Neil Gorsuch Questions Lawyer on Oversight of Revenue-Raising Tariff Programs

Statutory Language and Revenue Raising

• 💡 Justice Gorsuch began by focusing on the bare statutory language of "regulate importation," questioning if it inherently includes the imposition of a fee, especially if that fee is revenue-raising.
• 🎯 The attorney argued that if a fee is purely for revenue raising, it is disputed whether "regulate importation" would permit it.

Hypothetical Scenarios on Fees

• ❓ Gorsuch presented a hypothetical about a statute allowing the National Park Service to "regulate admission" to a crowded park, asking if this would permit imposing a fee.
• ⚖️ The attorney distinguished between fees that capture the cost of government services (like park admission) and those that are purely revenue-raising, suggesting the former might be permissible while the latter is not.
• ⚠️ When pressed on whether "regulate admission" would include imposing a fee even if it goes beyond cost recovery, the attorney conceded it was a "tough hypothetical" and that such a scenario might not be permitted, particularly in the context of tariffs and trade.

Tariffs, Revenue, and Congressional Intent

• 💰 The discussion turned to whether all tariffs are revenue-raising, with Gorsuch posing a scenario where a tariff is imposed but never collected due to a subsequent agreement.
• 📊 The attorney maintained that such a tariff is revenue raising on its face, even if no revenue is ultimately collected.
• 🏛️ The attorney argued against the idea that Congress would grant the power to impose revenue-raising tariffs by implication through the word "regulate," especially when specific statutes for tariffs and taxes exist.
• 🔍 The attorney referenced the difficulty in defining what constitutes a tax or revenue-raising measure, citing a recent Supreme Court case (FCC v. Consumer Research) and a dissent Gorsuch joined, emphasizing that taxation is special and different.