In a series of questions designed to draw out what limits Sauer thought existed on executive power, Gorsuch asked, “Could the president impose a 50% tariff on gas-powered cars and auto parts to deal with the unusual and extraordinary threat from abroad of climate change?” (This echoed the language of the statute the Solicitor General cited to justify the tariffs.)
“It’s very likely that could be done,” Sauer conceded.
“I think that would have to be the logic of your view,” Gorsuch replied.
“Obviously this administration would say that’s a hoax, this is not a real crisis,” Sauer said.
“I’m sure you would,” Gorsuch said to chuckles.
“But that would be a question for Congress, under our interpretation, not the courts,” Sauer said.
Gorsuch’s questioning touched on the “major questions doctrine,” first propounded in the court’s 2022 opinion in West Virginia v. Environmental Protection Agency. In that case, which resulted in the court striking down the Obama-era Clean Power Plan power plant regulations, the conservative majority argued that “given both separation of powers principles and a practical understanding of legislative intent, the agency must point to ‘clear congressional authorization’ for the authority it claims,” which it claimed the rules lacked.
In a note to clients following the emissions rules case, the white shoe law firm Davis Polk wrote that the majority opinion “does not provide guidance for applying the major questions doctrine in future cases,” but noted that a concurrence authored by Justice Gorsuch “attempted to provide such guidance for future cases.” In said concurrence, Gorsuch wrote that the major questions doctrine could be invoked when the executive branch is dealing with a question of “great political significance” or “a significant portion of the American economy.”
Hmm!
Some progressives flagged this aspect of the tariffs case as it worked its way through the courts, pointing out that it could call into question powers that future presidents may want to use to implement expansive industrial policy, including climate policy. Some of the broader legal arguments against the tariffs, Todd Tucker of the progressive Roosevelt Institute wrote in a brief, “tilt the scales overwhelmingly against progressive priorities.”
“Limits on Trump today will bind future presidents tomorrow. This could include centrists, progressives, MAGA types, or traditional conservatives, who will need or want robust executive tools to address ruinous competitiveness or climate emergencies.”
But in pursuit of their clients’ interests, advocates for striking down the tariffs were more than happy to pick up the thread dropped by Gorsuch to make libertarian-leaning arguments about presidential powers.
“It is simply implausible that in enacting” the International Emergency Economic Powers Act, the law Trump has used to justify his retributive import taxes, “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 or any and every product from any and every country at any and all times,” Neal Katyal, the lawyer arguing on behalf of a beer and wine distributor and a longtime figure in Democratic legal circles, said in his oral argument.
Perhaps seeking to appeal to the Republican majority on the court, Katyal returned to Justice Gorsuch’s climate change example, arguing that “if the government wins, another president could declare a ’climate emergency’ and impose huge tariffs without floors or ceilings, as Justice Gorsuch said.”
“My friend’s answer,” Katyal said, referring to Sauer, “is, ‘This administration would declare it a hoax.’ The next president may not quite say that.”
Many legal experts thought that the administration got the worse of the oral arguments and questioning of the attorneys, with conservative Justices Gorsuch and Amy Coney Barrett and Chief Justice John Roberts all asking skeptical questions of Sauer, while Justices Clarence Thomas and Samuel Alito repeatedly threw the White House argumentative lifelines, including, in Alito’s case, suggesting other laws that could justify the tariffs.
Alito even gently mocked Katyal, a Democrat who served as acting solicitor general in the Obama administration, for blatantly using conservative-tinged legal arguments about the scope of executive authority over the economy.
“I wonder if you ever thought that your legacy as a constitutional advocate would be the man who revived the non-delegation argument,” referring to the idea that certain powers are too much akin to lawmaking to delegate to the executive branch, which in theory could vastly restrict the authority of regulators.
But Katyal resisted the implied contradiction and persisted in targeting the right wing of an already conservative Supreme Court.
“Heck yes,” Katyal said. “I think Justice Gorsuch nailed it on the head when saying that when you’re dealing with a statute that is this open-ended — unlike anything we’ve ever seen.”
Image: Copernicus Climate Change Service
New Jersey Governor-elect Mikie Sherrill. Kena Betancur/Getty Images
