{"id":3294,"date":"2025-06-20T18:27:12","date_gmt":"2025-06-20T22:27:12","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/jlpp\/?p=3294"},"modified":"2025-12-20T14:26:06","modified_gmt":"2025-12-20T18:26:06","slug":"the-presidents-authority-to-impose-tariffs-chad-squitieri","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/jlpp\/the-presidents-authority-to-impose-tariffs-chad-squitieri\/","title":{"rendered":"The President’s Authority to Impose Tariffs – Chad Squitieri"},"content":{"rendered":"\n
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The President\u2019s Authority to Impose Tariffs<\/h2>\n\n\n\n

Chad Squitieri*<\/em><\/a><\/h3>\n\n\n\n

Introduction<\/h3>\n\n\n\n

The International Emergency Economic Powers Act (\u201cIEEPA\u201d)[1]<\/sup><\/a> empowers the President to \u201cregulate . . . importation.\u201d  One might think that this broad grant of statutory authority includes the power to regulate importation through a traditional and familiar means: tariffs.  But in Learning Resources v. Trump<\/em>,[2]<\/sup><\/a> the District Court ruled otherwise.<\/p>\n\n\n\n

The District Court concluded that, to empower the President to impose tariffs, Congress must do more than empower the President to \u201cregulate . . . importation.\u201d  Congress must instead use different \u201cwords,\u201d like \u201c\u2018tariffs\u2019 or \u2018duties,\u2019 their synonyms, or any other similar terms like \u2018customs,\u2019 \u2018taxes,\u2019 or \u2018imposts.\u2019\u201d[3]<\/sup><\/a>  This Essay will explain why it is mistaken to impose that type of magic-word requirement on Congress.<\/p>\n\n\n\n

In short: Although the District Court was adamant that imposing tariffs requires an exercise of taxation <\/em>power, rather than the power to regulate commerce<\/em>, the Constitution\u2019s original meaning and Supreme Court precedent indicate that tariffs can be used in both<\/em> the taxation and commerce-regulation settings.  Thus, by clearly delegating power to regulate foreign commerce\u2014a power that has long been understood to include the authority to impose tariffs\u2014IEEPA is best understood as delegating tariff-setting authority to the President.   What\u2019s more, neither the nondelegation doctrine nor the major questions doctrine invalidate IEEPA\u2019s delegation of tariff authority.<\/p>\n\n\n\n

I.                 The District Court\u2019s Analysis<\/h2>\n\n\n\n

To determine whether IEEPA\u2019s grant of power to \u201cregulate . . . importation\u201d includes the power to impose tariffs, the District Court in Learning Resources <\/em>drew a distinction between the power to tax<\/em> and the power to regulate<\/em>.  As the District Court explained, \u201c[t]he Constitution recognizes and perpetuates\u201d this \u201cdistinction.\u201d[4]<\/sup><\/a>   Most notably, the former power is vested in the Article I Taxation Clause,[5]<\/sup><\/a> and the latter power vested in the Article I Foreign Commerce Clause.[6]<\/sup><\/a>  The District Court therefore felt that, because those two powers were distinct, it meant that \u201c[i]f imposing tariffs and duties were part of the power \u2018[t]o regulate [c]ommerce with foreign [n]ations,\u2019\u201d then \u201c[the Taxation] Clause . . . would have no independent effect.\u201d[7]<\/sup><\/a><\/p>\n\n\n\n

To further justify its taxation\/regulation dichotomy, the District Court quoted Chief Justice Marshall\u2019s observation in Gibbons v. Ogden<\/em> that \u201cthe power to regulate commerce is . . . entirely distinct from the right to levy taxes and imposts.\u201d[8]<\/sup><\/a>  The District Court also observed that IEEPA uses the word \u201cregulate\u201d alongside other words that the court did not think related to revenue-raising\u2014such as \u201cinvestigate, block[,] . . . direct[,] . . .  compel, nullify, void, prevent or prohibit.\u201d[9]<\/sup><\/a><\/p>\n\n\n\n

In addition, the District Court pointed to dictionary definitions of the terms \u201ctariff\u201d and \u201cregulate,\u201d and concluded that \u201c[t]o regulate is to establish rules governing conduct; to tariff is to raise revenue through taxes on imports or exports.\u201d[10]<\/sup><\/a>  Then, having set up a distinction between the power to tax and the power to regulate commerce, and having concluded that imposing tariffs required an exercise of the former (i.e.<\/em>, taxation) power, the District Court ruled that IEEPA did not delegate any tariff-setting authority.[11]<\/sup><\/a><\/p>\n\n\n\n

Along the way, and to sure-up its statutory interpretation, the District Court made passing references to some of the Supreme Court\u2019s recent major questions decisions.  Citing Biden v. Nebraska<\/em>, the District Court wrote that, \u201c[i]f Congress had intended to delegate to the President the power of taxing<\/em> ordinary commerce from any country at any rate for virtually any reason, it would have had to say so.\u201d[12]<\/sup><\/a>  The court also cited NFIB v. OSHA<\/em> for the proposition that a \u201clack of historical precedent, coupled with the breadth of authority that the [President] now claims, is a telling indication that the [tariffs] extend[] beyond the [President\u2019s] legitimate reach.\u201d[13]<\/sup><\/a>  This later citation was relevant in the court\u2019s view because \u201c[i]n the five decades since IEEPA was enacted, no President until now has ever invoked the statute\u2014or its predecessor, TWEA\u2014to impose tariffs.\u201d[14]<\/sup><\/a><\/p>\n\n\n\n

II.               Tariffs as a Means of Regulating Commerce<\/h2>\n\n\n\n

The District Court was wrong to conclude that tariffs require an exercise of Congress\u2019s power to tax.  That is because originalist evidence and Supreme Court precedent indicate that tariffs can be used to both raise revenue and regulate foreign commerce.<\/p>\n\n\n\n

