Episode 1
A Constitutional Clash: Trump's Tariffs and the Separation of Powers
Overview
This episode examines the Supreme Court's September 9, 2025 Order that expedited review of two consolidated cases challenging President Trump's authority to impose sweeping tariffs under the International Emergency Economic Powers Act (IEEPA), representing a constitutional clash over the separation of powers and presidential trade authority.
Roadmap
Opening: Explosive Constitutional Questions
- September 9, 2025 certiorari grant and consolidation order
- Expedited briefing schedule for November 2025 oral arguments
- Stakes: Presidential power to tax trillions in trade and reshape the economy
Background: The Trump Tariff Orders
- Reciprocal Tariffs: 10% on virtually all imports, higher rates for 57 countries
- Trafficking Tariffs: Levies on Mexico, Canada, and China for drug enforcement
- IEEPA as claimed statutory authority for both tariff schemes
- National emergency declarations underlying the orders
The Central Legal Question
- Does "regulate" in IEEPA include power to impose tariffs?
- Constitutional separation of taxing vs. regulating powers
- Article I distinctions between taxation and commerce regulation
- Historical significance: "No taxation without representation"
Lower Court Journey
- Multiple simultaneous lawsuits in different courts
- District court and Court of International Trade conflicting approaches
- Federal Circuit en banc decision striking down tariffs
- Judge Taranto's influential dissent supporting tariff authority
Referenced Cases
Trump v. V.O.S. Selections | Case No. 24-1286 | Docket Link: Here
Question Presented: Whether IEEPA authorizes the President to impose these specific sweeping tariffs
Government Arguments:
- "Regulate" includes power to impose tariffs as lesser-included authority
- Historical practice supports broad executive trade power during emergencies
- Major questions doctrine doesn't apply in foreign policy contexts
V.O.S. Arguments:
- Constitutional separation requires clear authorization for taxation
- "Regulate" and "tariff" are distinct powers with different purposes
- Major questions doctrine requires explicit congressional authorization
Learning Resources v. Trump | Case No. 24-1287 | Docket Link: Here
Question Presented: Whether IEEPA authorizes any presidential tariffs whatsoever
Learning Resources Arguments:
- "Regulate" means control behavior, "tariff" means raise revenue - fundamentally different
- No historical practice of IEEPA tariffs in nearly 50 years
- Constitutional avoidance: IEEPA covers exports where tariffs are prohibited
Government Arguments:
- Plain text of "regulate importation" naturally includes tariff authority
- Yoshida precedent shows Congress ratified tariff interpretation
- Presidential action deserves greater deference than agency action
Key Legal Precedents Examined
Historical Foundation Cases
- Gibbons v. Ogden (1824): Marshall's distinction between taxing and regulating powers
- United States v. Yoshida International (1975): Nixon import surcharge precedent
- Federal Energy Administration v. Algonquin SNG (1976): "Adjust imports" includes fees
Modern Constitutional Doctrines
- Major Questions Doctrine: Clear authorization required for "vast economic and political significance"
- Constitutional Avoidance: Interpreting statutes to avoid constitutional problems
- Noscitur a Sociis: "Word known by company it keeps" interpretive principle
Strategic Legal Arguments
Government's Core Position
- Textual: "Regulate" includes "control" and "adjust by rule" - tariffs qualify
- Historical: Congressional ratification of Yoshida through IEEPA enactment
- Foreign Policy Exception: Major questions doctrine doesn't apply to national security
- Presidential vs. Agency: Direct presidential delegation deserves greater deference
Challengers' Core Position
- Separation of Powers: Taxing and regulating are constitutionally distinct
- Textual Context: Other IEEPA verbs don't involve revenue raising
- Constitutional Avoidance: Export tax prohibition requires narrow reading
- Major Questions: $4 trillion impact requires explicit authorization
Broader Constitutional Implications
If Government Wins
- Sweeping presidential tariff authority during declared emergencies
- Expansion of executive power over traditionally congressional domain
- Potential model for other emergency economic powers
If Challengers Win
- Reinforcement of congressional primacy over taxation
- Strengthening of major questions doctrine application to presidential action
- Constraint on emergency powers in economic regulation
Key Legal Concepts Explained
- IEEPA (International Emergency Economic Powers Act): 1977 law granting emergency economic authorities
- Major Questions Doctrine: Requirement for clear authorization for actions of vast significance
- Constitutional Avoidance: Interpreting statutes to avoid constitutional problems
- Separation of Powers: Constitutional division of authority between branches
- Foreign Policy Exception: Debate over whether normal limits apply to international contexts
Timeline and Practical Impact
- September 19, 2025: Opening briefs due
- September 23, 2025: Amicus briefs due
- October 20, 2025: Response briefs due
- October 30, 2025: Reply briefs due
- November 2025: Oral arguments (first week)
- Expected Decision: January 2026 or sooner
Transcript
Welcome back to SCOTUS Oral arguments and opinions.
