The Volokh Conspiracy
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Firings, and Tariffs, and Trump, Oh My!
Justices Barrett and Kavanaugh are still chewing over Justice Gorsuch's questions from the tariffs case.
I attended the oral argument in the tariff case. Secretary of the Treasury Scott Bessent sat a few rows behind me, right next to Secretary of the Commerce Howard Lutnick. Every now and then, I turned around to look at Bessent and the other politicos. He was paying very close attention, and didn't doze off.
Now, Bessent seems to have some information we do not. Bessent told Fox Business that the ruling would likely come in January. If Bessent is right, the opinions in that case must be nearing completion. Yet, based on the oral argument in Slaughter, the tariff case is very much on the Justices' minds. These two cases may be landmark rulings for the separation of powers. In Slaughter, both Justices Kavanaugh and Barrett brought up the tariff case by name, and Justice Gorsuch called back to his questions from that sitting. Plus Solicitor General Sauer tried as hard as he could to avoid any discussion of the non-delegation doctrine and the major questions doctrine. If Bessent is right, then the Justices are just thinking out loud. But something tells me that the tariff case is not quite settled yet. As I wrote after that argument, counting to five may be tricky.
First, Justice Barrett recalled Justice Gorsuch's question concerning legislative vetoes:
And, actually, this is a question I truly don't know the answer to and I just thought of it during the argument as we were talking about bargains.
So both Justice Gorsuch and Justice Kagan were asking you about the bargain that Congress has made in creating these independent agencies. And I was struck by, you know, I remember Justice Gorsuch brought up in the tariffs argument the fact that the tariff statute had a legislative veto originally. I don't know whether the original 1935 FTC Act from Humphrey's did or did not.
But I guess the question that I have, is that part of the bargain? Because legislative vetoes were pretty ubiquitous throughout the Twentieth Century. . . .
But I guess what I'm saying is, having lost that check, maybe these independent agencies have become something that Congress didn't intend or anticipate even at the point that it set it up, which is the point that Justice Gorsuch made in the tariff argument with respect to IEEPA.
I wrote about the legislative veto issue here. Barrett's intuition was right. Congress added a legislative veto over FTC rules in 1980, but that "bargain" was upset by Chadha.
Second, Justice Kavanaugh called back to Justice Gorsuch's questions concerning veto overrides:
Well, once the power is taken away from the President, it's very hard to get it back in the legislative process. Kind of the flip side of what we were talking about in the tariffs case because the Congress, the real world of this is the independent agencies shift power from the presidency to the Congress. Everyone recognizes that.
I think Congress has more control over the independent agencies than they do over the executive agencies. Congress doesn't want to give that up. It's hard for the President to get new legislation passed that would, for example, convert an independent agency to an executive agency.
Do you have an answer to that real -I mean, I think just leave it to Congress ignores the reality of the legislative process and Congress's desire to keep that power that they have had that most people have recognized over the independent agencies.
That's a theory out there. I just want to get your response to that.
I wrote about the veto overrides in the tariff case here.
In the tariffs case, Justice Gorsuch described delegation as a one-way ratchet that, as a practical matter, cannot be retrieved.
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? . . . But what happens when the President simply vetoes legislation to try to take these powers back? . . . 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.
Justice Barrett returned to Gorsuch's question:
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? . . . 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.
As the argument goes, if the Court upholds the President's reading of IEEPA, Congress would need a veto-proof majority to claw back that power. But as Kavanaugh suggests, Slaughter presents the "flip side" of the tariff case. Imposing the removal protections on commissioners only took a majority of both houses, and the signature of a President. But if the Court upholds the removal protections on commissioners, it will be virtually impossible for those restrictions to ever be repealed. Why would Congress ever relinquish this power? Moreover, while members of Congress could at least try to pass a bill modifying IEEPA, the President would have no mechanism to force a vote on a bill reforming the FTC. (Under the Recommendation Clause, the President has the power to recommend legislation to Congress, but Congress is under no obligation to act.)
