What About Nixon?

In Learning Resources, Chief Justice Roberts found that President Trump’s tariffs lacked sufficient precedent. As a result, under the major questions doctrine, this novel exercise of power based on an old statute was unlawful. Yet, there was one President who did something similar, that the Chief Justice simply did not want to talk about. Of course, I speak of Richard Nixon.

Roberts acknowledged that President Nixon relied on the Trading with the Enemies Act (TWEA) to impose tariffs. And he further acknowledged that the Court of Customs and Patent Appeals (the predecessor of the Federal Circuit) upheld those tariffs. Yet, the Court found that Nixon’s actions were not enough to establish a precedent.

Here, Nixon is relegated to a footnote:

It is also telling that in IEEPA’s “half century of existence,” no President has invoked the statute to impose any tariffs—let alone tariffs of this magnitude and scope. FN2

FN2: Indeed, even before IEEPA was enacted, only one President [Nixon] relied on its predecessor, the Trading with the Enemy Act (TWEA), to impose tariffs—and then only as a post hoc defense to a legal challenge.; United States v. Yoshida Int’l, Inc.(CCPA 1975). Those tariffs were also of limited amount, duration, and scope.

Roberts also tries to distinguish the Nixon tariffs from the Trump tariffs.

Finding no support in the statute the President invoked, the Government turns to one he did not: IEEPA’s predecessor, TWEA. In 1975, the Court of Customs and Patent Appeals held that the authority to “regulate … importation” in TWEA authorized President Nixon to impose limited tariffs. United States v. Yoshida Int’l, Inc.. When Congress enacted IEEPA two years later, the Government contends, it conveyed that same authority (except without the limits).

This argument cannot bear the weight the Government places on it. While this Court sometimes assumes that Congress incorporates judicial definitions into legislation, we do so “only when [the] term’s meaning was ‘well-settled'” before the adoption. A single, expressly limited opinion from a specialized intermediate appellate court does not clear that hurdle. The tariff authority asserted by President Nixon, moreover, was “far removed” from TWEA’s “original purposes” of sanctioning foreign belligerents. We are therefore skeptical that Congress enacted IEEPA with an eye toward granting that novel power.

Justice Gorsuch likewise thinks that the Nixon practice does not count for much:

And, once more, it points to President Nixon’s invocation of TWEA to support his 1971 tariffs during lower court proceedings . . .. Whatever one makes of this history, it hardly reveals the kind of contemporaneous and consistent executive interpretation that might advance the dissent’s cause. To the contrary, the fact that no President until now has invoked IEEPA to impose a duty—even one percent on one product from one country—is telling.

By contrast, Justice Kavanaugh mention Nixon nearly thirty times. Kavanaugh suggests the Court was trying to “dodge” Nixon tariffs:

The Court tries to dodge the force of the Nixon tariffs by observing that one appeals court’s interpretation of “regulate … importation” to uphold President Nixon’s tariffs does not suffice to describe that interpretation as “well-settled” when IEEPA was enacted in 1977. Fair enough. But that is not the right question. The question is what Members of Congress and the public would have understood “regulate … importation” to mean when Congress enacted IEEPA in 1977. Given the significant and well-known Nixon tariffs, it is entirely implausible to think that Congress’s 1977 re-enactment of the phrase “regulate … importation” in IEEPA was somehow meant or understood to exclude tariffs. 12

FN12: THE CHIEF JUSTICE’s opinion also tries to dismiss President Nixon’s tariffs as being of “limited amount, duration, and scope.” That claim appears incorrect on all three points, as Judge Taranto carefully explained in his Federal Circuit opinion. President Nixon imposed 10 percent tariffs on virtually all imports from every country in the world for an unspecified duration.

What is the Court’s aversion to President Nixon? Is it simply the fact that one President is not enough to establish a “longstanding” practice, as that term was used in Noel Canning? Or is it the fact that President Nixon was not a good President that the Court would rely upon?

I’ve written that Trump is refighting the war that Congress and the Burger Court waged against President Nixon. I think the Chief Justice’s blithe dismissal of the Nixon precedent reflects those battle lines.