Return to Transcripts main page

The Situation Room

Supreme Court Hears Oral Arguments on Trump Tariffs; Trump Admin Faces Deep Skepticism in Early Tariff Arguments. Aired 10:30-11a ET

Aired November 05, 2025 - 10:30   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

[10:30:00]

D. JOHN SAUER, U.S. SOLICITOR GENERAL: I'm not sure what other statutes use regulate and tax together, but this statute has a specific historical pedigree going back to its enactment during World War I in 1917, where the phrase regulate importation is evoking an inherent power to tariff that became established in the 19th century with in cases like, you know, Hamilton against Dillon and so forth, and that history is I think set forth in Professor Bamzai's amicus briefs.

CHIEF JUSTICE JOHN ROBERTS, U.S. SUPREME COURT: Counsel, some time ago you dismissed the applicability of the major questions doctrine, and I want you to explain that a little bit more. I mean, it seems that it might be directly applicable. You have a claim source, an IEEPA, that had never before been used to justify tariffs. No one has argued that it does until this particular case.

Congress uses tariffs and other provisions, but not here, and yet and correct me on this if I'm not right about it, the justification is being used for a power to impose tariffs on any product from any country for -- in any amount for any length of time. That seems like, I'm not suggesting it's not there, but it does seem like that's major authority, and the basis for the claim seems to be a misfit. So, why doesn't it apply again?

SAUER: Well, we agree that it's a major power, but it's in the context of a statute that is explicitly conferring major powers. That the point of the statute is to confer major powers to address major questions, which are emergencies. So, it'd be unusual to say, look at the statute and say, we're not going to find a major power here.

ROBERTS: Well, but the exercise of the power is to impose tariffs, right? And the statute doesn't use the word tariffs.

SAUER: But it uses the word regular importation, and historically, a core central application of that, a big piece of that, has always been to tariff. If you had asked the founders, how do you regulate imports? They'd say, of course we tariff. That's what we do. So, it'd be very unusual to say, we're giving you power to regulate importation and say, but you can't impose regulatory tariffs, that'd be almost a contradiction. And all the historical sources we cite in our brief, you know, relate to that particular historical pedigree. And as I was referring to earlier, there's a specific pedigree of regulated importation here in the specific context of the presidents Polk and Lincoln and President McKinley asserting the authority to impose tariffs in wartime that was then codified in Tuiya and then recodified for peacetime in Tuiya in 1933 and then carried over into IEEPA. So, there's that as well.

But more importantly, if you look at the sort of triggering conditions that members of this court have identified for the major questions doctrine, there's a series of them. And we think they really do -- all of them don't apply here. For example, the notion that the power is unheralded. You referred to the fact that IEEPA has never been asserted to invoke tariffs. But of course, the immediate predecessor statute, the tariffs that President Nixon imposed on that were upheld under this very language.

So, this, I would say this is -- and it was recodified in IEEPA two years later. So, this is kind of the opposite of unheralded power. It's also heralded because there's this long-standing delegation, a tradition of very broad delegations of the foreign commerce power going back to the founding, going back to the --

ROBERTS: Foreign commerce part. But I mean -- and I think this is a question for the other side as well. It's two facing. Yes, of course, tariffs and dealings with foreign powers. But the vehicle is imposition of taxes on Americans. And that has always been the core power of Congress. So, to have the president's foreign affairs power trump that basic power for Congress seems to me to kind of at least neutralize between the two powers, the executive power and the legislative power.

SAUER: Let me say two things in response to that. First, the notion that these are -- the taxes are all borne by Americans and are not borne by foreign producers who are -- whose goods are imported this is empirically -- that's not -- there's no basis for that in the record. It's actually a mixed --

ROBERTS: Well, who pays the tariffs? If a tariff is imposed on automobiles, who pays them?

