. And so, if that's true, then 168 we have to read "regulate" in that context.

Benjamin Gutman: That's exactly right. And I think the reason, getting back to common sense, as to why a legislature might authorize that is that you might not fear abuse of that power in the same way that you would be concerned about abuse of the power to impose unlimited taxes with no -- with -- with sort of no controlling principle.

Justice Kavanaugh: Well, I'll just press --

Justice Kagan: Well, why is that?

Justice Kavanaugh: Yeah.

Justice Kagan: Because, I mean, there is a sort of commonsensical intuition that one is, in -- in Justice Kavanaugh's example, that one is greater and one is lesser. So why -- why is that not right?

Benjamin Gutman: Because, to be blunt about it, there's nothing -- one of them there's something in it for the government and one of them there isn't. Actions that bring in revenue from -- from the pockets of taxpayers to the Treasury pose a different set of concerns. Our framers were very concerned 169 about that.

Justice Kagan: A different set of concerns how? Why?

Benjamin Gutman: Because they bring in revenue and because that -- that creates a --

Justice Kagan: Well, that seems a little tautological. Like --

Benjamin Gutman: Well --

Justice Kagan: -- why is it that the revenue-raisers are in a different category?

Benjamin Gutman: Because, if -- look, if there -- if there is some sort of international emergency and the -- the -- the appropriate way to deal with it is to make sure that no more than a thousand of this product comes into this country at -- at a particular time, this statute gives the President the power to ensure that exactly no more than 1,000 come in at this time. Setting a -- setting a tariff doesn't ensure that only 1,000 will come into this country. It -- it cedes control over whether the transaction occurs. And what it does is it -- is it then, you know, adds revenue to the Treasury. And that is -- that is, again, 170 something that our framers thought was extremely important and -- and a core Article I --

Justice Barrett: Except -- but Algonquin -- I mean, this kind of goes back to Justice Kavanaugh's point. Algonquin rejects the idea that it was impermissible to use the fees, and we can call them, you know, license fees that functioned as tariffs or duties in that case, whatever. But Algonquin said that Congress could use the exaction of money to control quantity. And I hear what you're saying is, like, well, you can control quantity by numbers by imposing hard limits but not by money, but that's not what Algonquin said. So I guess --

Benjamin Gutman: Well, no --

Justice Barrett: -- why? Why?

Benjamin Gutman: Well, and I -- and I don't mean to suggest that you can't use exactions to control quantity. What -- I think Algonquin just shows the importance of context. It might be perfectly natural to read a phrase like "adjust imports" in the context of a statute that talks about tariffs, in the 171 context of the Trade -- of the Trade Expansion Act that has all sorts of provisions about tariffs and about the President adjusting tariff rates. It might be perfectly natural in that context to read a phrase like "adjust the imports" to be referring to changing tariff rates. It's just as unnatural to read a phrase like "regulate importation" to discuss that when the statute has nothing to do with tariffs and doesn't otherwise mention tariffs at all.

Justice Jackson: And Algonquin --

Justice Barrett: Do you think imposing tariffs is a big -- I mean, sorry, do you think that just blocking all trade is a bigger deal than imposing a 1 percent tariff across the board?

Benjamin Gutman: I think it would be a huge deal. It is just a different kind of deal.

Justice Jackson: Algonquin --

Justice Kavanaugh: And about the --

Justice Jackson: -- was not a constitutional case, right?

Benjamin Gutman: Correct.

Justice Jackson: It was a statutory interpretation case.

Benjamin Gutman: Correct.

Justice Jackson: And so the question there was simply was Congress actually trying to give or did Congress in that statute give the President the authority to impose these kinds of exactions. And the Court looked at the text and it looked at the legislative history in which there was a number of clues that Congress had actually intended to do that, right?

Benjamin Gutman: Yes, yes. And it looked not just at the text of those specific words, the -- but -- but also the context of what else was in the statute and the fact that some of the factors that the President was supposed to be considering.

Justice Kavanaugh: But -- keep going. Sorry.

Justice Jackson: And it would make perfect sense, I think, in a time of emergency for many of the reasons that General Sauer pointed out that Congress would want the 173 President to have the kind of authority that is imposed when you are embargoing things, when you are stopping the trade, when you are saying, you know, for emergency reasons we're not letting any of this product come in. I mean, sure, that's a big deal, but the nature of it makes sense in terms of an emergency. I think what you're saying is that the idea that the government would use its authority to be raising revenues in this situation is a different kind of power.

Benjamin Gutman: Exactly. This is about -- this is a statute about giving the President control over assets, over transactions, over access to banking.