Speaker A:Today we're diving into two of the most significant cases this term, cases that could reshape presidential power over trade and tariffs.
Speaker A:Please note that this podcast is read by an automated voice, but created by a very human lawyer who reads the briefs and opinions so you don't have to.
Speaker A:Things are slowly starting to ramp up on One First Street Last week, the Supreme Court allowed presidential actions to proceed as litigation ensued.
Speaker A:Also, the Supreme Court set their oral argument schedule for October and November.
Speaker A:I'll cover these cases as oral arguments get closer.
Speaker A:The biggest action took place yesterday, which is the subject of today's episode.
Speaker A:On September 9, the Supreme Court granted certiorari in the Trump tariffs cases.
Speaker A:The blockbuster cases are called Trump vs. Vos selections and learning resources vs. Trump.
Speaker A: in the first week of November: Speaker A:It's obvious what makes these cases so explosive.
Speaker A: ng tariffs on imports using a: Speaker A:The stakes couldn't be higher.
Speaker A:We're talking about the power to tax trillions of dollars in trade and fundamentally alter the American economy.
Speaker A:We're all well aware of what sparked this legal firestorm.
Speaker A:Earlier this year, President Trump issued a series of executive orders imposing what the Federal Circuit called two types of tariffs.
Speaker A:First, the reciprocal tariffs, a 10% tariff on imports from virtually every trading partner with higher rates for 57 specific countries.
Speaker A:The President characterized these as addressing large and persistent trade deficits.
Speaker A:Second, the trafficking tariffs levies on Mexico, Canada, and China to combat drug smuggling and other criminal activity.
Speaker A:The President relied on IEEPA as the source of authority for both sets of tariffs.
Speaker A:Now, here's what's fascinating about this legal framework.
Speaker A: IEEPA was enacted in: Speaker A:The law allows the President, during a declared national emergency, to regulate the importation or exportation of property in which foreign countries have an interest.
Speaker A:The key word here is regulate, and that single word is at the heart of this entire legal battle.
Speaker A:The fundamental question before the Court is deceptively, does the word regulate in IEEPA include the power to impose tariffs?
Speaker A:This might sound like academic hair splitting, but it's actually about one of the most basic principles in American government, the separation of powers.
Speaker A:The Constitution gives Congress the exclusive power to lay and collect taxes, duties, imposts and excises.
Speaker A:That's in Article 1, Section 8, Clause 1 separately, in Clause 3, Congress gets the power to regulate commerce with foreign nations.
Speaker A:The Constitution's framers wrote these as separate powers for a reason.
Speaker A:As one brief puts it, they were wary of executive use of taxation.
Speaker A:Given the history of colonial resistance to Crown imposed duties levied without consent.
Speaker A:Think about it.
Speaker A:The Boston Tea Party wasn't about regulation.
Speaker A:It was about taxation without representation.
Speaker A:That's quite a mouthful.
Speaker A:But look at what the statute does say.
