SCOTUS, tariffs, IEEPA, and the legislative veto: we're all trying to find the guy who did this
I'm going to write this up thoroughly on Friday on my Substack, here I'm just working out the outline of the argument.
UPDATE: The full argument is now available on my Substack.
The only real question in the tariff case is did Congress delegate to the president the authority to tariff when it enacted IEEPA?
The most galling thing about this question is that Congress never enacted IEPPA as it currently exists. In a real sense, the question simply cannot be answered, and certainly not in the affirmative.
IEEPA originally contained a legislative veto, allowing bare majorities in Congress to themselves cancel individual presidential uses of IEEPA. Thus, the delegation of authority came with a very strong mechanism of control.
The Court struck down the legislative veto in 1983, but severed it from IEEPA, meaning that IEEPA remained law without the mechanism of control Congress intended.
Absent the legislative veto, presidential uses of IEEPA can only be overridden by a 2/3 supermajority in Congress, since it has to be done by joint resolution, which the president can (and will) veto.
Majorities in both chambers---but not supermajorities---have voted against the IEEPA tariffs (albeit with separate legislation). Prior to the striking-down of the legislative veto, the tariffs would almost certainly be gone.
Instead of Congress policing its own delegations of power via the legislative veto instance by instance, the Court is now continually struggling to set general standards to police executive aggrandizement beyond the intention of Congress in cases of delegated authority.
That's dumb---and suboptimal---in like seven different ways.
The legislative veto should be restored. It's a close call, constitutionally, and some forms of it were, IMO, definitely unconstitutional. But the strongest form of it---both chambers voting to overturn an implementation of a wholly Article I delegated power---seems like it should be on the constitutional side of the line. At the very least, it solves a whole fuck-ton of practical problems.
Absent that, people should stop saying that it still de facto exists. That conflates two very different things, annual discretionary appropriations and permanent regulatory authority. In the former, de facto legislative vetoes work well; in the latter, they do not.
Congress isn't blameless here, either. They botched the restructuring of the laws in the wake of the strikedown of the legislative veto. Absent the return of the legislative veto, Congress should put strict time limits on presidential authorities that were previously subject to the veto, and only allow the authority to continue beyond these limits with affirmative congressional support.
This is generally good practice for Congress, and most grants of presidential authority should be sunset, such that Congress can renew them by majority vote and let them expire via inaction, rather than having them continue in perpetuity absent supermajority coalitions to repeal them.