SAUER: There's a -- typically there'd be a -- regardless of who the importer of record is, there'd be a contract that would go along the sort of line of transfer that would allocate the tariff. And there'd be different, you know, sometimes the foreign producer would pay them, sometimes the importer would bear the cost. The importer could be an American, could be a foreign company. A lot of times it's a wholly owned American subsidiary of a foreign corporation. So, it gets allocated. The empirical estimates range from like 30 percent to 80 percent of like how much is borne by Americans.

ROBERTS: I mean, it's been suggested that the tariffs are responsible for significant reduction in our deficit. I would say that's raising revenue domestically.

SAUER: There certainly is an incidental and collateral effect of the tariffs that they do raise revenue, but it's very important that they are regulatory tariffs, not revenue raising tariffs. And the way you can see this, I think, if you look at this policy, this policy is by far the most effective if nobody ever pays the tariffs. And I say two policies, right?

So, if you look at the trade deficit emergency, if nobody ever pays the tariffs, and instead Americans direct their consumption towards American producers and stimulate the rebuilding of our hollowed-out manufacturing base, then the policy is by far the most effective --

[10:35:00]

JUSTICE SONIA SOTOMAYOR, U.S. SUPREME COURT: So, why not do what the statute permits, bar importation of products altogether? That would be the most effective way to do it.

SAUER: What -- the question --

SOTOMAYOR: You follow the statute. The statute says the president can do that. What it doesn't say is the president can raise revenue.

SAUER: What it says is he can regulate importation and go back hundreds of years the way you regulated the tariffs.

SOTOMAYOR: Regulated by quotas, pausing it, subjecting some countries and not others to importation bans. There's a lot of verbs, but none of them include generating revenue as a side effect or directly.

SAUER: Let me address that verb point, if I may. Because think about the canonical example, a statute that refers to a list of swords, knives, daggers, dirks, and pikes. There, you look at that list of things and you say, aha, those are all weapons, therefore a pike is a spear, not a fish in that particular context.

Now, look at this list of verbs, block, prohibit, compel, direct, and so forth. You don't look at that naturally as an ordinary reader and say, oh, look, they're all not revenue raising. What you say is they're all very broad, powerful, you know, actions of the executive.

JUSTICE KETANJI BROWN JACKSON, U.S. SUPREME COURT: General, look, the verbs that are in the statute are actually doing something. I mean, they're in the statute for a reason. And as I understand it, Congress actually explained to us in its Senate report and House report, when it enacted the 1941 amendments to TWEA, what it was doing.

It said that what we are doing is authorizing the president, in the Senate report, quote, "to control or freeze property transactions where a foreign interest is involved." There's similar language about controlling, freezing control in the House report. So, I appreciate that generally you can look at these words and you can imagine that they mean certain things, but here we have evidence that Congress was actually trying to do a particular thing with respect to the authority that it was presenting to the president. And that thing was not raising revenue.

SAUER: I think that what Congress -- the powers that Congress was conferring on the president are best understood through the plain text of the statutes, which includes regulating --

JACKSON: I know, but some of us care about the legislative history. And so, the plain text of the statute has certain verbs in it. It also has regulate commerce, as you say. And when I look at the legislative history, it appears as though Congress was trying to give the president the authority to, quote, "control or freeze property transactions where a foreign interest is involved."

And in the TWEA context, that makes perfect sense because we're talking about a wartime dynamic. And what is happening is the president needs the authority to prevent trading with the enemy in the midst of a war. And that seems to be the focus of this statute.

So, I guess I'm concerned about just sort of taking a particular word here and there and saying that the general view of it might include raising revenue when, in fact, it looks as though the aim of this was really to give the president a certain kind of authority to freeze the assets of the enemy.

SAUER: And let me say two things in response to that. First, as the notion that this is a revenue-raising tactic or power, it is not. We are asserting a regulatory power. It's a delegation of power to regulate foreign commerce. The way to control imports traditionally has been to tariff them. They say, well, you can impose quotas. Well, quotas are essentially economically -- you know, economically equivalent to tariffs. So, the question is, why would you be able to quota under-regulate but not tariff under-regulate when the tariffs are themselves regulatory?