Speaker A:It includes the word regulate alongside much more expansive powers like prevent or prohibit any acquisition, holding or importation.
Speaker A:The government argues that regulate is actually a lesser included power within this broader grant of authority.
Speaker A:If the President can completely prevent or prohibit importation, surely the President can take the less drastic step of imposing tariffs to control or limit imports.
Speaker A:Now notice what's missing.
Speaker A:Nowhere does IEEPA use the words tariff, duty, tax, or any similar term.
Speaker A:The government's entire case rests on squeezing tariff authority out of that single word, regulate.
Speaker A:The challengers argue that when Congress wants to grant tariff power, Congress knows exactly how to do it.
Speaker A:Congress has done so explicitly throughout Title 19 of the US Code, which governs customs duties using unmistakable language like impose duties or levy tariffs.
Speaker A:What's remarkable about these cases is how they raced through the courts.
Speaker A:Multiple lawsuits were filed almost immediately after the tariff orders were issued.
Speaker A:Some went to federal district courts, others to the specialized Court of International Trade, which normally handles tariff disputes.
Speaker A:The district court, in Learning Resources vs Trump, ruled that IEEPA doesn't authorize tariffs at all.
Speaker A:Meanwhile, the Court of International Trade in the VOS Selections case took a more nuanced approach, saying IEEPA might authorize some tariffs, but not these particular ones because they were too broad and unlimited.
Speaker A: Circuit's decision in August: Speaker A:The court, sitting en banc, meaning all the judges participated, struck down the tariffs.
Speaker A:But here's where it gets interesting.
Speaker A:The majority said IEEPA doesn't authorize these specific tariffs because they're too sweeping and unlimited.
Speaker A:A concurring group of judges went further, saying IEEPA doesn't authorize any tariffs whatsoever.
Speaker A:Judge Taranto wrote a lengthy dissent that would become central to the government's Supreme Court argument.
Speaker A:Judge Taranto argued that IEEPA's plaintext does authorize tariffs and that the majority essentially rewrote the statute.
Speaker A:Taranto emphasized that regulate importation naturally includes the power to impose tariffs, pointing to dictionary definitions and arguing that tariffs are simply a less extreme tool than the outright prohibitions.
Speaker A:IEEPA clearly allows the Federal Circuit state its decision pending supreme court review so the tariffs remain in effect.
Speaker A:While this litigation plays out, let's break down what each side argued in their cert petitions.
Speaker A:The government's brief, signed by Solicitor General D. John Sauer, makes several key arguments.
Speaker A:First, on the text of ieepa, the government argues that the ordinary meaning of regulate clearly includes the power to impose tariffs.
Speaker A:The government cites Black's Law Dictionary defining regulate as to fix, establish, or control to adjust by rule, method, or established mode.
Speaker A:The government's position is straightforward.
Speaker A:Imposing tariffs is obviously a way of controlling imports and subjecting them to governing principles or laws.
Speaker A:After looking at the text, the government offered historical support.
Speaker A: s to Chief Justice Marshall's: Speaker A:The government argues this shows that from the very beginning American law has understood regulation and taxation as overlapping powers.
Speaker A: nment also leans heavily on a: Speaker A:Algonquin sn.
Speaker A:G. In that case, the Court interpreted statutory language authorizing the President to adjust the imports of oil to include not just quotas but also license fees, essentially monetary charges.
Speaker A:The government argues that if adjust imports includes fees, then regulate importation must certainly include tariffs.
Speaker A: heir historical argument on a: Speaker A: se involved President Nixon's: Speaker A:The Court of Customs and Patent Appeals ruled that the Trading with the Enemy act, which used language virtually identical to IEEPA, authorized that surcharge.
Speaker A: the Congress enacted IEEPA in: Speaker A:The government argues this shows Congress knew courts had interpreted that language to include tariffs and chose to adopt that interpretation.
Speaker A:The government also emphasizes the national security context.
