Peter E. Harrell & Jennifer Hillman (Lawfare) had an interesting post yesterday, "Unexpected Questions in Learning Resources v. Trump," with the subtitle "Are IEEPA tariffs permitted as either a lesser form of an embargo or the equivalent of a license fee? In short: no." An excerpt:
The first unexpected issue that merited extensive discussion [at the oral argument in the tariff case] is one of the most intuitively appealing arguments in favor of the government's case: IEEPA clearly authorizes a president to embargo or block all trade, and presidents have used IEEPA with little challenge to impose trade embargoes against countries such as Iran and North Korea. If IEEPA authorizes embargoes, shouldn't the statute include the seemingly lesser power to tariff? Several justices were interested in whether, if IEEPA allowed embargoes but not tariffs, there would be—as Justice Brett Kavanaugh put it—an "odd donut hole in the statute." …
This argument has a certain intuitive appeal. However, it is wrong as a matter of both text and history. As Gutman said when he was pressed on the issue, the lack of a tariff power in IEEPA is "not a donut hole" but, rather, reflects that tariffs are "a different kind of pastry."
First, as a matter of history, Congress has often delegated an embargo power to the president without delegating a subsidiary tariff power. In 1794, for example, Congress delegated to President Washington a broad power to impose or remove an embargo on U.S. trade during the five months that Congress planned to be out of session. This law empowered the president to block or allow effectively all U.S. trade, but it did not empower him to change statutory tariff rates. When Congress initially passed IEEPA's predecessor statute, the Trading with the Enemy Act (TWEA), in late 1917—several months after America's entry into World War I—it both included an expansive prohibition on trade and financial transactions with enemy nationals and authorized the president to suspend certain prohibitions and/or issue licenses authorizing American companies to engage in transactions that would otherwise be prohibited. But TWEA did not authorize President Wilson to set new tariff rates on trade with Germany or any of its allies.
In recent decades, Congress has enacted additional sanctions and other embargoes on countries such as Cuba and Iran but did not empower the president to raise tariffs on those countries. In 2022, following Russia's invasion of Ukraine, President Biden used IEEPA to impose myriad sanctions on Russia, including to embargo imports of various products, such as Russian oil. But it was Congress that in April 2022 voted to repeal Russia's most-favored-nation trading status and to authorize the president to raise tariff rates on Russia. This suggests that neither Congress nor the president viewed IEEPA as providing the authority to raise tariffs without congressional action.