Justice Jackson: And tariffs don't do that.

Benjamin Gutman: That's exactly right.

Justice Jackson: You said something about tariffs not -- tariffs, in fact, cede control --

Benjamin Gutman: Exactly right.

Justice Jackson: -- over those sorts of things. So they sort of undermine the goals and the purposes of this kind of statute. Is 174 that right?

Benjamin Gutman: Yes, that's exactly right.

Justice Alito: From --

Justice Kavanaugh: Can I ask --

Justice Alito: -- from what you've said --

Justice Kavanaugh: Go ahead.

Justice Alito: From what you've said, it seems -- and you said this -- that the reason for drawing a distinction between tariffs and an embargo is the suspicion that tariffs will be used to raise money and, therefore, to circumvent Congress's power to control taxes. So it's a question of the risk that's involved. Am I right?

Benjamin Gutman: Yes.

Justice Alito: That's what it boils down to?

Benjamin Gutman: Yes. Well, and it's a question of understanding what Congress would have thought it -- what -- what powers Congress would have thought it was conferring. Would Congress have understood the phrase "regulate" --

Justice Alito: Well, the question is why would Congress say you can impose a quota, you can impose a ban, but you can't impose a tariff? And your answer, I gather, is because, when a tariff is imposed, we're -- we're suspect about what's going on. We're suspicious about what's going on. We think that what the government is trying -- what the executive is trying to do is to -- is to raise revenue, and that's our -- that's our business, right? That's what it has to be.

Benjamin Gutman: Yes, and every -- we -- we know that every other time that Congress has authorized the President --

Justice Alito: No. Well, that's a -- you're getting into a different argument. Then would you say the same thing if the measure is really about an emergency?

Benjamin Gutman: Yes.

Justice Alito: An undisputed emergency and a really dire emergency.

Benjamin Gutman: Yes. I --

Justice Alito: There, would you have the same suspicion?

Benjamin Gutman: Yeah, it -- the -- the -- 176 yes, absolutely. And, again, I'll -- I'll refer back to Justice Jackson's concurrence in Youngstown that emergency powers tend to breed emergencies. Look, Biden versus Nebraska, I think, is -- you know, says very clearly --

Justice Alito: Well, I -- I really don't think you're answering the question. The question is, would you have the same suspicion when it is perfectly apparent from context that what the President is trying to do is to achieve a goal other than the raising of money?

Benjamin Gutman: I think what I'm trying to say is that you -- you have to read the statute the way that Congress would have understood it when it was enacted, not how it is used in any particular case. It may be used for very good reasons in a particular case, but the question is, would Congress have understood itself to be ceding this power with no limits, unlike every other tariffing statute, with no limits --

Justice Alito: All right. I -- I know -- I know that point. Let me ask you an unrelated question. Mr. Katyal listed some of the things that presidents have done under 177 IEEPA, such as screening -- screening imports. Do any of the other verbs in IEEPA talk about screen -- could -- could screening of imports be done under any of the other verbs in IEEPA?

Benjamin Gutman: I think maybe, but it would have been --

Justice Alito: Which one?

Benjamin Gutman: Prevent. And -- and so I think the question would be could you --

Justice Alito: Screening is preventing?

Benjamin Gutman: Well, it -- I think it depends what you're screening for. But, if you were -- if --

Justice Alito: Okay. How about imposing domestic safe -- requirements that promote -- that are needed to safeguard domestic safety? Any -- any reg -- any other provision besides "regulate," any other verb besides "regulate" that would --

Benjamin Gutman: Well, again, I think, if we're talking about potentially blocking some property from coming into this country because of safety concern, it might be that prevent 178 would have gotten you there. What I think "regulate" does is it -- is it clarifies and amplifies that -- that you don't just -- you know, it -- it can be nuanced in that way. It can say we will let this come -- this come in if it has certain safety requirements, if certain features have been disabled, something like that. And I think -- so I think "regulate" harmonizes with prevent, investigate during the pendency, block during the pendency of an investigation, those sorts of verbs.

Justice Kavanaugh: On the context point, the context of this statute, what Congress would have understood, it's an emergency statute, and, presumably, Congress wants to give the President tools to respond to the emergency in an appropriate way. And it seems odd to imagine a meeting in the Oval Office where the President's told, well, we have a problem with -- I won't name a country -- but Country X and you can stop all trade with that country. I mean, I'm not sure that's a, you know, wise policy to give that much, but it's 179 there, right? You agree it's in this statute.

Benjamin Gutman: Yeah.