Speaker A:Cabinet members submitted declarations stating that these tariffs are among the country's top foreign policy priorities and that invalidating them would cause dangerous diplomatic embarrassment and expose the United States to the risk of retaliation.
Speaker A:Vos selections representing the private importers fires back with constitutional and textual arguments that cut to the heart of separation of powers.
Speaker A:They argue that the Constitution separates the power to tax from the power to regulate into different clauses for a reason.
Speaker A:Vos points to Gibbons v. Ogden, the same case the government cites but focuses on different language.
Speaker A:Chief Justice Marshall described the taxing and commerce powers as entirely distinct from each other and substantive and distinct.
Speaker A:Vos argues that when Congress wants to grant both regulatory and taxation authority, Congress does so explicitly and separately.
Speaker A:The brief points to examples like the securities Exchange act, where Congress gave the SEC power to regulate certain transactions but never granted taxation authority based on that regulatory power.
Speaker A:What's particularly compelling is Vos's textual argument.
Speaker A:Using the principle of nauseitur associ, a word is known by the company it keeps.
Speaker A:IEEPA lists several investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit.
Speaker A:Vos argues that none of these other verbs involve raising revenue, so regulate shouldn't either.
Speaker A:Vos also raises a constitutional avoidance argument that's quite clever.
Speaker A:IEEPA grants power to regulate importation or exportation in the same clause, but the Constitution prohibits export taxes.
Speaker A:If regulate included taxation power, IEPA would be unconstitutional with respect to exports.
Speaker A:Vos argues courts should interpret regulate to avoid this constitutional problem on the Major Questions doctrine, a relatively new legal principle requiring clear congressional authorization for actions of vast economic and political significance, Vos argues these tariffs easily qualify the government estimates they could generate $4 trillion in revenue, affecting 14% of the U.S. economy.
Speaker A:Vos calls IEEPA's bear word regulate a wafer thin reed on which to rest such sweeping power.
Speaker A:Learning Resources the educational toy company takes an even more aggressive approach, arguing that IEEPA authorizes no tariffs whatsoever.
Speaker A:The company's textual argument focuses relentlessly on the meaning of regulate versus tariff.
Speaker A:Learning Resources notes that to regulate means to control by rule or subject to restrictions, while to tariff means to impose duties or customs on imports or exports.
Speaker A:The company argues these are fundamentally different.
Speaker A:Regulation controls behavior while tariffs raise revenue.
Speaker A: ance on Yoshida, calling it a: Speaker A:The company argues that Yoshida was wrongly decided and that Congress's passing reference to it in IPA's legislative history doesn't constitute ratification.
Speaker A:LR relies heavily on historical practice.
Speaker A:The company notes that until now, no president has ever relied on a power to regulate importation to impose tariffs in IPA's nearly 50 year history.
Speaker A:This absence of historical practice, LR argues, weighs heavily against broad interpretation.
Speaker A:The company also makes a constitutional avoidance argument, pointing out that IEEPA covers both imports and exports in the same clause, but the Constitution prohibits export taxes.
Speaker A:The government's response brief in the Learning Resources case reveals the administration's strategy for defending these tariffs, the government doubles down on the ordinary meaning of regulate, again citing dictionary definitions and arguing that imposing tariffs clearly falls within the power to control or adjust by rule.
Speaker A:The government emphasizes that this interpretation is reinforced by Supreme Court precedent, particularly Gibbons versus Ogden and Algonquin.
Speaker A:But the government's most interesting argument involves the major questions doctrine.
Speaker A:The government argues this doctrine simply doesn't apply in the foreign policy context.
Speaker A:Citing Justice Kavanaugh's recent concurrence in FCCV Consumers Research, the government contends that the major questions canon applies only in the domestic sphere and has not been applied by this Court in the national security or foreign policy context.
Speaker A:The government's reasoning is that in foreign affairs the usual understanding is that Congress intends to give the President substantial authority and flexibility to protect America and the American people.
