Justice Thomas Questions Trump's Tariffs and the Trading with the Enemy Act

Delegation Doctrine in Foreign Context

• 🏛️ The non-delegation doctrine is argued to not apply with the same force in the foreign context as it does domestically.
• 📜 Citing Dames and Moore, the court has indicated that strict limitations on delegation in the internal context do not apply in the external context.
• 🌐 This is because the President has inherent authority to address foreign emergencies, and Congress can confer tools to expand this capacity.

Historical Basis for Tariff Powers

• 📜 The Trading with the Enemy Act of 1917 deliberately evoked the historical use of presidential tariff powers, especially in wartime.
• 🔑 The power to regulate importation, as codified in the Act, essentially codifies an inherent presidential power.
• 🌍 When this power was expanded to peacetime in 1933, the meaning of the language to "regulate importation" remained the same.
• 📈 This interpretation is reinforced by historical cases showing broad delegations of power to tariff and regulate foreign commerce, dating back to the founding era.