My Hoover Institution colleague Philip Zelikow was kind enough to pass this along; he is an emeritus history professor at the University of Virginia, but also a lawyer:
As a lawyer and historian who also served in five administrations of both parties, including much involvement with wars and emergencies, it was interesting to read the clashing opinions of the Federal Circuit decision in the tariffs case, now before the Court. That clash was recently rehashed in the Executive Functions substack by Jack Goldsmith and Bob Bauer. I am on an amicus brief in that case, supporting the view that the presidential tariffs are unconstitutional. Like Goldsmith and Bauer, both sides in the appellate court pick at pieces of the history here, but miss much of the broader context. Understanding that history of how Congress has handled trade makes the case much clearer.
With tariffs, the need to balance domestic concerns and foreign affairs flexibility was already apparent when the Constitution was written and the tariff power was explicitly assigned to Congress. Also, the debate has missed the deep way in which the President's actions in April 2025 junked the entire tariff approach that both pro-tariff and anti-tariff sides in America had adopted more than a hundred years ago, an approach founded on the principles of reciprocity, equal treatment, and non-discrimination.
Understood in its historical context, IEEPA makes sense, especially in the context of the historic Trade Act of 1974 that complemented and substantially replaced the previous landmark Trade Expansion Act of 1962. Congress had covered all the bases, including concerns of balance of payments or national security worries about sectoral protection.
Once the history is understood, it seems obvious that Congress, in passing IEEPA in 1977, did not mean to empower a president to disregard it all, something no president—including Nixon in 1971—had done. This point carries over to those concerned about flexibility in foreign affairs, since—as in 1787—tariffs set at executive whim had the foreseeable danger, even more present today, of introducing impractical chaos into foreign affairs and the terms of trade even with America's friends.
Originalism
