Marshall wrote in 1824’s Gibbons v. Ogden that the “right to regulate commerce, even by the imposition of duties, was not controverted,” by the “illustrious statesmen and patriots” of the founding era. In an 1828 letter, Madison referred to the first Congress’s imposition of duties in 1789 as an example of tariff authority flowing from both the power to tax and the power to regulate commerce. And as Madison explained in that letter, he did not think it was problematic that tariff authority could flow from both powers. To the contrary, he thought “it was quite natural, however certainly the general power to regulate trade might include a power to impose duties on it, not to omit it in a clause enumerating the several modes of revenue authorized by the Constitution.” In 1833, Story’s “Commentaries on the Constitution of the United States” recognized that laying duties was “a common means of executing the power” to regulate commerce.
To be sure, the Constitution vests the power to regulate commerce by imposing tariffs in Congress rather than the president. And so, for the International Emergency Economic Powers Act to successfully delegate that authority, the law must survive scrutiny under the nondelegation and major questions doctrines. But neither doctrine poses a problem.
The nondelegation doctrine places constitutional limits on Congress’s ability to delegate power to the president. But long-standing precedent establishes that the doctrine applies less stringently, if at all, in the context of foreign affairs.
Besides, the International Emergency Economic Powers Act satisfies even the domestic version of the nondelegation doctrine. Just last term, in FCC v. Consumers’ Research, the Supreme Court approved a broad delegation of domestic tax or commerce-regulating power. The statute in Consumers’ Research did not place a dollar limit on the executive’s ability to raise revenue via domestic taxes or fees. By comparison, the law under review in this term’s tariff cases places more serious limits on the executive’s power. The act limits who can impose tariffs, when tariffs can be imposed and how long the tariffs can last. The act also limits the scope and magnitude of the tariffs by requiring that the tariffs “only” be used to “deal with” specific threats.