And let me turn back to the question I was -- the response I was giving to Justice --

JACKSON: But could the answer be that in other places where Congress wants that particular form of regulation to be used, they say impose duties, they say you can tax, Mr. President? Here, they don't say that.

SAUER: I'd say two things in response to that. That's the very argument that this Court rejected in Algonquin, that the fact that these other specific statutes, you say it a certain way, you have to do it this way.

JACKSON: If we disagree with you that Algonquin is a similar context, do you have another statute or another circumstance?

SAUER: And again, not to cite Algonquin again, but obviously, we discussed the phrase adjust imports. And they said, yes, the natural way to do that is to tariff them. And they specifically said it makes no sense at all to authorize quotas, which was conceded that that statute did authorize, but not tariffs, because those are equivalent.

JUSTICE AMY CONEY BARRETT, U.S. SUPREME COURT: But it said adjust by any means necessary, which kind of beefs up the adjust. And also -- and this is actually, I just don't know the answer to this question, so maybe you can help, and maybe the other side can help as well. Algonquin was very careful to always call it a license and a licensing fee. And in the oral argument that came up, too, the distinction between a tariff and a licensing fee. And I can understand how in some contexts it would be very difficult. You would press on it, and you would say, well, if this license fee is raising revenue, then it actually functions as a tariff.

[10:40:00]

But what is the significance of that? Because in IEEPA, it also says -- it refers particularly to licenses. It says you can license. And license would be a way of giving permission. That's actually the language also used in the Civil War one, and what is it?

SAUER: Hamilton against Dillon. Exactly. Yes, it does.

BARRETT: It was a license. It was a license fee. And that's a way to grant permission that you wouldn't otherwise have to trade and import and let it through. So, tell me what the distinction is between licenses and fees, and if it matters.

SAUER: It's hard for me to see one, because what President Lincoln said is, OK, we're going to allow imports from hostile foreign powers, basically rebellious Confederate states, of cotton subject to a license, but you've got to pay four cents a pound of cotton when you do it. That's the condition. And that is so nearly equivalent to a tariff that says you can bring these goods into our country, but you've got to pay an, you know, ad valorem assessment on it.

And so -- and of course, they have in their briefs conceded that quotas apply, that licensing may apply. There is the language in the beginning of 1701 that talks about instruments, you know, or other methods, instruments, licenses --

BARRETT: But if that was true, why couldn't you just call this a license? And it's also true that in the cotton example, the court said the exaction itself was not properly a tax, but a bonus required as a conditioned precedent for engaging in the trade. So, it seems like it was a little squirrely about how it was proceeding. And if there really is no distinction, why couldn't you just call it a license here?

SAUER: Very briefly, the other two cases, you know, the Polk case and then the President McKinley case talk about duties. So, I see the equivalence there. Mr. Chief Justice.

ROBERTS: Thank you, counsel. Justice Thomas, anything further?

JUSTICE CLARENCE THOMAS, U.S. SUPREME COURT: The other side is going to argue -- make an argue on delegation, I believe. Would you anticipate that and give us your understanding of the delegation argument?

SAUER: Yes, Justice Thomas, I'd say a couple of things in response to that. First of all, this court has stated that the non-delegation doctrine does not apply with anything like the same force in -- as it does in the domestic context, in the foreign context. And that, again, to cite Dames and Moore again, Dames and Moore cites Youngstown and Youngstown in footnote two of Justice Jackson's opinion. He goes into detail about this. He addresses Curtiss-Wright. He says there's a lot of broad dicta in Curtiss-Wright, but the holding of Curtiss-Wright, the ratio decidendi, is that the domestic non-delegation doctrine does not apply with the same force in the foreign context.

