Supreme Court asks the Solicitor General whether 'regulate' means 'tax anything forever.'

The case is Learning Resources, Inc. v. Trump. The question is whether the International Emergency Economic Powers Act, a 1977 sanctions statute that has been on the books for forty-eight years and has never once been used to impose tariffs, in fact authorizes the President of the United States to impose tariffs on any product, of any kind, from any country, in any amount, for any length of time, by way of declaring an “emergency.”

The Solicitor General argued, on behalf of the administration, that yes, it does. Chief Justice Roberts asked, on the record, whether anyone had ever before read the statute that way. The Solicitor General conceded that no one had. The Chief Justice asked whether the statute, on its face, says anything about tariffs. The Solicitor General conceded that it does not.

It is the rare oral argument that ends without a Chief Justice having to ask the same question twice.

Justice Kagan asked, with surgical economy, whether the administration believed there was any limit at all to the tariffs the statute would authorize. The Solicitor General, after a pause, said he did not see one.

There is a phrase in administrative law called the major questions doctrine, by which courts decline to read sweeping powers into statutes that do not, on their face, contain those powers. The doctrine has been used in the past to constrain Democratic regulatory ambitions on student debt and on greenhouse gases. It seemed, on Wednesday, to apply to whatever this is.

A decision is expected by next summer. The President said on the courthouse steps that if he loses, he will impose a 10% tariff anyway, by other means. The Court was not asked about that part.

Calmly documenting the decline.