Speaker A:The government argues that the doctrine does not translate to those contexts because of the nature of presidential decision making in response to ever changing national security threats and diplomatic challenges.
Speaker A:The government also distinguishes between presidential and agency action.
Speaker A:The government argues that major questions doctrine concerns dissipate when Congress delegates authority directly to the President rather than to administrative agencies because the President is the most democratic and politically accountable official in government.
Speaker A:LR's reply brief attempts to tackle the government's key arguments.
Speaker A:On Algonquin, Elar argues the government is comparing apples to oranges.
Speaker A:Section 232 of the Trade Expansion act expressly addresses presidential changes to an import duty and had legislative history replete with references to duties, tariffs, import taxes, and fees.
Speaker A:By contrast, respondents cannot locate a single reference in IEEPA's history to any monetary exactions war whatsoever.
Speaker A:Learning Resources provides a powerful example.
Speaker A: ing the Communications act of: Speaker A:That law gives the FCC power to regulate communication carriers separately from imposing taxes for universal service.
Speaker A:LR argues that if regulate included taxation power, the FCC could ignore the limiting principles that Congress carefully wrote into the taxation provision, principles the Supreme Court just found crucial in upholding the act against a constitutional challenge on the major questions doctrine.
Speaker A:Learning Resources pushes back hard against the government's foreign affairs exception.
Speaker A:The company argues that what's at stake is a distinctly Article 1, not Article 2.
Speaker A:Tariffing power imposed on Americans.
Speaker A:Learning Resources invokes Youngstown Steel, noting that even in foreign policy contexts with obvious foreign policy implications, the Court has required clear congressional authorization, as there were when this Court invalidated the President's seizure of steel mills during the Korean War.
Speaker A:Learning Resources also cites numerous appellate decisions holding that the major questions doctrine applies to presidential action, not just agency action.
Speaker A:The Supreme Court's September 9th order consolidating these cases and expediting briefing signals.
Speaker A:The Court recognizes the national importance of these questions.
Speaker A: in the first week of November: Speaker A:The briefing schedule is aggressive opening briefs due September 19th amicus briefs by September 23rd response briefs by October 20th reply briefs by October 30th.
Speaker A:This timeline suggests the Court wants to resolve these questions quickly, likely issuing a decision before the end of the term.
Speaker A:What makes these cases so significant isn't just their immediate impact on trade policy.
Speaker A:They're really about fundamental questions of constitutional structure and presidential power.
Speaker A:If the Court sides with the government, future presidents will have sweeping authority to impose tariffs during declared emergencies.
Speaker A:And presidents have declared lots of national emergencies.
Speaker A:The implications could extend far beyond trade to touch virtually any aspect of the economy that involves foreign property or persons.
Speaker A:If the Court sides with the challengers, it will significantly constrain presidential power over trade policy and reinforce Congress's role as the primary driver of tax and trade policy.
Speaker A:The decision could also strengthen the major questions doctrine and its application to presidential action.
Speaker A:These cases also present fascinating questions about how courts should interpret statutes enacted decades ago in light of modern constitutional doctrines, like the Major Questions doctrine that didn't exist when IEEPA was passed.
Speaker A:As we await oral arguments in November, these consolidated cases represent a constitutional clash of the highest order.
Speaker A:At stake is nothing less than the balance of power between Congress and the president over one of government's most fundamental the power to tax.
Speaker A:The legal arguments on both sides are sophisticated and deeply rooted in constitutional text, history and precedent.
Speaker A:The government argues for a broad reading of executive power grounded in the ordinary meaning of regulate and historical practice.
Speaker A:The challengers argue for a narrow reading that preserves Congress's constitutional role as the primary driver of tax policy.
Speaker A:Whichever way the Court decides, the ruling will likely reshape the relationship between Congress and the president in ways that extend far beyond these particular tariffs.
Speaker A:We'll be following the case closely and will bring you full coverage of the oral arguments when they occur in November.
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