And then he -- and he uses that phrase, does not apply. He says the strict limitations on delegation that apply, you know, in the internal context do not apply in the external context. And so, we rely on that line of cases. And for the reasons I talked about earlier, we're talking about a situation where the president has his own inherent authority to address foreign arising emergencies, and Congress is conferring tools on him that expand his ability, his capacity to do so. We are in the area of Youngstown zone one.

THOMAS: A few times you have alluded to the history as being important in interpreting the statute, and also that this language comes from the Trading with the Enemies Act, and that has its own pedigree. Could you just sketch out this direct line that you were alluding to as a basis for interpreting the current emergency statute as you would like it interpreted?

SAUER: Yes, Justice Thomas, and turning back to the response I was giving to Justice Barrett earlier, there is, I think it's very well set out in Professor Bamzai's amicus brief, there is this history of presidents using a tariffing power or a tariff equivalent power, very, very close to tariffing power, in wartime to tariff trading with enemies. And that is when the Trading with the Enemy Act was enacted in 1917, it was deliberately evoking that. And when it brings in the power to regulate importation, it's essentially codifying for an inherent power the president's already recognized to have.

And then in 1933, when that power is expanded to an area where he wouldn't inherently have it, the peacetime context, that codification, the meaning of that remains the same. The regulate importation language that's brought in from TWEA and then ultimately to IEEPA in 1977 is carrying with it that connotation, and that's reinforced by all the cases we've cited in our brief where there's been extremely broad delegations of the power to tariff specifically and the power to regulate foreign commerce more generally going back to the time of the founding, which ties to your question about non-delegation.

ROBERTS: Justice Alito.

JUSTICE SAMUEL ALITO, U.S. SUPREME COURT: The court of the CCPA said several said things in Yoshida that are helpful to your position, but it also said some other things. It said that future surcharges, quote, "must, of course, comply with section 122 of the Trade Act of 1974," and it said that the Trading with the Enemy Act did not authorize the president to, quote, "fix rates of duty at will without regard to statutory rates prescribed by Congress."

[10:45:00]

So, do you think that Congress, to the extent Congress had that decision in mind and relied on it, do you think it also relied on those statements in the opinion? SAUER: Not in the same way, because those statements are read into other provisions of TWEA that Congress did not enact in IEEPA. They may still be there in TWEA, but those are limitations that it wouldn't make sense to do. And I think the significance of Yoshida is at a higher level. Keep in mind that their principal position is no tariffs at all. Regulated importation just doesn't carry a connotation of the power to tariff, and we say we've got historical sources going back to Gibbons against Ogden that say the opposite, but more fundamentally, everyone knew that at the time IEEPA was enacted that regulated importation had just very visibly and very prominently been upheld to include a sweeping global tariff.

ALITO: Thank you.

ROBERTS: Mrs. Sotomayor.

SOTOMAYOR: I'd like to go back to Justice Barrett's question on the word license as used in IEEPA. It's not used as a verb. It's used as a noun. By -- the president may, under such regulations as he may prescribe, by means of instructions, licenses, or otherwise, then do what the verbs permit him to do. By license, he can nullify, void, prevent, or prohibit any acquisition, etc.

So, license is not being used as a verb that through licensing he can raise revenue. He can only use licenses to accomplish the verbs. So, I don't understand how we can treat licensing as equivalent to revenue raising. As used in IEEPA, the license is only to accomplish what B permits.

SAUER: In Hamilton v. Dillon, licenses -- once you had the license, then you had to pay the fees --

SOTOMAYOR: But that's the point I'm making, which is that the only use of license here is a noun. You can license to accomplish the powers that B gives the president.

SAUER: Let me be clear. We rely on the phrase regulated importation. We're not saying that --

SOTOMAYOR: Exactly. You're not relying on licenses for that reason.

SAUER: No, I only cite that language, that introductory language about, you know, instruments, licenses, or otherwise, as another layer of breadth in this particular section.