As Professor Robert Natelson explains, \u201c[d]uring the founding era, commercial regulation<\/em> was understood to entail financial impositions.\u201d[15]<\/sup><\/a>  Thus, a \u201clegislature might adopt an imposition purely for regulatory<\/em> purposes\u2014by, for example, levying tariffs<\/em> high enough to inhibit foreign imports and thereby protect domestic producers.\u201d[16]<\/sup><\/a>  Indeed, although American \u201cpamphleteers staunchly contested efforts by Parliament to \u2018tax\u2019 them\u201d in the lead-up to the Revolution, the pamphleteers \u201cconceded the authority of the British government to regulate commerce <\/em>. . . by . . . imposing prohibitory tariffs<\/em> to restrict trade.\u201d[17]<\/sup><\/a><\/p>\n\n\n\n

A founding-era legislature could, of course, also impose another form of financial imposition\u2014taxes\u2014in the appropriate context.  And duties were one form of taxation.  But in the founding era, \u201cnot all duties were taxes.\u201d[18]<\/sup><\/a>  To the contrary, \u201c[s]ome [duties] were imposed not for revenue but merely to regulate (or effectively prohibit) trade in particular articles.\u201d[19]<\/sup><\/a>  Indeed, duties were apparently such a prominent form of regulating commerce that, \u201c[a]t the federal convention\u201d a delegate \u201csought to limit export \u2018duties\u2019 to those for regulatory purposes only.\u201d[20]<\/sup><\/a><\/p>\n\n\n\n

This historical evidence demonstrates that, at the founding, financial impositions could be imposed both for revenue-raising and for commerce-regulating purposes.  So, the fact that a particular financial imposition (e.g.<\/em>, a tariff) could <\/em>qualify as a revenue-raising tax does not mean that the same type of imposition (e.g.<\/em>, a tariff) could not also <\/em>qualify as a form of regulating commerce.  The powers were, in this sense, overlapping. A tariff could be an exercise of either power.  As Natelson writes, \u201c[u]nder the Constitution\u2019s original legal force,\u201d a congressional decision \u201cto assist the [domestic] cotton trade by . . .  impos[ing] a $1 million levy on each imported wool item\u201d would \u201cprobably\u201d have been deemed \u201cvalid as a regulation of foreign commerce\u201d even if it were \u201cprobable\u201d that the protective tariff \u201craised no revenue.\u201d[21]<\/sup><\/a><\/p>\n\n\n\n

Early congressional action offers additional evidence that an original understanding of the foreign commerce power included the power to impose tariffs to promote domestic industry.  Writing in 1828, James Madison noted that \u201cthe first session of the first Congress\u201d \u201cmade use\u201d of \u201cthe power to regulate trade\u201d in order to \u201cencourage Manufactures.\u201d[22]<\/sup><\/a><\/p>\n\n\n\n

To wit, the Tariff Act of 1789\u2014signed into law by George Washington on the Fourth of July\u2014was enacted both \u201cfor the support of government\u201d (i.e.<\/em>, revenue raising) and for \u201cthe encouragement and protection of manufacturers\u201d (i.e.<\/em>, commerce regulation).[23]<\/sup><\/a>  The Act placed duties on a lengthy list of goods.[24]<\/sup><\/a>  For example, and as Madison no doubt noted with a grin, Virginians \u201cdid not hesitate to\u201d support \u201cduties\u201d that \u201cfavor[ed] . . . several articles of [Virginia] production.\u201d[25]<\/sup><\/a>  Reflecting in 1828 on forty years of similar and unquestioned practice, Madison thought there was more than sufficient \u201cevidence in support of the Cons[tituional] power to protect [and] foster manufactures by regulations of trade.\u201d[26]<\/sup><\/a><\/p>\n\n\n\n

Joseph Story offered a similar conclusion in 1833 when he asked: \u201cWhy does the power\u201d to \u201cregulate commerce . . . involve the right to lay duties?\u201d[27]<\/a>  His answer: \u201cSimply, because [laying duties] is a common means of executing the power [to regulate commerce].\u201d[28]<\/a>  He reasoned further that the raising of \u201crevenue is an incident to such an exercise of the power.\u201d[29]<\/a>  Thus, the mere fact that a tariff raises revenue does not in and of itself require an exercise of taxation power, rather than commerce-regulation power.  Instead, revenue \u201cflows from, and does not create the power\u201d to regulate commerce.\u201d[30]<\/a><\/p>\n\n\n\n

The Supreme Court has similarly recognized that tariffs can be a form of both taxation and commerce-regulation.  In Bd. of Trs. of Univ. of Illinois v. United States<\/em>,[31]<\/a> the Supreme Court recognized that even though \u201cthe taxing power is a distinct power and embraces the power to lay duties, it does not follow that duties may not be imposed in the exercise of the power to regulate commerce<\/em>.\u201d[32]<\/sup><\/a>  Rather, \u201c[t]he contrary is well established.\u201d[33]<\/sup><\/a>  Quoting Joseph Story, the Court explained that \u201c[t]he laying of duties is \u2018a common means of executing the power\u2019\u201d of regulating commerce, and that \u201c[i]t has not been questioned that this power may be exerted by laying duties \u2018to countervail the regulations and restrictions of foreign nations.\u2019\u201d[34]<\/sup><\/a><\/p>\n\n\n\n

Similarly, in  McGoldrick v. Gulf Oil Corp.<\/em>,[35]<\/a> the Court wrote that, although \u201c[t]he laying of a duty on imports\u201d can<\/em> be \u201can exercise of the taxing power,\u201d it \u201cis also<\/em> an exercise of the power to regulate foreign commerce.\u201d[36]<\/sup><\/a>  For that reason, \u201c[c]ustoms regulations\u201d concerning \u201cimports\u201d could be understood as falling \u201cwithin the Congressional power\u201d to regulate foreign commerce \u201csince such regulations are not only necessary or appropriate to protect the revenue, but are means to . . . the regulation of foreign commerce . . . .\u201d[37]<\/sup><\/a><\/p>\n\n\n\n

III.             Flaws in the District Court\u2019s Analysis<\/h2>\n\n\n\n

Given that tariffs have long been recognized as common means of both raising revenue and regulating commerce, the District Court in Learning Resources <\/em>was mistaken when it wrote that \u201c[t]o regulate is to establish rules governing conduct; to tariff is to raise revenue through taxes on imports or exports.\u201d[38]<\/sup><\/a>  Sure, some <\/em>tariffs are revenue-raising taxes.  But not all<\/em> tariffs.  Other tariffs are a means of regulating foreign commerce.<\/p>\n\n\n\n