Third, I think Justice Gorsuch sees the tariffs case and Slaughter as inextricably linked--as two sides of the same coin. As Gorsuch sees it, through IEEPA, Congress gave too much legislative power to the executive branch. And, as Gorsuch sees it, through the FTC Act, Congress asserted too much control over the executive branch. Gorsuch's remedy for this double malady is two-fold: apply the non-delegation doctrine to return all legislative powers to Congress, and apply the unitary executive theory to return all executive powers to the President. Yet, the Court seems poised to only take the latter step in Slaughter, and not the former step in the tariff case.
Let's walk through the analysis.
Justice Gorsuch asked Solicitor General John Sauer about reinvigorating the non-delegation doctrine.
JUSTICE GORSUCH: General, let me suggest to you that perhaps Congress has delegated some legislative power to these agencies. Let's just hypothesize that. And let's hypothesize too that this Court has taken a hands-off approach to that problem through something called the intelligible principle doctrine, which has grown increasingly toothless with time. Is the answer perhaps to reinvigorate the intelligible principle doctrine and recognize that Congress cannot delegate its legislative authority? Is the water warm, General?
Sauer seemed a bit confused by the last part:
GENERAL SAUER: Sorry. What was the last --I couldn't hear the last bit.
JUSTICE GORSUCH: Is the water warm?
GENERAL SAUER: Is the water warm?
JUSTICE GORSUCH: Warm.
Is the water warm? Huh? Is that an expression. I think Justice Gorsuch was trying to ask subtly whether the climate was right to add some teeth to the non-delegation doctrine. (Gorsuch is not usually known for his subtlety.)
Sauer replied that the "members of this Court have debated the scope of the non-delegation doctrine" but the remedy in Slaughter is simpler:
GENERAL SAUER: Here, though, this wolf comes as a wolf, right? I mean, the restriction on executive power is right there in the statute. It's easy to remedy by excising the removal restriction in the past group of cases.
But Gorsuch wanted to go further.
JUSTICE GORSUCH: There are a lot of wolves around here, General. The one thing our Framers knew is that every political actor seeks to enhance its own power. We all know that to be true from our own experiences. And this Court, as part of this bargain, has allowed these agencies to exercise both executive and legislative. Justice Sutherland, whose name hasn't been invoked around here in quite a while, his --his language about quasi-legislative and quasi-judicial and quasi-this powers, and this Court has allowed that for a very long time. But, if we're not going to allow it any longer, I take the point --I take the point that this has allowed a bargain where a lot of legislative power has moved into these agencies, but, if they're now going to be controlled by the President, it seems to me all the more imperative to do something about it.
What should be done? Reinvigorate the non-delegation doctrine.
Sauer again tried to stay on task, and told Gorsuch to focus on the removal power issue--the Fenris!
GENERAL SAUER: I agree with that. And we can't --I can't address all the wolves in the world, but this wolf, when it comes to constitutional structure, is Fenris, the most dangerous wolf in --in the history of Norse mythology.
Later in the argument, Justice Kavanaugh poured even more cold water on Gorsuch's dream of reviving the non-delegation doctrine. For Justice Kavanaugh, the major questions doctrine is enough.
JUSTICE KAVANAUGH: I want to return to what Justice Kagan and Justice Gorsuch were talking about with you in terms of the --the bargain, and I think broad delegations to unaccountable independent agencies raise enormous constitutional and real-world problems for individual liberty, as you just mentioned. I've obviously said that many times in prior opinions.
I thought one aspect of that that we've taken great steps to correct has been the major questions doctrine over the last several years to rein in what Justice Kagan was talking about, these broad delegations, to make sure that we are not just being casual about assuming that Congress has delegated major questions of political or economic significance to independent agencies or to any agencies for that matter. Do you want to speak to the major questions doctrine and how that fits into your answer?
Solicitor General Sauer again tried to re-orient the Court on the removal power issue. Indeed, the federal government is not so keen on the major questions doctrine at the moment, as it could affect the President's tariff authority.
GENERAL SAUER: Suffice to say that the major questions doctrine is not a substitute for the President's removal power. It may have done some work in backstopping the fact that we do have these independent agencies without a political discipline. But the President's removal power is what is dictated by the Constitution, that the President must have the power to control and that these agencies --the one who has the power to remove is the one who --is the person that they have to fear and obey.
The tariff case was looming large in the background of Slaughter.
