An interesting exchange occurred during last Wednesday's oral argument in the tariff cases [transcript available here] that caused me to scratch my head a little.
Background: As I'm sure most of you know, the relevant statute, the International Emergency Economic Powers Act ("IEEPA"), provides that if the President "declares a national emergency with respect to … any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States," the President may "regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, . . . or transactions involving, any property in which any foreign country or a national thereof has any interest."
The bold-faced language is where all the action is – at least, that's pretty much all the Court wanted to talk about during oral argument: Is the imposition of a tariff included within the power to "regulate importation"?[1] The Administration says it has long been so understood; indeed, at one point the Solicitor General said that "the power to impose tariffs is a core application of the power to regulate foreign commerce, which is what the phrase 'regulate importation' in IEEPA naturally evokes." The challengers, on the other hand, pointed out that Congress has never – not once – used the phrase "regulate" to "impose taxes or for revenue-raising."