Once one recognizes the inherent flaw in the District Court\u2019s position that tariffs must be a means of taxation, the secondary flaws in the court\u2019s various defenses of its position become clearer as well.<\/p>\n\n\n\n

Independent Effect<\/em>.  Consider the District Court\u2019s rationale that, \u201c[i]f imposing tariffs and duties were part of the power \u2018[t]o regulate [c]ommerce with foreign [n]ations,\u2019 then\u201d the Taxation Clause \u201cwould have no independent effect.\u201d[39]<\/sup><\/a>  That logic is faulty, and was all but expressly rejected by Madison.<\/p>\n\n\n\n

As to the logic: the Taxation Clause does not require Congress to raise revenue through tariffs; Congress can also raise revenue through other means permitted by the Taxation Clause.  For that reason alone, the Taxation Clause is not made superfluous simply because the Foreign Commerce Clause also empowers Congress to impose tariffs.  What is more, even if one were to focus solely on the Taxation Clause\u2019s tariff component, the Clause would still have \u201cindependent effect\u201d because it gives Congress a second justification for imposing tariffs.  Having both justifications available is not superfluous; it frees Congress to impose tariffs in varying situations.<\/p>\n\n\n\n

As to Madison: in his 1828 letter concerning \u201cthe constitutionality of the power in Cong. to impose a tariff for the encourag[e]m[en]t[] of Manufactures,\u201d Madison pointed to both the Taxation Clause and the Commerce Clause as sources of authority.[40]<\/sup><\/a>  And he did not think it problematic that the two clauses gave Congress overlapping authority.  To the contrary, examples of overlapping powers could be seen \u201celsewhere in the Constitution\u201d as well.[41]<\/sup><\/a>  Such \u201c[p]leonasms, tautologies [and] the promiscuous use of terms [and] phrases\u201d were to \u201cbe ascribed sometimes to the purpose of greater caution; sometimes to the imperfections of language; [and] sometimes to the imperfection of man himself.\u201d[42]<\/sup><\/a>  Thus, \u201cit was quite natural, however certainly the general power to regulate trade might include a power to impose duties on [trade], not to omit [the power to impose duties] in a clause enumerating the several modes of revenue authorized by the Constitution.\u201d[43]<\/sup><\/a><\/p>\n\n\n\n

Chief Justice Marshall.  <\/em>Next consider the District Court\u2019s reliance on Chief Justice Marshall\u2019s statement in Gibbons <\/em>that \u201cthe power to regulate commerce is . . . entirely distinct from the right to levy taxes and imposts.\u201d[44]<\/sup><\/a>  It is true that commerce regulation and taxation are distinct powers.  But it does not follow that a particular tool (i.e<\/em>.<\/em>, tariffs) is limited to exercises of only one of those powers.  Indeed, one need only to keep reading Marshall\u2019s Gibbons <\/em>opinion to understand that, although the taxation and regulation powers are distinct, \u201c[t]he right to regulate commerce<\/em> . . . by the imposition of duties . . . was not controverted\u201d by the \u201cillustrious statesmen and patriots\u201d of the founding era.[45]<\/sup><\/a><\/p>\n\n\n\n

As Marshall explained, it was \u201cno novelty to the framers of our constitution\u201d that \u201cthe same measure might, according to circumstances, be arranged with different classes of power.\u201d[46]<\/sup><\/a>  Thus, although it was true that duties \u201cmay be . . . imposed with a view to revenue<\/em>,\u201d Marshall explained that it was also \u201ctrue[] that duties may often be, and in fact often are, imposed . . . with a view to the regulation of commerce<\/em>.\u201d[47]<\/sup><\/a><\/p>\n\n\n\n

Dictionary Definitions.  <\/em>Third, consider the shortcomings in the District Court\u2019s use of the various dictionary definitions for \u201ctariff\u201d and \u201cregulate.\u201d[48]<\/sup><\/a>  Nothing in the definitions relied on by the court require one to conclude that tariffs must be limited to the revenue-raising context.<\/p>\n\n\n\n

Yes, \u201ctariffs\u201d might be defined as \u201cschedules of \u2018duties or customs imposed by a government on imports or exports.\u2019\u201d[49]<\/sup><\/a>  But note how that definition does not<\/em> limit tariffs to \u201cschedules of duties or customs imposed by a government on imports or exports to raise revenue rather than regulate commerce<\/em>.\u201d[50]<\/sup><\/a>  And yes, dictionaries might indicate that, \u201c[t]o regulate\u201d means \u201cto \u2018[c]ontrol by rule\u2019 or \u2018subject to restrictions.\u2019\u201d[51]<\/sup><\/a>  But why, exactly, would those definitions not permit a government to rule or restrict through the familiar means of imposing tariffs?  As Professor Jack Goldsmith observes, \u201ca schedule of government duties on imports is<\/em> a form of government control over imports by rule or an example of the government subjecting imports to restrictions.\u201d[52]<\/sup><\/a><\/p>\n\n\n\n

Noscitur a sociis<\/em>.  Finally, the District Court was off base when it argued that, \u201c[e]ven if regulate<\/em> may take a broad meaning in other contexts . . . the words immediately surrounding it\u201d in IEEPA \u201ccabin the contextual meaning of that term\u201d such that the term does not encompass tariff authority.[53]<\/sup><\/a>  Sure, IEEPA does list the term \u201cregulate\u201d alongside other terms like \u201cinvestigate, block \u2026 direct and compel, nullify, void, prevent or prohibit.\u201d[54]<\/sup><\/a>  And sure, one might spot the court the conclusion that the latter terms do not \u201cdeal[] with the power to raise revenue.\u201d[55]<\/sup><\/a>  But that conclusion is entirely immaterial.<\/p>\n\n\n\n

Tariffs are not restricted to the revenue-raising context, either.  Tariffs can instead be used to regulate commerce\u2014and the neighboring words in IEEPA are undoubtedly associated with regulating commerce, at least under modern precedent.[56]<\/sup><\/a>  What is more, as the originalist evidence outlined above indicates, \u201c[s]ome [duties] were imposed not for revenue but . . . to . . . effectively prohibit<\/em>[] trade.\u201d[57]<\/sup><\/a>  IEEPA\u2019s use of the terms \u201cblock,\u201d \u201cprevent,\u201d and \u201cprohibit\u201d therefore lend additional support for understanding IEEPA as delegating tariff authority.<\/p>\n\n\n\n