Justice Kavanaugh: But -- and the President says, well, that's too extreme. I want to calibrate my response to deal with this and maybe a -- a -- you know, a tariff of some kind. Like, well, you can't do that. So you're forcing the President to respond to an emergency, and, you know, Justice Alito has raised the point about, you know, a real emergency. And you're taking away the President's suite of tools when the one is much more extreme that is authorized. That just seems a bit unusual. You know, think about India right now, the tariff on India, right? That's designed to help settle the Russia-Ukraine war as I understand it. Don't pretend to be an expert. But, if that's gone, you know, that's a tool that's designed, talk about foreign-facing, the most serious crisis in the world, and that's -- that's out -- out the window. So I just think it's just contextually emergency, it's just a bit unusual to read it that way, but I -- I -- I take your response, 180 taxation's different and you've got to stick with that line.

Benjamin Gutman: I -- no, and I don't think it's just that because -- I -- I mean, I do think it's that, but it -- but it's also that there are a -- a range of tools that are more calibrated that the President can do. It doesn't have to be a complete embargo. It could be limits on particular kinds of products. It could be quantity, quality limits.

Justice Kavanaugh: I get it. But, in the history of trade -- trade efforts to respond and push back, you're taking one away. I --

Benjamin Gutman: Well, and the President -- and there are many other statutes that might apply depending on --

Justice Kavanaugh: I get that.

Benjamin Gutman: -- the exact circumstances --

Justice Kavanaugh: Fair -- that's --

Benjamin Gutman: -- 201, 301, 232.

Justice Sotomayor: Counsel --

Justice Kavanaugh: -- that's a good 181 point.

Justice Sotomayor: -- I think what we're forgetting here is a very fundamental point, which is the Constitution is structured so that if I'm going to be asked to pay for something as a citizen, that it's through a bill that is generated from Congress and the President has the power to veto it or not. But I'm not going to be taxed unless both houses, the executive and the legislature, have made that choice, correct?

Benjamin Gutman: That's exactly right. So --

Justice Sotomayor: And so there is something -- it's not just the taxing power qua taxing power. The question is, do we permit the President to use the taxing power to effect his personal choices of what is good policy for me to pay for?

Benjamin Gutman: That's exactly right. The question is who decides.

Justice Sotomayor: It hasn't -- who decides and under what circumstances. Now, with respect to this, I mean, I'm not even going to the pretext argument, okay? But the 182 President threatened to impose a 10 percent tax on Canada for an ad it ran on tariffs during the World Series. He imposed a 40 percent tax on Brazil because its Supreme Court permitted the prosecution of one of its former presidents for criminal activity. The point is those may be good policies, but does a statute that gives, without limit, the power to a president to impose this kind of tax, does it require more than the word "regulate"?

Benjamin Gutman: Exactly.

Justice Sotomayor: That's your point.

Benjamin Gutman: Yes.

Chief Justice Roberts: Thank you, counsel. Did Mr. Katyal say anything this morning with which you disagree?

Benjamin Gutman: No. I think we cleared up any maybe potential disagreement about licensing fees, but I think we all agree on that.

Chief Justice Roberts: Okay. Justice Thomas?

Justice Thomas: No.

Chief Justice Roberts: Justice? Anything further? Justice Kagan?

Justice Gorsuch: Briefly.

Chief Justice Roberts: Justice Gorsuch?

Justice Gorsuch: Thank you, Chief. So I just want to follow up on Justice Sotomayor's question at the end of a long morning -- afternoon. It does seem to me, tell me if I'm wrong, that a really key part of the context here, if not the dispositive one for you, is the constitutional assignment of the taxing power to Congress. The power to reach into the pockets of the American people is just different and it's been different since the founding and the navigation acts that were part of the spark of the American Revolution, where Parliament asserted the power to tax to regulate commerce. Some of those were revenue-raising. Some of them didn't raise a lot of revenue. We had a lot of pirates in America at the time. And -- and Americans thought even 184 Parliament couldn't do that, that that had to be done locally through our elected representatives. Isn't that really the major questions, nondelegation now, whatever you want to describe it, isn't that what's really animating your argument today?

Benjamin Gutman: I think it's a huge piece of what's animating our argument. Thank you.

Chief Justice Roberts: Justice Kavanaugh? Justice Barrett? Justice Jackson?

Justice Jackson: Can I just invite you briefly to address your kind of second-tier arguments? Assuming that the President can impose these sorts of taxes -- or tariffs, why do you think, for example, that the trafficking tariff here does not deal with the drug-trafficking emergency for the purpose of this analysis?

