Ideologically diverse coalition of justices joins textualist decision setting aside tariffs

In a 2015 lecture at Harvard, Justice Elena Kagan memorably exclaimed, "We are all textualists now." Paying a deep compliment to her then-colleague Justice Antonin Scalia, she meant that justices of various stripes all accept the idea that textualism--that is, determining the plain, ordinary and objective meaning of words at the time of enactment--is a legitimate method of statutory interpretation. The Supreme Court's Learning Resources tariffs decision just proved her point.

In a masterful textualist reading of the International Emergency Economic Powers Act (IEEPA), Chief Justice Roberts wields his full textualist toolkit in cobbling together a 'bipartisan' majority. It includes Democrat appointees Justices Kagan, Sotomayor, and Jackson as well as Trump appointees Justices Gorsuch and Barrett. The decision illustrates textualism's power to bridge the ideological divide and unite justices coming from different perspectives behind a single authoritative reading of a law. Its ability to do so in a prominent case with extraordinarily high stakes is a remarkable achievement.

Notably, other interpretive approaches did not garner a majority. The Chief Justice only wrote for himself and JJ. Gorsuch and Barrett in saying--correctly--that the Major Questions Doctrine would also support the result. Justice Jackson wrote for herself only in also relying on legislative history as a buttress for the textualist reading. Justice Thomas dissented, writing for himself alone, in reaching a contrary result via an ostensibly originalist constitutional interpretation.

One hallmark of textualism is that it leads to predictable results. And, indeed, the New Civil Liberties Alliance's textualist arguments presaged this outcome when we filed the first lawsuit in the country against the IEEPA tariffs last April. Many of the textualist arguments that NCLA initially made in federal district court there on behalf of Emily Ley's Simplified planners company, or featured in our appellate amicus brief in Learning Resources, are the same ones that prevailed at the U.S. Supreme Court.

The Court leads off noting that Article I, Section 8 of the Constitution gives tariff power to Congress and that this case involves the "core" congressional power of the purse. It points out that IEEPA does not mention "tariffs" among the lengthy list of specific powers that it delegates. It explains that the definition of 'regulate' does not usually encompass taxation (and says that the government fails to identify another statute where the power to regulate includes the ability to tax). The Court further observes that IEEPA would be partly unconstitutional if the term 'regulate' in IEEPA did authorize taxation because the statute refers to 'importation or exportation' and yet the Constitution explicitly forbids taxing exports.  

The Court then discusses the words that surround 'regulate' in the statute, detailing the nine verbs that confer authority, and remarking that none of them entails raising revenue. The Court also shows that Congress's pattern of usage typically features clear language with careful constraints when conferring tariff power, but IEEPA has neither, as NCLA's amicus brief illustrated in painstaking detail.

The majority opinion dispenses with other, less textualist arguments, including the relevance of a single 1970s-era precedent from the Federal Circuit's predecessor court, an argument based on the Supreme Court's (inapplicable) wartime precedents, and arguments based on two other Supreme Court decisions--one because it contained sweeping language IEEPA does not and another because it did not involve tariffs.  

The Supreme Court issued a fascinating collection of opinions in the tariffs case that repay careful study. Even Justice Kavanaugh's dissent, joined by JJ. Thomas and Alito, makes an unconvincing (but textualist) pitch that the word 'regulate' encompasses tariff power. When even the main dissent joins the debate on primarily textualist grounds, one thing can be said for certain: it was a good day for textualism.