IV.            The Nondelegation and Major Questions Doctrines<\/h2>\n\n\n\n

The above analysis has explained how tariffs can be used as a means of regulating foreign commerce.  But regulating such commerce is a power vested in Congress, not the President.  It is therefore necessary to consider whether the nondelegation or major questions doctrines reveal IEEPA\u2019s delegation of tariff-authority to be defective.  Neither doctrine does.<\/p>\n\n\n\n

Start with the nondelegation doctrine.  It is nonsensical to require Congress to use special words relating to its power to tax (e.g.<\/em>, require IEEPA to use the word \u201ctaxes\u201d) in order to delegate the entirely distinct foreign commerce power.  But must Congress use some of the other special words flagged by the District Court (e.g.<\/em>, \u201ctariffs\u201d or \u201cduties\u201d) to delegate tariff-setting authority?  The answer is no.  And the answer turns on the fact that IEEPA\u2019s delegation occurs in the foreign affairs context\u2014where the President\u2019s own constitutional authority allows for Congress to delegate more power with less specificity than in the domestic realm.<\/p>\n\n\n\n

Congress\u2019s ability to delegate more freely in the foreign affairs context was recognized in United States v. Curtiss-Wright Export Corp<\/em>.[58]<\/sup><\/a>  There, the Supreme Court explained that there are important \u201cdifferences\u201d between \u201cthe powers of the federal government in respect of foreign or external affairs and those in respect of domestic or internal affairs.\u201d[59]<\/sup><\/a>  In the foreign affairs context, statutory delegations must be interpreted alongside \u201cthe very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations.\u201d[60]<\/sup><\/a>  Thus, \u201c[i]f embarrassment . . . is to be avoided and success . . . achieved\u201d on the world stage\u2014where the President legitimately acts on the nation\u2019s behalf\u2014then \u201ccongressional legislation which is to be made effective through negotiation . . . within the international field must often accord to the President a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved.\u201d[61]<\/sup><\/a><\/p>\n\n\n\n

The Court\u2019s rationale in Curtiss-Wright<\/em> was consistent with earlier, 19th century Supreme Court precedent.[62]<\/sup><\/a>  But to focus on more recent writings, which offer particularly helpful insight into how the current Supreme Court might view the question, Justice Gorsuch suggested in his seminal dissent in Gundy v. United States<\/em> that the Constitution\u2019s nondelegation principle applies less forcefully in the foreign affairs context.[63]<\/sup><\/a>  Justice Gorsuch relied in particular on the Supreme Court\u2019s 1813 decision in Cargo of the Brig Aurora v. United States<\/em>, which concerned foreign importation authority granted to the President by statute.[64]<\/sup><\/a>  As Justice Gorsuch explained, \u201cwhen a congressional statute confers wide discretion to the executive, no separation-of-powers problem may arise if \u2018the discretion is to be exercised over matters already within the scope of executive power.\u2019\u201d[65]<\/a>  Thus, \u201cthe foreign-affairs-related statute in Cargo of the Brig Aurora<\/em> may be an example of . . . permissible lawmaking, given that many foreign affairs powers are constitutionally vested in the president under Article II.\u201d[66]<\/sup><\/a><\/p>\n\n\n\n

The upshot is that, in the foreign affairs context, Congress can more easily delegate more power.  IEEPA\u2019s general delegation of authority to \u201cregulate . . . importation\u201d is thus properly read as delegating a traditional and familiar means of regulating importation (i.e.<\/em>, tariffs)\u2014even though the statute does not use the magic word \u201ctariff.\u201d  Indeed, to not<\/em> read IEEPA\u2019s delegation as including tariff authority would be to inexplicably strip the President of a traditional and familiar means of regulating imports.  And a reviewing court should not insert itself into the field of international relations by inexplicably reading such authority out of a statute. Doing so would risk undermining the type of diplomatic success that can often be achieved (by statutory design) through the President.[67]<\/sup><\/a><\/p>\n\n\n\n

Particularly in the foreign affairs context, IEEPA satisfies the nondelegation doctrine\u2019s easy-to-satisfy intelligible principle test\u2014i.e.<\/em>, the current test used by courts to enforce the nondelegation doctrine.[68]<\/a>  Consider the analysis in United States v. Yoshida Int\u2019l, Inc.<\/em>, in which the United States Court of Customs and Patent Appeals considered the constitutionality of the Trading With the Enemy Act (\u201cTWEA\u201d).[69]<\/a><\/p>\n\n\n\n

TWEA was the statutory precursor to IEEPA, and TWEA contained statutory language that is materially identical to the IEEPA language at issue in Learning Resources<\/em>.[70]<\/a>  TWEA was cited as authority for President Nixon to impose certain \u201ctariffs . . . known as the \u2018Nixon shock.\u2019\u201d[71]<\/a>  And in Yoshida Int\u2019l<\/em>, the court held that the \u201cPresidential exercise\u201d of the TWEA tariff authority was constitutional in part because it was \u201climited to actions consistent with the national emergency purpose\u201d of the statute.[72]<\/a>  In explaining why TWEA\u2019s delegation of tariff authority was constitutional, the court further noted that \u201cthe power delegated\u201d by Congress was confined by the fact that it \u201cshall be applied only to \u2018property in which any foreign country or a national thereof has any interest.\u2019\u201d[73]<\/a>  What\u2019s more, TWEA cabined the President to act \u201cby means of instructions, licenses, or otherwise,\u201d[74]<\/sup><\/a> which \u201cmanifestly is restrictive in scope and is but one branch of many attached to the trunk of the tree in which is lodged the all-inclusive substantive power to regulate foreign commerce, vested solely in the Congress.\u201d[75]<\/sup><\/a><\/p>\n\n\n\n

Nearly identical limits are present in IEEPA. Like TWEA, IEEPA does not empower the President to exercise Congress\u2019s Foreign Commerce Clause power however he wants, whenever he wants.  IEEPA instead cabins the President\u2019s delegated authority by empowering him to deal with certain types of declared emergencies.[76]<\/sup><\/a>  Like TWEA, IEEPA further limits the President\u2019s response to those emergencies to dealing with certain foreign-related property.[77]<\/sup><\/a>  And like TWEA, IEEPA limits the President to taking only certain forms of actions.[78]<\/sup><\/a><\/p>\n\n\n\n

