Supreme Court Justice Neil Gorsuch, who was nominated by President Donald Trump, battled Solicitor General D. John Sauer on Wednesday over the limits of executive power while hearing a case on the legality of Trump’s sweeping tariffs.
Sauer argued against lower court rulings that shot down Trump’s use of emergency powers under the International Emergency Economic Powers Act (IEEPA) to levy sweeping tariffs on foreign countries – a power solely granted to Congress in the Constitution.
Gorsuch asked Sauer, “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 we should disregard both major questions and non-delegation. So could Congress delegate to the president the power to regulate commerce with foreign nations as he sees fit? To lay and collect duties as he sees fit?”
“We don’t assert that here. That would be a much harder case now. In 1790–” Sauer replied as Gorsuch cut in, “Isn’t that the logic of your view, though?”
Sauer replied, “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.”
Gorsuch pushed back, “You’re saying we shouldn’t look, 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 affairs and the president has inherent authority and so delegation is off the books, more or less. If that’s true, what would prohibit Congress from just abdicating all responsibility to regulate foreign commerce, or for that matter, declare war to the President?”
Sauer replied, “We don’t contend that he could do that.”
Gorsuch pressed, “Why not? Well, because we’re dealing with a statute again that has a whole—I’m not asking about the statute, general, I’m asking about your theory of the Constitution and why the major questions or non-delegation, what bite it would have in that case.”
Sauer replied, “I would say by then you would move from the area where there’s enormous deference to the President—actually both the political branches—where here there’s inherent authority and pile on top of that, there’s a broad delegation.”
Gorsuch pushed back, “You’re saying there’s inherent authority in foreign affairs, all foreign affairs. So regulate commerce, duties, 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?”
Sauer responded, “That would be different than a situation where there are metes and bounds, so to speak. It would be a wholesale abdication.”
Below is the rest of their exchange:
Gorsuch: You say, we are not here to judge metes and bounds when it’s foreign—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 with more bite than that, you’re saying it’s something less. What is that?
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 approach is a very, very deferential application of the intelligible principle test, that that sort of wholesale abdication—
Gorsuch: So now you’re admitting that there is some non-delegation principle at play here, and therefore major questions as well, is that right?
Sauer: It’s a very limited—it would be very, very deferential and it is—and again the phrase that Justice Jackson uses—it just does not apply.
Gorsuch: I know, but that’s where you started off and now you’ve retreated from that as I understand it.
Sauer: Well, I think we would have as our front line position—assert the stronger position—that if the court doesn’t accept it then there is a fallback position.
Gorsuch: 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?
Sauer: Well, we don’t contend that, again.
Gorsuch: Well, you do! You say it’s unreviewable or there’s no manageable standard, nothing to be done, and now you’re—I think you—tell me if I’m wrong—you backed off that position.
Sauer: Maybe that’s fair.
Gorsuch: Okay.
Sauer: That would be, I think, an abdication. That would really be an abdication, not a delegation.
Gorsuch: I’m delighted to hear that. All right, and I want to return to it.
Watch the full clip above via CNN.