Benjamin Gutman: So it doesn't deal with it because it's not a sanction imposed against traffickers. It is a -- say it is -- if you think of it as a sanction, it is a sanction 185 imposed against people importing lawful goods in the hope --

Justice Jackson: But doesn't that indirect -- that happens all the time, right? I mean, all the other authorities indirectly provide leverage on countries in this way.

Benjamin Gutman: I don't think so. I think that they are -- that the history of -- of IEEPA and even of TWEA is imposing sanctions directly on the wrongdoers. These are statutes about providing sanction authority against -- against international actors whose behavior we want to change, and that's not what tariffs do.

Justice Jackson: All right. Thank you.

Chief Justice Roberts: Thank you, counsel. Rebuttal, General Sauer? REBUTTAL ARGUMENT OF GEN. D. JOHN SAUER ON BEHALF OF THE FEDERAL PARTIES

D. John Sauer: Thank you, Mr. Chief Justice. Just three points. One an interpretive point. The statutory language here is "regulate importation" and, again, by 186 means of instruments, licenses, or otherwise. Their argument is that that phrase carries with it a whole host of unemunerated forms of regulation, including quotas, licenses, licenses apparently that come with fees as long as they're not -- as long as they're sort of profit-neutral fees, environmental restrictions, qualitative restrictions, reports and so forth. It's just that the one form of regulation that they would not include is tariff regulation, which, of course, is the quintessential most historically tested method of regulating imports. And so that -- that -- that -- that additional phrase about, you know, by means of instruments, licenses, or otherwise really sort of reinforces the plain meaning, the ordinary natural meaning of "regulated importation" here. So, when it comes just to the plain text of the statute, their argument is a donut-type argument, and it's not an argument that does justice to the statute's plain text. On the nondelegation point, Justice Gorsuch, you alluded to the founding or 187 delegations of the Indian commerce power, and I just remind the Court that in 1790, in July of 1790, Congress passed a statute that essentially delegated to President Washington essentially the entire scope of the Indian commerce power. He said you can do commerce with Indians if you have a license that you had to pay a fee for, but -- and that -- that will be subject to such rules and regulations as the President makes with no further guidance. So, when it comes to this foreign-facing, there, it's obviously analogous because the Indian tribes are not foreign sovereigns, but this foreign-facing situation, we have a very sort of deep and profound historical pedigree through broad delegations of the regulation of commerce, right, the foreign commerce power in that case, the Indian commerce power. And that ties, I think, to what I take to be the main theme of the arguments on the other side. And I think that Mr. Katyal started by saying tariffs are taxes. And I want to complete the answer I think I was 188 giving to the Chief Justice when I got interrupted, is if you look at these, these tariffs, these policies, it is clear that these policies are most effective if nobody ever pays the tariff. If it never raises a dime of revenue, these are the most effective use of these -- of this particular policy. And I said there's two buckets there. One is, first of all, when it comes to the trade deficit emergency, if no one ever pays the tariff, but, instead, they direct their consumption domestically and spur the creation or the rebuilding of our -- of our hollowed-out manufacturing base, that directly addresses the crisis. It's more effective if no one ever pays the tariff. That's the point of it, really. You know, that's a fundamental point of it. And that's one piece of these. And then, as to both of them, as to both of the declared emergencies, the tariffs are an incentive, a pressure point, leverage, bargaining chip, as the Court said in Dames & Moore, to get countries to change their behavior to address the foreign-arising emergencies. So, if you look, for example, to 189 take a historical example, last week's trade deal with China, it unlocked access to rare earth minerals, which, of course, have a critical national security aspect to them, and it got China for the very first time to change its policy with respect to fentanyl precursors, which is a crucial piece of that. That -- those tariffs, if no one ever collects them, but the threat of imposing those tariffs gets China and our other trading partners across the world to change their behaviors in a way that addresses this, then that's the most effective use of the policy. So they're clearly regulatory tariffs, not taxes. They are not -- they're not an exercise of the power to tax. They are the exercise of the power to regulate foreign commerce. And that's why the statute says "regulate." It doesn't say "tax." It says "regulate." And -- and for that reason, we are squarely within the tradition that I was talking about before of very broad, historically very broad, delegations of the power to regulate foreign commerce to the President because he has inherent Article II 190 authority in the area of -- of -- of -- of foreign affairs, although not that. It has to be delegated to him. Otherwise, the delegate -- delegation would be superfluous. And for all those reasons, we ask the Court to reverse both the decisions below.

Chief Justice Roberts: Thank you, counsel. The case is submitted. (Whereupon, at 12:44 p.m., the case was submitted.)