Moreover, IEEPA contains various exceptions to its statutory grant of authority.  For example, the President may not \u201cregulate . . . any postal, telegraphic, telephonic, or other personal communication, which does not involve a transfer of anything of value,\u201d nor may he ordinarily \u201cregulate\u201d any \u201cdonations, by persons subject to the jurisdiction of the United States, of articles, such as food, clothing, and medicine, intended to be used to relieve human suffering.\u201d[79]<\/a>  Similarly, IEEPA does not empower the President to regulate \u201cthe importation . . . of any information or informational materials, including but not limited to, publications, films, posters, phonograph records, photographs, microfilms, microfiche, tapes, compact disks, CD ROMs, artworks, and news wire feeds.\u201d[80]<\/a><\/p>\n\n\n\n

The above limitations demonstrate that, like TWEA, IEEPA does not give the president free range to exercise the foreign commerce power.[81]<\/a>  IEEPA instead requires the President to exercise delegated authority within the confines of statutory direction.  That statutory direction might be broad\u2014perhaps even much broader that the types of delegations that would be constitutionally permitted in the domestic context.  But IEEPA delegates power in the foreign affairs context, where broad presidential discretion is constitutionally permitted.<\/p>\n\n\n\n

The nondelegation doctrine\u2019s sensitivity to the foreign affairs context also explains why the District Court\u2019s hand-waving about the President\u2019s delegated-authority to impose tariffs \u201cat any rate for virtually any reason\u201d[82]<\/a> is unconvincing.  For one, the President is not claiming the authority to impose tariffs for any reason.  As Goldsmith observes, \u201c[t]he Trump administration did not, for example, assert an authority to issue IEEPA import duties in non-emergency or non-threat situations.\u201d[83]<\/sup><\/a>  But more fundamentally: Congress can<\/em> delegate strikingly broad discretion in the foreign affairs context given that the President already has his own foreign affairs authority.<\/p>\n\n\n\n

The major questions doctrine doesn\u2019t lead to a different conclusion, either.  If that doctrine is a substantive canon promoting the Constitution\u2019s nondelegation principle, as Justice Gorsuch has suggested,[84]<\/a> then the doctrine should account for the foreign affairs context just as the underlying nondelegation doctrine accounts for that context.  Alternatively, if the major questions doctrine is a linguistic canon, as Justice Barrett has suggested,[85]<\/a> then the \u201ccontextual evidence\u201d[86]<\/a> a court must consider when interpreting a delegation should include the fact that the President has his own foreign affairs authority.  Similar to how, if a \u201cbabysitter were a grandparent,\u201d she would be properly understood as having the major authority to take the kids on a \u201cmultiday excursion to an out-of-town amusement park\u201d since such context reveals that the grandparent-babysitter has underlying authority over the child,[87]<\/a> the President\u2019s underlying foreign affairs authority should lead a court to anticipate that statutory delegations to the President in the foreign affairs context include \u201cmajor\u201d authority in the ordinary course.<\/p>\n\n\n\n

Moreover, and regardless of whether the major questions doctrine is a substantive or linguistic canon, the doctrine properly applies in contexts where the executive branch has claimed \u201cunheralded\u201d statutory authority.[88]<\/sup><\/a>  And in Learning Resources<\/em>, the President is claiming tariff authority pursuant to statutory language that has, for half a century, been understood as empowering the President to impose tariffs.<\/p>\n\n\n\n

Sure, the long-established understanding of the President\u2019s tariff authority relates to what President Nixon\u2019s administration argued, and the Yoshida Int\u2019l.<\/em> court ruled, IEEPA\u2019s precursor statute to mean in the 1970s.[89]<\/sup><\/a>  And for that reason the District Court was not patently wrong to state that, \u201c[i]n the five decades since IEEPA was enacted, no President until now has ever invoked the [IEEPA]\u2014or its predecessor . . . to impose tariffs.\u201d[90]<\/sup><\/a>  But as was already noted, the precursor statute (i.e.<\/em>, the TWEA) used materially \u201cidentical\u201d[91]<\/sup><\/a> language to the IEEPA.  And both the Yoshida Int\u2019l.<\/em> court and the Nixon administration interpreted that statutory language as constitutionally granting tariff authority.[92]<\/sup><\/a>  Thus, the District Court\u2019s statement in Learning Resources <\/em>was a bit too reliant on carefully worded technicalities that miss the forest for the trees.  What\u2019s more: as Cargo of the Brig Aurora<\/em> demonstrates, Congress has been granting the President authority over foreign imports for over two-hundred years.[93]<\/sup><\/a>  The situation is therefore distinguishable from past major questions cases, where the claimed authority constituted a surprising and unheralded power-grab.<\/p>\n\n\n\n

Conclusion<\/h1>\n\n\n\n

The District Court erred in Learning Resources<\/em> by ruling that IEEPA does not delegate tariff authority.  The flaw in the court\u2019s analysis stemmed from its failure to recognize that tariffs can be used both to raise revenue and<\/em> regulate commerce.  By empowering the President to \u201cregulate . . . importation,\u201d IEEPA empowers the President to regulate importation through a traditional and familiar means: tariffs.<\/p>\n\n\n\n

*<\/a> Assistant Professor of Law, Catholic University of America\u2019s Columbus School of Law.<\/p>\n\n\n\n

[1]<\/a> 50 U.S.C. \u00a7 1702(a)(1)(B).<\/p>\n\n\n\n

[2]<\/a> Learning Res., Inc. v. Trump, No. CV 25-1248 (RC), 2025 WL 1525376 (D.D.C. May 29, 2025).<\/p>\n\n\n\n

[3]<\/a> Id.<\/em> at *8.<\/p>\n\n\n\n

[4]<\/a> Id.<\/em><\/p>\n\n\n\n

[5]<\/a> U.S. Const. Art. I, \u00a7 8, Cl. 1 (\u201cThe Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States\u201d).<\/p>\n\n\n\n

