Neil Gorsuch Questions Trump DOJ Lawyer on Tariff Legality and Executive Power

Executive Authority and Foreign Affairs

• 🎯 Justice Gorsuch questioned the DOJ lawyer on whether the President's inherent powers in foreign affairs allow for broad delegation of authority, specifically regarding tariffs.
• 💡 The lawyer argued that while Congress can delegate powers, the President's inherent authority in foreign affairs means non-delegation and major questions doctrines apply with less force.
• ⚠️ Gorsuch pressed on the potential for Congress to completely abdicate its responsibilities to the President in areas like foreign commerce or declaring war, questioning the limits of this inherent authority.

Non-Delegation and Major Questions Doctrines

• ⚖️ The discussion revolved around the "major questions doctrine" and "non-delegation principle," and how they apply when Congress delegates significant power to the President.
• ⚡ Gorsuch suggested that the DOJ's position implied Congress could hand off all responsibility for foreign commerce, which the lawyer conceded would be an "abdication" rather than a delegation.
• 📌 The lawyer eventually acknowledged that there is a "very limited" application of the non-delegation principle and major questions doctrine in foreign affairs, retreating from a stronger initial position.

Statute vs. Constitutional Theory

• 🔍 Gorsuch sought to understand the lawyer's constitutional theory beyond the specific statute, asking what prohibits Congress from abdicating all responsibility to the President.
• 🔑 The lawyer distinguished between a "carefully crafted compromise" statute and a "wholesale application" of power, suggesting the latter would be different.

Tariffs in Peace Time and Revenue Raising

• 🚫 The DOJ lawyer stated that the President does not have inherent authority over tariffs in peace time, but Congress can delegate this power.
• 📊 Revenue-raising tariffs were distinguished from regulatory tariffs; the former were argued to not raise the same degree of foreign affairs issues as the latter, which aim to influence foreign powers' behavior.

Congressional Power to Reclaim Authority

• 🔄 Gorsuch raised concerns about Congress's ability to reclaim delegated powers, noting that a president would likely veto such legislation, creating a "one-way ratchet" of executive power accumulation.
• ✅ The lawyer countered by citing the termination of the COVID emergency as an example of Congress successfully reclaiming powers, demonstrating that political consensus can override executive authority.