SOTOMAYOR: Counsel, would you listen to my question? You're not relying on license for the reason I just said, because it is a noun, not the verb. You're relying on regulate, correct?

SAUER: Yes, we're relying on regulate importation.

SOTOMAYOR: And despite the fact that no other president in the history of IEEPA has ever used -- has ever imported -- used tariffs as a power under IEEPA.

SAUER: Well, President Nixon did so -- SOTOMAYOR: Under a predecessor, and we have all the limitations of

that. All right. Number two, whenever Congress intends to permit taxing and regulate, it uses the word tax and regulate in every other statute, correct?

SAUER: I don't concede that. I mean, two very visible examples again are TWEA and Section 122.

SOTOMAYOR: We're back to the question here. OK. Thank you, Counsel.

ROBERTS: Justice Sotomayor?

JUSTICE ELENA KAGAN, U.S. SUPREME COURT: No, she's Justice Sotomayor.

SOTOMAYOR: Yes.

KAGAN: She just finished.

ROBERTS: Justice Kagan.

KAGAN: General --

SOTOMAYOR: And they're friends.

KAGAN: -- I want to take you back to Justice Thomas' question about non-delegation, and if I understood your answer correctly, it was really similar to the answer that you started off with when you talked with Justice Thomas about the major questions doctrine, which is sort of everything's different because the president has independent constitutional powers in this area.

And so, that -- if one does not think that with respect to tariffs, if one thinks that a tariff is a taxing power, is a regulation of foreign commerce that is really delegated by the Constitution to Congress, that argument does not sound so well. And in fact, when you look at J.W. Hampton, which gives rise to the non-delegation test that we usually use, J.W. Hampton is a tariffs case.

And the Court did not say, oh, we need some special new principle here, some stricter rule because we're dealing with tariffs in which presidents are directly concerned as a matter of foreign relations. It enunciated the test we use for all non-delegations. So, how does that fit with your theory?

SAUER: Eight years later, in Curtiss-Wright, the Court held the non- delegation doctrine for domestic affairs does not apply with the same force as it does in foreign affairs.

KAGAN: But not with respect to tariffs, not with respect to quintessential taxing powers, which are given by the Constitution to Congress.

SAUER: I think justices of this Court have recognized in their opinions that one of the reasons that the non-delegation doctrine, you know, that intelligible principle test hasn't packed as much punch as Justice Kavanaugh said in one of his opinions as it might otherwise have done is it did arise in the foreign affairs context because there the Court has historically been very, very comfortable with very broad delegations.

[10:50:00]

Chicago and Southern Airlines, another case from the 1930s, shortly after J.W. Hampton talked about the very large delegations of the foreign commerce power being very effective. And, of course, this goes back to the very dawn of the Republic in 1790, for example. Congress conferred on President Washington, basically the entire Indian commerce power, is that go, you know, get licenses, right, to do commerce with the Indians and they'll be subject to whatever rules and regulations President Washington can make.

So, I do think there is a profound consistency between the announcement of the intelligible principle test in J.W. Hampton and then the subsequent recognition by this Court in Curtiss-Wright that the non-delegation document doesn't apply to the same force in this context.

KAGAN: In consumers' research just last year, we had a tax before us and the question was, was this a delegation issue? It was, of course, a much smaller tax which dealt with many fewer taxpayers. Notwithstanding that, we said if there's no ceiling on this tax, we sort of assumed that if there were no ceiling on this tax, it would raise a delegation problem. And most of the opinion was given over to showing that there, in fact, was a ceiling on the tax, not a quantitative one, but a qualitative one.

But how does your argument fit with the idea that a tax with no ceiling, a tax that can be anything, that here the president wants, there an agency wants, would raise a pretty deep delegation problem?

SAUER: First of all, I can't say enough. It is a regulatory tariff, not a tax. And that, I think, ties to my response to that, which is that this is a totally different context. This is IEEPA, a statute that Congress carefully crafted to grant the president admittedly broad powers to address foreign arising emergencies. It's outward facing to foreign affairs where there's the broadest level of deference to the political branches of this Court, as recognized in many cases.