[6]<\/a> U.S. Const. Art. I, \u00a7 8, Cl. 3 (Congress shall have the power \u201cTo regulate commerce with foreign nations, and among the several states, and with the Indian tribes\u201d).<\/p>\n\n\n\n

[7]<\/a> Learning Resources<\/em>, 2025 WL 1525376 at *8.<\/p>\n\n\n\n

[8]<\/a> Id.<\/em> (quoting Gibbons v. Ogden<\/em>, 22 U.S. (9 Wheat.) 1, 201 (1824)).<\/p>\n\n\n\n

[9]<\/a> Id.<\/em> at *9 (quoting 50 U.S.C. \u00a7 1702(a)(1)(B)).<\/p>\n\n\n\n

[10]<\/a> Id.<\/em> at *8 (citations omitted).<\/p>\n\n\n\n

[11]<\/a> Id.<\/em> at *13.<\/p>\n\n\n\n

[12]<\/a> Id.<\/em> at *8 (quoting Biden v. Nebraska<\/em>, 143 S.Ct. 2355, 2375 (2023)) (emphasis added).<\/p>\n\n\n\n

[13]<\/a> Id.<\/em> at *10 (quoting Nat\u2019l Fed’n of Indep. Bus. v. Dep\u2019t of Lab., Occupational Safety & Health Admin.<\/em>, 595 U.S. 109, 119 (2022)).<\/p>\n\n\n\n

[14]<\/a> Id.<\/em><\/p>\n\n\n\n

[15]<\/a> Robert G. Natelson, What the Constitution Means by \u201cDuties, Imposts, and Excises\u201d\u2014and “Taxes” (Direct or Otherwise)<\/em>, 66 Case W. Rsrv. L. Rev. 297, 303 (2015) (emphasis added).<\/p>\n\n\n\n

[16]<\/a> Id.<\/em> at 305 (emphasis added).<\/p>\n\n\n\n

[17]<\/a> Id.<\/em> at 306 (emphases added).<\/p>\n\n\n\n

[18]<\/a> Id.<\/em> at 320.<\/p>\n\n\n\n

[19]<\/a> Id.<\/em><\/p>\n\n\n\n

[20]<\/a> Id.<\/em> at 320 n.127 (citing 2 The Records of the Federal Convention of 1787, at 363 (Max Farrand<\/p>\n\n\n\n

ed., 1937)).<\/p>\n\n\n\n

[21]<\/a> Id.<\/em> at 308.<\/p>\n\n\n\n

[22]<\/a> Letter from James Madison to Joseph C. Cabell (Sept. 18, 1828), in<\/em> 9 The Writings of James Madison (Gaillard Hunt eds. 1910) [hereinafter <\/em>\u201cMadison Letter\u201d].<\/p>\n\n\n\n

[23]<\/a> An Act for Laying a Duty on Goods, Wares, and Merchandises Imported into the United States, \u00a7 1, 1 Stat. 24 (1789).<\/p>\n\n\n\n

[24]<\/a> Id. <\/em>at 25\u201326.<\/p>\n\n\n\n

[25]<\/a> Madison Letter, supra <\/em>note 22.<\/p>\n\n\n\n

[26]<\/a> Id.<\/em><\/p>\n\n\n\n

[27]<\/a> 2 Joseph Story, Commentaries on the Constitution \u00a7 1084 (1833).<\/p>\n\n\n\n

[28]<\/a> Id.<\/em><\/p>\n\n\n\n

[29]<\/a> Id.<\/em><\/p>\n\n\n\n

[30]<\/a> Id.<\/em><\/p>\n\n\n\n

[31]<\/a> 289 U.S. 48 (1933)<\/p>\n\n\n\n

[32]<\/a> Id.<\/em> at 58 (emphasis added).<\/p>\n\n\n\n

[33]<\/a> Id. <\/em>(citing Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 201 (1824)).<\/p>\n\n\n\n

[34]<\/a> Id. <\/em>(quoting 2 Joseph Story, Commentaries on the Constitution \u00a7\u00a7 1083\u20131084).<\/p>\n\n\n\n

[35]<\/a> 309 U.S. 414 (1940).<\/p>\n\n\n\n

[36]<\/a> Id. <\/em>at 428 (emphasis added).<\/p>\n\n\n\n

[37]<\/a> Id.; see also <\/em>United States v. Yoshida Int\u2019l, Inc., 526 F.2d 560, 575 n.20 (C.C.P.A. 1975) (\u201cThough the power to tax and to lay duties upon imports and the power to regulate commerce are distinct, it is well established that the first power can be employed in the exercise of the second.\u201d) (citing cases).<\/p>\n\n\n\n

[38]<\/a> Learning Res., Inc. v. Trump, 1:25-cv-01248-RC, 2025 WL 1525376 at *8. (D.D.C. May 29, 2025).<\/p>\n\n\n\n

[39]<\/a> Id.<\/em><\/p>\n\n\n\n

[40]<\/a> Madison Letter, supra <\/em>note 22.<\/p>\n\n\n\n

[41]<\/a> Id.<\/em> As one example, Madison wrote that \u201ca power \u2018to coin money,\u2019 would doubtless include that of \u2018regulating its value,\u2019 had not the latter power been expressly inserted\u201d in the Constitution. Id.<\/em><\/p>\n\n\n\n

[42]<\/a> Id.<\/em><\/p>\n\n\n\n

[43]<\/a> Id.<\/em><\/p>\n\n\n\n

[44]<\/a> Id.<\/em> (quoting Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 201 (1824)<\/a>).<\/p>\n\n\n\n

[45]<\/a> Gibbons<\/em>, 22 U.S. at 202 (emphasis added).<\/p>\n\n\n\n

[46]<\/a> Id.<\/em><\/p>\n\n\n\n

[47]<\/a> Id.<\/em> (emphases added).<\/p>\n\n\n\n

[48]<\/a> Learning Res., Inc. v. Trump, 1:25-cv-01248-RC, 2025 WL 1525376 at *8 (D.D.C. May 29, 2025).<\/p>\n\n\n\n

[49]<\/a> Id. <\/em>(quoting Tariff<\/em>, Random House Dictionary of the English Language (1973)).<\/p>\n\n\n\n

