During oral argument in the tariff case, there was a recurring theme: if the Court agreed with the President that IEEPA grants this power, it would take a veto-proof majority in Congress to claw back that power.
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.