And it imposed not a floor or a limit on the amount of a tariff that could be imposed very naturally, because, for example, as this Court said in Loving, quoting Alexander Hamilton in the Federalist Number 23, it's impossible to foresee either what exigencies may arise or what tools may be needed to address those exigencies, the means that may be required to address those exigencies. Instead, Congress grant very broad powers, but they're confined to a particular domain. This domain is any property in which any foreign government or any national thereof has any interest.

So, the sort of discipline, if one were to apply, we say you shouldn't, but if you were to apply the non-delegation doctrine, the domestic-facing non-delegation doctrine in this context, there's a significant limitation there. You have a lot of powers. KAGAN: So, the last -- my last question really does have to do with that point, which is how or whether this is confined. Because if you look at Title 19, which is loaded with tariffs and duties of various kinds, all of them have real constraints on them. They are -- you know, you can't go over X percent or it can't last more than one year. And of course, the way you interpret this statute, it has none of those constraints.

And the question arises why it is that any president ever would look to the tariffs in Title 19 if sub silentio, if you will, this statute gives the president the opportunity to blow past those limits.

SAUER: This statute has its own constraints. They are constraints that are appropriate for the context, which is internationally arising emergencies. They are carefully crafted by Congress to address that. And they are admittedly different. They're in Section 1701. The president has to make a formal declaration of a national emergency, which subjects him to particularly intensive oversight by Congress, repeat, you know, natural lapsing, repeated review, reports, and so forth. It says you have to consult with Congress to the maximum extent possible.

KAGAN: I mean, you yourself think that the declaration of emergency is unreviewable. And even if it's not unreviewable, it's of course the kind of determination that this court would grant considerable deference to the president on. So, that doesn't seem like much of a constraint. And in fact, you know, we've had cases recently which deals with the president's emergency powers. And it turns out we're in emergencies everything all the time, about like half the world.

SAUER: Well, this particular emergency is particularly existential as Executive Order 14257 says. And of course, no one disputes the existential nature of the federal crisis, which, you know, we had an agreement last week to create progress on, which illustrates the effectiveness of the terrorist tool here.

But the point I would make in response to that is those are -- even if there's limited judicial review, which is very natural in the foreign affairs context, this court has always granted the president the presumption that he's acting in good faith. There are real hurdles there, very significant. It's got to be an unusual, extraordinary threat that arises in whole or substantial part outside the United States. So, it's entirely foreign facing into the national security economy or foreign policy of the United States. So, there are those.

[10:55:00]

Then there's, you know, 1701B, which talks about how it can be used for this and for no other purpose. Then there are limitations in Section 7202B. Then there is the limitations I referring to earlier about what he can actually do. He can do a heck of a lot, but only means he is dealing with property in which foreigners have an interest. And that's a pretty narrow domain. That's quite a silo, so to speak.

And then of course, overarching it all, there's congressional oversight. And you may say congressional oversight may not have much bite, but Congress didn't think so. Congress crafted this compromise. It balanced the never-ending tension. When it drafted IEEPA it had its eyes open -- as the dissent blow, it says it's eyes open. Looking at the problem of sweeping emergency powers, foreign executive who may use them in a way that's excessive versus the need to address unforeseeable emergency.

KAGAN: Thank you, General.

ROBERTS: Justice Gorsuch.

JUSTICE NEIL GORSUCH, U.S. SUPREME COURT: General, just a few questions following up on the major questions, discussions you've had. You say that we shouldn't be so concerned in the area of foreign affairs because of the president's inherent powers. That's the gist of it, as I understand it, why we should disregard both major questions and non-delegation.

So, could Congress delegate to the president the power to regulate commerce with foreign nations as he sees fit? Delay and collect duties as he sees fit?