[50]<\/a> This is consistent with founding-era usage.  \u201c[N]ot all duties were\u201d then understood to be \u201ctaxes.\u201d  Natelson, supra <\/em>note 15, at 320. And at that time, \u201ccustoms\u201d referred to \u201c[d]uties imposed on imports and exports.\u201d Id<\/em>. at 321.<\/p>\n\n\n\n

[51]<\/a> Id.<\/em> (quoting Regulate<\/em>, The Concise Dictionary of Current English (6th ed. 1976)).<\/p>\n\n\n\n

[52]<\/a> Jack Goldsmith, The Weaknesses in the Trump Tariff Rulings<\/em>, Executive Functions (May 30, 2024) (emphasis added), https:\/\/executivefunctions.substack.com\/p\/the-weaknesses-in-the-trump-tariff<\/a>.  The District Court was also off base when it suggested that, because other <\/em>statutes impose \u201cexpress procedural, substantive, and temporal limits on\u201d other grants of statutory tariff power, interpreting IEEPA as granting tariff power would require \u201cassum[ing] that, in enacting IEEPA, Congress repealed by implication every extant limitation on the President\u2019s tariffing authority.\u201d  Id<\/em>.  Not so.  Different statutes can impose different restrictions on different tariff authorities; the limitations relevant to IEEPA tariffs are the limitations found in IEEPA, not other statutes.  As Goldsmith explains, \u201cany adverse impact of IEEPA\u2019s expansive emergency power on the more carefully gauged tariff and other statutes should be addressed to Congress.\u201d  Goldsmith, supra <\/em>note 52; see also <\/em>United States v. Yoshida Int\u2019l, Inc., 526 F.2d 560, 578 (C.C.P.A. 1975) (\u201cThe existence of limited authority under certain trade acts does not preclude the execution of other, broader authority under a national emergency powers act.\u201d).<\/p>\n\n\n\n

[53]<\/a> Learning Resources<\/em>, 2025 WL 1525376 at *9.<\/p>\n\n\n\n

[54]<\/a> Id. <\/em>(citing 50 U.S.C. \u00a7 1702(a)(1)(B).)).<\/p>\n\n\n\n

[55]<\/a> Id.<\/em><\/p>\n\n\n\n

[56]<\/a> See, e.g.<\/em>, Gonzales v. Raich, 545 U.S. 1, 26 (2005) (holding that prohibiting marijuana is a means of regulating commerce).<\/p>\n\n\n\n

[57]<\/a> Natelson, supra <\/em>note 15, at 306320 (emphasis added).<\/p>\n\n\n\n

[58]<\/a> 299 U.S. 304 (1936).<\/p>\n\n\n\n

[59]<\/a> Id.<\/em> at 315.<\/p>\n\n\n\n

[60]<\/a> Id.<\/em> at 320.<\/p>\n\n\n\n

[61]<\/a> Id.<\/em><\/p>\n\n\n\n

[62]<\/a> Marshall Field & Co. v. Clark, 143 U.S. 649, 691 (1892) (\u201c[I]n the judgment of the legislative branch of the government, it is often desirable, if not essential for the protection of the interests of our people against the unfriendly or discriminating regulations established by foreign governments, in the interest of their people, to invest the President with large discretion in matters arising out of the execution of statutes relating to trade and commerce with other nations.\u201d).<\/p>\n\n\n\n

[63]<\/a> Gundy v. United States, 588 U.S. 128, 159 (2019) (Gorsuch, J., dissenting).<\/p>\n\n\n\n

[64]<\/a> Id.<\/em> (referring to 11 U.S. (7 Cranch) 382 (1813)).<\/p>\n\n\n\n

[65]<\/a> Id.<\/em><\/p>\n\n\n\n

[66]<\/a> Id.; see also Marshall Field<\/em>, 143 U.S. at 691 (\u201cIf the decision in the case of The Brig Aurora<\/em> had never been rendered, the practical construction of the Constitution, as given by so many acts of Congress, and embracing almost the entire period of our national existence, should not be overruled, unless upon a conviction that such legislation was clearly incompatible with the supreme law of the land.\u201d).<\/p>\n\n\n\n

[67]<\/a> See <\/em>Curtiss-Wright<\/em>, 299 U.S. at 320 (\u201cIt is quite apparent that if, in the maintenance of our international relations, embarrassment \u2014 perhaps serious embarrassment \u2014 is to be avoided and success for our aims achieved, congressional legislation which is to be made effective through negotiation and inquiry within the international field must often accord to the President a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved. Moreover, he, not Congress, has the better opportunity of knowing the conditions which prevail in foreign countries, and especially is this true in time of war. He has his confidential sources of information. He has his agents in the form of diplomatic, consular and other officials.\u201d).<\/p>\n\n\n\n

[68]<\/a> See<\/em> Chad Squitieri, Who Determines Majorness?<\/em>, 44 Harv. J.L. & Pub. Pol\u2019y 403, 469 (2021).<\/p>\n\n\n\n

[69]<\/a> See<\/em> United States v. Yoshida Int\u2019l, Inc., 526 F.2d 560 (C.C.P.A. 1975).<\/p>\n\n\n\n

[70]<\/a> V.O.S. Selections, Inc. v. United States, No. 25-00066, 2025 WL 1514124, at *3 (Ct. Int\u2019l Trade May 28, 2025) (\u201cCongress drew much of the relevant language in IEEPA from TWEA, including language authorizing the President to \u2018regulate … importation … of … any property in which any foreign country or a national thereof has any interest by any person … subject to the jurisdiction of the United States ….\u2019\u201d); id.<\/em> at *12 (noting that \u201cthe words \u2018regulate … importation\u2019 . . . exist in identical form in IEEPA\u201d and the TWEA).<\/p>\n\n\n\n

[71]<\/a> Learning Resources<\/em>, 2025 WL 1525376, at *11 & n.10.<\/p>\n\n\n\n

[72]<\/a> Yoshida Int\u2019l<\/em>, 526 F.2d at 583.<\/p>\n\n\n\n

[73]<\/a> Id.<\/em> at 581.<\/p>\n\n\n\n

[74]<\/a> 50 U.S.C. \u00a7 4305(b)(1).<\/p>\n\n\n\n

[75]<\/a> Id. <\/em>at 570.<\/p>\n\n\n\n

[76]<\/a> 50 U.S.C. \u00a7 \u00a71701, 1702(a)(1).<\/p>\n\n\n\n

[77]<\/a> 50 U.S.C. \u00a7 1702(a)(1)(B) (referring to \u201cany property in which any foreign country or a national thereof has any interest by any person, or with respect to any property, subject to the jurisdiction of the United States\u201d).<\/p>\n\n\n\n

