re: Robert’s insist that tariffs are a tax on the American people, and a tax needs to come

quote:

---

But if a tariff is considered a tax, then why do they even exist?

---

Yes.

Specifically authorized by Congress.

quote:

---

And who would actually have the authority to use the tariff, if not the President?

---

Theoretically Congress could enact tariffs that worked automatically.

But the power to create a tariff comes only from Congress, and any delegation of that power to the Executive must be pretty specific.

Also, the "tax" issue is getting into the weeds. You can come to the same conclusion about exceeding statutory authority without the Constitutional component, by relying on the Major Question Doctrine. That's what was used against Biden in his Student Loan regulation and would work here, too.

Explained on page 12

quote:

---

Look at this summary of Biden v. Nebraska and see how simiarly it tracks this IEEPA-tariff case.

quote:

---

Vast Economic and Political Significance: The Court determined that a program canceling roughly $430 billion in debt for 43 million borrowers was an issue of "vast 'economic and political significance'". The economic impact was found to be nearly ten times greater than the $50 billion threshold considered significant in a prior case.

Lack of Clear Congressional Authorization: The administration based its program on the Higher Education Relief Opportunities for Students (HEROES) Act of 2003, which authorizes the Secretary of Education to "waive or modify" federal student aid loan program terms during a national emergency. The Court, in a 6-3 decision, found that the power to "waive or modify" did not grant the authority to create an entirely new, comprehensive loan cancellation program that would fundamentally rewrite the existing statute.

Past Agency Practice: The Court noted that previous uses of the HEROES Act authority were "extremely modest and narrow in scope," primarily involving minor, procedural modifications and payment suspensions during the COVID-19 pandemic. This lack of past practice for such a large-scale program further indicated that Congress had not intended to delegate this power through the general "waive or modify" language.

Separation of Powers: The Court emphasized that decisions of such magnitude must rest with Congress itself, the representative body entrusted with the power of the purse, rather than the executive branch or an administrative agency.

---

Vast Economic and Political Significance? Check.

Lack of Clear Congressional Authorization? Check. Even you admit you're trying to Pidgeon-hole these tariffs into broad language, not "clear" authorization.

Past Agency Practice? Check (no other admin has attempted to use the IEEPA to create tariffs)

Separation of Powers? Check. Enacting tariffs is the role of Congress, not the President.

---

quote:

---

So Congress has always been the body administering tariffs

---

No. That wasn't what I said. They are the body that authorizes or creates tariffs.

The executive can only administer what it is given by Congress. It cannot step on the toes of Congress and create things on its own (for the purposes of this thread. There are some very narrow areas in the Constitution that are in no way applicable here for the executive can act on its own).

The executive is only given authority that Congress approves of. It all starts with Congress and the executive is bound to the text congress authors

quote:

---

A tariff is either a "tax" or it isn't.

---

The tariffs can be struck down without relying on that argument.

quote:

---

No one is arguing that the statute is unconstitutional. The argument is that the President's reading of the statute makes the statute unconstitutional therefore that particular reading is wrong.

---

I misunderstood your point on this earlier and I understand it now, after your responses to him, just FYI.

quote:

---

Also, the "tax" issue is getting into the weeds

---

The tax issues is relevant to what the power to regulate encompasses.

It gets at what Bessent is arguing when he makes the point that the Plaintiff's lawyers argue that the IEEPA gives the President the power to embargo but not the power to issue a 1% tariff. Which on its face does appear ridiculous.

Which seems to be a strong reason the Court would not rely on the Major Question Doctrine.

quote:

---

The tax issues is relevant to what the power to regulate encompasses.

---

But without specifically defining what "regulate" means, then what is the Executive supposed to think?

quote:

---

You get what is happening now

---

Thanks, Jim. I appreciate the discussion.

quote:

---

SCOTUS would be negating the vote of the people if they negate tariffs.

---

Why would this matter?

Their job isn't to monitor "the vote of the people"

quote:

---

SCOTUS does not have the power to negate an election

---

quote:

---

So if this gets struck down do they clowns expect the funds to be returned?

What a total mess and it will be the end of this country

---

Indeed. What a mess.

Those messes were prevented by nationwide injunctions.

But this court largely abolished those.

Instead going forward presidents will get 12-18 months to break Humpty Dumpty and leave it to the next guy to it it back together if the court eventually says you can’t do that.

quote:

---

Due to the limitations on the executive.

---

I'm keenly aware of the roles of the branches, SFP. None of that is at question. However decades ago, Congress ceded rights to tariff to the Executive. Full Stop!

---



Whatever limitations the EB might have, are mitigated in this instance by the fact that Congress ceded rights to tariff as it did. Further, the EB has wide discretion to fine, financially penalize, or sue. So tariffs are not the issue, and revenue generation is not the issue either. Nomenclature is. Are we discussing fines or tax policy?

Retaliatory tariffs are revenue generating penalties. Retaliation is, by definition, punitive. Are we now saying retaliatory punishment is sound basis for taxation? Is our progressive tax system not really based on a "fair share" premise at all, but rather on punishment of success? Because, if we go there with one devil, it will be holding the other's hand.

No, retaliatory punishment is not sound basis for taxation.
It is basis for a fine or penalty.
Add the fact the tariffs constitute revenue collected outside the Federal Tax apparatus, and the case for "taxes" dissolves.

Yet John Roberts has the unmitigated audacity, after the Obamacare lie, to do the same thing again --- Categorize a FINE as a TAX.