SAUER: We don't we don't assert that here. Now, in --

GORSUCH: Isn't that the logic of your view though?

SAUER: I don't think so because we're dealing with a statute that was a carefully crafted compromise. It does have all the limitations that I just talked about.

GORSUCH: But you're saying you shouldn't look -- we shouldn't be concerned with -- yes. I want to explain to me how you draw the line because you say we shouldn't be concerned because this is foreign affairs and the president has inherent authority and so delegation off the books, more or less.

SAUER: Or at least --

GORSUCH: And if that's true, what would prohibit Congress from just abdicating all responsibility to regulate foreign commerce, for that matter, declare war to the president?

SAUER: We don't contend that he could do that. I if it did --

GORSUCH: Why not?

SAUER: Well, because we're dealing with a statute, again, that has a whole --

GORSUCH: I'm asking about the statutes. General, I'm not asking about the statute. I'm asking for your theory of the Constitution and why the major questions and non-delegation, what bite it would have in that case?

SAUER: Yes. I would say by then you would move from the area where there's enormous deference to the president, actually, both the political branches, where here there's inherent authority and the pile on top of that, there's a broad delegation.

GORSUCH: You're saying there's an inherent authority in foreign affairs, all foreign affairs. So, regulate commerce duties and tariffs and war. It's inherent authority all the way down you say, fine, Congress decides tomorrow, well, we're tired of this legislating business. We're just going to hand it all off to the president. What would stop Congress from doing that?

SAUER: That would be different than a situation where there are meets and bounds, so to speak. It would be a wholesale application.

GORSUCH: You say we are not here to judge meets and bounds when the foreign, that's what I'm struggling with you. You'd have to have some test and if it isn't the intelligible principle test or something more -- with more bite than that, you're saying it's something less, what is that less?

SAUER: I think what the Court has said in its opinions is just that it applies with much less force, more limited application in this context. So, perhaps the right to approach it is a very, very deferential application of the intelligible principle test that that sort of wholesale application of --

GORSUCH: Right. So, now you're admitting that there is some non- delegation principle at play here. And therefore, major questions as well. Is that right?

SAUER: It's still very limited you know, very, very deferential limited is what -- and again the phrase that Justice Jackson uses, it just does not apply. At least --

GORSUCH: I know, but that's where you started off and now you've retreated from that as I understand it.

SAUER: Well, I think we would -- as our frontline position is assert the stronger position, but if the court doesn't accept it, then if there is a highly --

GORSUCH: Can you give me a reason to accept it though? That's what I'm struggling and waiting for. What's the reason to accept the notion that Congress can hand off the power to declare war to the president?

SAUER: Well, we don't content that. Again, that would be --

GORSUCH: Well, you do, you say it's unreviewable. There's no manageable standard, nothing to be done. And now, you're -- I think you -- tell me if I'm wrong, you backed off that position.

SAUER: Maybe that's fair to say.

GORSUCH: OK. All right.

SAUER: Because that would be think an abdication.

GORSUCH: Thank you.

SAUER: That would really be an abdication, not a delegation.

GORSUCH: I'm delighted to hear that, you know. All right. And then I wanted to return to something Justice Sotomayor asked under this statute. OK. So, now, we're in the statute. It's major questions -- question though. Could the president impose a 50 percent tariff on gas powered cars and auto parts to deal with the unusual and extraordinary threat from abroad of climate change?

SAUER: It's very likely that that could be done. That very likely --

GORSUCH: I think that has to be the logic of your view.

SAUER: Yes. In other words -- obviously, this administration would say that's a hoax. It's not a real crisis, but --

GORSUCH: I'm sure you would.

SAUER: Yes. But that'd be a question for Congress under our interpretation, not for the courts.

GORSUCH: All right. And then on this inherent authority idea, does -- I take -- I understand the president's inherent authority in wartime and a lot of your examples of regulating commerce and --

[11:00:00]