[78]<\/a> 50 U.S.C. \u00a7 1702(a)(1) (\u201c[T]he President may, under such regulations as he may prescribe, by means of instructions, licenses, or otherwise\u2026.\u201d); 50 U.S.C \u00a7 1702(a)(1)(B) (The President may \u201cinvestigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit . . . .\u201d).<\/p>\n\n\n\n

[79]<\/a> 50 U.S.C. \u00a7 1702(b)(1)-(2).<\/p>\n\n\n\n

[80]<\/a> 50 U.S.C. \u00a7 1702(b)(3).<\/p>\n\n\n\n

[81]<\/a> The above-mentioned limitations demonstrate why the District Court was mistaken to state that IEEPA does not \u201cinclude language setting limits on any potential tariff-setting power.\u201d Learning Resources<\/em>, 2025 WL 1525376 at *9.<\/p>\n\n\n\n

[82]<\/a> Learning Resources<\/em>, 2025 WL 1525376, at *8.<\/p>\n\n\n\n

[83]<\/a> Goldsmith, supra <\/em>note 52.<\/p>\n\n\n\n

[84]<\/a> Chad Squitieri, \u201cRecommend … Measures\u201d: A Textualist Reformulation of the Major Questions Doctrine, <\/em>75 Baylor L. Rev. 706, 728-29  (2023) (citing W. Virginia v. Env\u2019t Prot. Agency, 597 U.S. 697, 742 n.3 (2022) (Gorsuch, J., concurring).<\/p>\n\n\n\n

[85]<\/a> Id.<\/em> at 729-32 (citing Biden v. Nebraska, 143 S. Ct. 2355, 2376 (2023) (Barrett, J., concurring).<\/p>\n\n\n\n

[86]<\/a> Nebraska<\/em>, 143 S. Ct. at 2380 (Barrett, J., concurring).<\/p>\n\n\n\n

[87]<\/a> Id.<\/em><\/p>\n\n\n\n

[88]<\/a> See, e.g.<\/em>, West Virginia<\/em>, 597 U.S. at 724 (majority op.) (quoting Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014)); Squitieri, supra <\/em>note 84 at 727, 759.<\/p>\n\n\n\n

[89]<\/a> Yoshida Int\u2019l.<\/em>, 526 F.2d at 584.  The Learning Resources <\/em>court notes that, although President Nixon did not personally invoke the precursor statute (i.e.<\/em>, the TWEA) in his declaration, the statute was cited by the government in its Yoshida Int\u2019l. <\/em>briefing.  Learning Resources<\/em>, 2025 WL 1525376 at *11 n.10.  That distinction is legally irrelevant since the government lawyers are properly understood as exercising executive power on the President\u2019s behalf.<\/p>\n\n\n\n

[90]<\/a> Learning Resources, <\/em>2025 WL 1525376 at *10.<\/p>\n\n\n\n

[91]<\/a> V.O.S. Selections<\/em>, 2025 WL 1514124, at *12.<\/p>\n\n\n\n

[92]<\/a> The District Court in Learning Resources<\/em> criticized the Yoshida Int\u2019l. <\/em>court for engaging in statutory purposivism by speaking of congressional \u201cintent.\u201d  Learning Resources, <\/em>2025 WL 1525376 at *12.  As it explained, \u201c[t]hat is no longer how courts approach statutory interpretation.\u201d  Id<\/em>.  But a closer read of the court\u2019s opinion in Yoshida Int\u2019l.<\/em> reveals that the court\u2019s analysis is more consistent with modern textualism than Learning Resources <\/em>suggested.  Immediately after stating that the court\u2019s \u201cduty is to effectuate the intent of Congress,\u201d the Yoshida Int\u2019l. <\/em>court clarified that, \u201c[i]n so doing, we look first to the literal meaning of the words employed,\u201d and further clarified that \u201c[a]nalysis of the statute and its wording provides the threshold determination of what was delegated by the Congress.\u201d  Yoshida Int\u2019l<\/em>, 526 F.2d at 573.  Elsewhere the Yoshida Int\u2019l. <\/em>court explained that a \u201cstatute must be interpreted as a whole.\u201d  Id<\/em>. at 674.  Moreover, it is curious that Learning Resources <\/em>took issue with a reference to congressional intent given that it itself stated that \u201cother events confirm that Congress did not intend<\/em> for the language \u2018regulate … importation\u2019 to delegate the authority to impose tariffs,\u201d and elsewhere hypothesized about what \u201cCongress understood.\u201d  Learning Resources, <\/em>2025 WL 1525376 at *12 (emphasis added).<\/p>\n\n\n\n

[93]<\/a> See also Yoshida Int\u2019l.<\/em>, 526 F.2d at 572 (\u201cCongress, beginning as early as 1794 . . . has delegated the exercise of much of the power to regulate foreign commerce to the Executive.\u201d).<\/p>\n\n\n\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

The President\u2019s Authority to Impose Tariffs Chad Squitieri* Introduction The International Emergency Economic Powers Act (\u201cIEEPA\u201d)[1] empowers the President to \u201cregulate . . . importation.\u201d  One might think that this broad grant of statutory authority includes the power to regulate importation through a traditional and familiar means: tariffs.  But in Learning Resources v. Trump,[2] the District Court ruled otherwise. The District Court concluded that, to empower the President to impose tariffs, Congress must do more than empower […]<\/p>\n","protected":false},"author":147,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[72],"tags":[96,99,98,97],"class_list":["post-3294","post","type-post","status-publish","format-standard","hentry","category-per-curiam","tag-executive-power","tag-major-questions-doctrine","tag-non-delegation-doctrine","tag-tariffs"],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/peZSiL-R8","_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/posts\/3294","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/users\/147"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/comments?post=3294"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/posts\/3294\/revisions"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/media?parent=3294"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/categories?post=3294"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/tags?post=3294"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}