Comment by aliceryhl

Hmm, I read some of the decision, and now I'm not sure what to make of all of it.

When I came to the opinion from Jackson, J., I found it extremely compelling. He says this:

... But some of TWEA’s sections delegating this authority had lapsed, and “there [was] doubt as to the effectiveness of other sections.” Accordingly, Congress amended TWEA in 1941, adding the subsection that includes the “regulate ... importation” language on which the President relies today. The Reports explained Congress’s primary purpose for the 1941 amendment: shoring up the President’s ability to control foreign-owned property by maintaining and strengthening the “existing system of foreign property control (commonly known as freezing control).”

When Congress enacted IEEPA in 1977, limiting the circumstances under which the President could exercise his emergency authorities, it kept the “regulate ... importation” language from TWEA. The other two relevant pieces of legislative history—the Senate and House Reports that accompanied IEEPA—demonstrate that Congress’s intent regarding the scope of this statutory language remained the same. As the Senate Report explained, Congress’s sole objective for the “regulate ... importation” subsection was to grant the President the emergency authority “to control or freeze property transactions where a foreign interest is involved.” The House Report likewise described IEEPA as empowering the President to “regulate or freeze any property in which any foreign country or a national thereof has any interest.”

However, then I read Kavanaugh, J. who writes the following:

In 1971, President Nixon imposed 10 percent tariffs on almost all foreign imports. He levied the tariffs under IEEPA’s predecessor statute, the Trading with the Enemy Act (TWEA), which similarly authorized the President to “regulate ... importation.” The Nixon tariffs were upheld in court.

When IEEPA was enacted in 1977 in the wake of the Nixon and Ford tariffs and the Algonquin decision, Congress and the public plainly would have understood that the power to “regulate ... importation” included tariffs. If Congress wanted to exclude tariffs from IEEPA, it surely would not have enacted the same broad “regulate ... importation” language that had just been used to justify major American tariffs on foreign imports.

And I also find this compelling.

To add onto this, Roberts, C. J. says: IEEPA’s grant of authority to “regulate ... importation” falls short. IEEPA contains no reference to tariffs or duties. The Government points to no statute in which Congress used the word “regulate” to authorize taxation. And until now no President has read IEEPA to confer such power.

This seems directly contradictory to Kavanaugh, J.'s dissent! Kavanaugh, J. claims that Nixon used the word “regulate” to impose tarrifs. And apparently the word isn't just in some random other statute — Nixon did so from TWEA, the predecessor of IEEPA: when Congress enacted IEEPA in 1977 it kept the “regulate ... importation” language from TWEA. (from Jackson, J.) So the point that no President has read IEEPA to confer such power seems pretty weak, when Nixon apparently did so from TWEA.

I have no conclusion from this, but IMO both Jackson, J. and Kavanaugh, J. have pretty strong points in opposing directions.