The Patriot Post® · Supremes Get the Right Answer to the Wrong Question

The recent Supreme Court case, Learning Resources v. Trump, deciding that some of President Donald Trump’s tariffs as enacted are illegal, is instructive for understanding why it’s important to have a legal team that gets the big picture of the Constitution and what happens when it doesn’t.

The 170-page document issued by the Court, including summary, court opinion, concurring opinions, and dissents, gets very much into the weeds of the question presented, which is this: Does the International Emergency Economic Powers Act (IEEPA) authorize the president to impose tariffs? The Court’s answer is, “No.” But to arrive at this conclusion is a long, winding path we will not retrace here; a 30K-ft overview will do instead.

The majority opinion, delivered by Chief Justice John Roberts, is grounded in two judicial doctrines, the “Major Questions” doctrine and the “Nondelegation” doctrine. The first canon that so-called “major questions” — that is, issues of major weight that are normally in Congress’s lane but nonetheless delegable to other federal entities — cannot be delegated by Congress without express and explicit authorization to do so. The doctrine thus limits the other two federal branches’ attempts to assert powers that belong to Congress.

The second, the Nondelegation doctrine holds that, as a fundamental matter under the Constitution, some powers — Congress’s “core legislative powers” (i.e., those specifically listed in Article I of the Constitution) — cannot be delegated under any circumstances, even with congressional authorization. These two doctrines support a more fundamental tenet: the Separation of Powers doctrine, a doctrine whose basic purpose is to ensure each branch stays in its own lane so that governmental power is distributed and does not amass into a tyrannical nightmare.

Specifically, the majority held that the IEEPA does not explicitly authorize the president to impose tariffs (Strike 1 under the Major Questions doctrine), and that imposing tariffs is a core power of Congress (Strike 2 under Nondelegation). As Justice Roberts summarized, “These considerations apply with particular force where, as here, the purported delegation involves the core congressional power of the purse.” The majority opinion thus holds that not only did Congress not explicitly authorize the president to impose tariffs, but such an authorization would also be an impermissible delegation of Congress’s power.

In contrast, the dissent by Justice Brett Kavanaugh, joined by Justices Clarence Thomas and Samuel Alito, argues that the Court got the answer to the question fundamentally wrong.

Justice Kavanaugh’s dissent centered on the assertion that throughout U.S. history, the phrase “regulate importation” was understood to include the authority to impose duties on imports. As Justice Thomas adds in his dissent, “The meaning of that phrase was beyond doubt by the time that Congress enacted this statute, shortly after President [Richard] Nixon’s highly publicized duties on imports were upheld based on identical language.” Thus, Justice Kavanaugh’s argument is that the claim that “regulate importation” meant something different under IEEPA is simply wrong, particularly when Congress was well aware of its historical meaning when it passed the statute.

Justice Thomas’s dissent centered on the idea that the tariff power is delegable by Congress, further noting IEEPA’s consistency with “separation of powers as an original matter.” He then made the case that the Nondelegation doctrine does not apply to this issue because historically, imposing duties on imports was not a “core legislative power” (i.e., the power to make “substantive rules setting the conditions for deprivations of life, liberty, or property”) and that engaging in foreign commerce was a privilege, not a right — thus delegable by Congress. He detailed the issue’s expansive history, concluding that both the historical context and the continuous practice of delegating tariff power to the president show that from the Founding until now, this understanding underpinned all legislative dealings between Congress and the president regarding such delegation.

But let’s assume the Court got the answer to the question presented correct. Even with that assumption, the Court answered the wrong question. The question should have been, “Can the president impose tariffs as a basic instrument of foreign power and policy against other nations?” As constitutional scholar Alan Dershowitz highlighted:

If you argue that [imposing tariffs] is a fundraising activity by Congress, of course you’re going to lose! But if you argue that tariffs can be a weapon of foreign policy, a weapon of diplomacy, a weapon of preventing war, then it’s an Article II power of the president, and Congress has no power to limit it.

As alluded to in the opening paragraph, the problem was that Trump’s legal team allowed the question to be framed in a way that made the outcome virtually a foregone conclusion.

This case, unfortunately, is reminiscent of a 2006 SCOTUS case, eBay v. MercExchange, in which the Supreme Court similarly rendered a correct answer to the wrong question. In that case, the question presented was, in effect, whether the Patent Act requires a traditional analysis of injunctive relief before a court can impose an injunction for infringement. The nine-zip slam-dunk answer was, “Heck Yeah!” (in so many words). But the question should have been, should injunctions (i.e., legal bars to actions) be the rebuttable, presumptive relief for patent infringements? That is, shouldn’t the presumption be that the infringer should stop infringing, pending the outcome of a trial?

A clarifying analogy: the owner of a wallet doesn’t want a court to make someone who takes his wallet pay money damages for the privilege of possessing and using his personal property, and he shouldn’t have to wait for the result of a lengthy trial to get his wallet back. Rather, the wallet owner wants his wallet back — now. Thus, the court imposes an injunction (and a fine and/or jail time) on the wallet-taker. Similarly, a patent — that is, ownership of an idea that is embodied as a “widget” or process — is every bit as much personal property as a wallet. In eBay, while SCOTUS stated no more than that an injunctive relief analysis for patents is no different than any other injunction analysis, the relevant query above was never addressed.

As a result, eBay effectively signaled the death knell for patent enforcement by small inventors, who, rather than being able to procure a preliminary injunction pending the outcome of the infringement case — and thus having the leverage to bring the infringing party to the settlement table — must weather a $3-5 million suit in federal court. Only at the end of this gauntlet does the patent owner learn whether an injunction will be issued, if at all. By then, most small inventors’ assets have already been exhausted, the deep-pocketed infringer having “bled out” the patent owner in legal proceedings.

The constitutionally critical moral from both Learning Resources and eBay is that if the central issue is wrong-footed from the get-go by incorrectly framing (or allowing to be framed) the question the Supreme Court must answer, the outcome won’t just be unfortunate; it has the potential to fundamentally alter the landscape upon which the issue sits.