In short, originalist research strongly supports the view that the president's art. II powers, whatever they might be with respect to diplomacy and national security, tell us nothing about the scope of his purely delegated power to impose tax imports. /END

Instead, founding-era presidents continued to defer to Congress in regulating foreign commerce, including in the imposition of embargoes, even when national security was directly implicated by US efforts to stay out of European wars and/or protect US shipping. 9/

In particular, while presidents claimed the power to set policy internationally & for the executive branch, they did not claim to be able to implement their policy choices as a matter of domestic law--the power that the govt seeks in VOS Selections/Oregon/Learning Resources. 8/

We walk through the drafting of the Constitution as well, but to keep a long thread short, the Founding Generation's practices in the early years reflected the British experience and the plain reading of the text of the Constitution. 7/

The Crown could not implement portions of international agreements, including peace treaties, that required trade and tariff concessions w/o parliamentary consent--a fact directly responsive to the govt's argument that POTUS's negotiations require interpreting his authorities broadly 6/

a few examples: The Framers wrote the Constitution against the backdrop of British law in which the tariff power belonged to Parliament. A chief complaint re: Charles I contributing to his ultimate execution was that he taxed, including specifically by imposing tariffs, w/o parliamentary consent. 5/

As the case moves to SCOTUS, a key issue will be what the justices make of the overlap between the president's general FA powers and Congress's FA powers. Our research suggests that the government's argument lacks a basis in originalist sources. Read the article for our whole analysis, but . . . 4/

As we explained in an earlier article, the Fed Cir. largely accepted these claims during litigation over the first Trump admin's tariffs under Section 232. But sitting en banc, it rejected the govt's foreign affairs framing in VOS Selections as applied to IEEPA. 3/ papers.ssrn.com/sol3/papers....

One of the gov't's central claims in the ongoing tariff litigation is that the president has independent Art. II power over foreign affairs, *and* that tariffs are a matter of foreign affairs, and thus the courts should interpret IEEPA differently than they would interpret other delegations. 2/

The foreign interest point would apply to the tariffs too. There is surely a class of potential plaintiffs who are US companies importing goods they own and that no foreign person has an interest in.

The CIT op leaned more heavily on the states’ brief for that reason, I think. I think there is also a little disjunction re MQD/ND with the SC-focused lawyers wanting to make that the main issue & lower court judges wanting to look at it as a statutory interpretation question w/ MQD as icing.

The result is less transparent, stable, and accountable than legislation or ordinary administrative law. We wrote the article before the election last year, but from EOs on tariffs, FCPA, & TikTok Trump 2.0 is accelerating the trend toward presidential regulation dramatically.

Thanks, I'll look forward to reading it! Ours is coming out in JREG too (which I think I forgot to mention but should have).

We will be revising the piece in light of the current administration’s action before publication later this year and welcome comments on it. /End.

We think President Trump’s expansive claims of foreign affairs powers over the domestic economy—clearly in evidence during the Biden and first Trump administrations but expanding in frequency and scope now—make plain that a paradigm shift is underway. 9/