The Tariff Case and Veto Overrides

During oral argument in the tariff case, there was a recurring theme: if the Court agreed with the President that IEEPA grants this power, it would take a veto-proof majority in Congress to claw back that power.

Justice Gorsuch described delegation as a one-way ratchet that, as a practical matter, cannot be retrieved.

JUSTICE GORSUCH: Okay. You emphasize that Congress can always take back its powers. You mentioned that a couple of times. But don’t we have a serious retrieval problem here because, once Congress delegates by a bare majority and the President signs it –and, of course, every president will sign a law that gives him more authority –Congress can’t take that back without a super majority. And even –you know, even then, it’s going to be veto-proof. What president’s ever going to give that power back? A pretty rare president. So how –how should that inform our view of delegations and major questions? . . . But what happens when the President simply vetoes legislation to try to take these powers back? . . . Yeah. So Congress, as a practical matter, can’t get this power back once it’s handed it over to the President. It’s a one-way ratchet toward the gradual but continual accretion of power in the executive branch and away from the people’s elected representatives.

Justice Barrett returned to Gorsuch’s question:

JUSTICE BARRETT: Okay. Then a question just to follow up on Justice Gorsuch’s thing about how could Congress ever get this delegation back, you said, well, listen, you point to the –Congress’s ability to terminate emergencies, which it’s done. But, if Congress ever wanted to get the tariffing power back, it would have to have a veto-proof majority because, regardless of the emergency, so if Congress wanted to reject the –let’s say that we adopt your interpretation of the statute. If Congress said, whoa, we don’t like that, that gives a president too much authority under IEEPA, it’s going to have a very hard time pulling the tariff power out of IEEPA, correct? . . .  But –but definitively interpreting a statute that grants presidential power makes it particularly hard to get the President to not want to veto something, which, as Justice was pointing out –Justice Gorsuch was pointing out, has him lose power. All right.

I’ll admit, I was a bit perplexed by this concern. In any case where the Supreme Court adopts an interpretation of a statute that the President favors, it will take a veto-proof majority to modify that statute. Congress routinely revises statutes after a Supreme Court decision. In some of those cases, the President may favor the Supreme Court’s reading, but for many institutional reasons, acquiesces to Congress’s approach.

For example, President George H.W. Bush vetoed the Civil Rights Act of 1990, and Congress failed to override that veto. But one year later, Congress enacted the related Civil Rights Act of 1991. William Eskridge talked about this history here. This law was not a separation of powers bill, like IEPPA, but this history illustrates how politics works. I don’t think the Justices fully realized that there are political costs to the President vetoing a bill. Indeed, pocket vetoes are used largely to avoid the spectacle of having to veto a bill.

This issue reminded me of a colloquy in Trump v. Anderson. Recall that a Section 3 disability could be removed by a 2/3 vote of each house–the same standard for overriding a veto. Justice Kagan posed this question:

Elena Kagan: — because, if Congress has the ability to lift the vote by a two-thirds majority, then surely it can’t be right that one House of Congress can do the exact same thing by a simple majority.

Jonathan F. Mitchell: Yeah, there certainly is some tension, Justice Kagan, and some commentators have pointed this out. Professor Baude and Professor Paulson criticized Griffin’s Case very sharply.

Elena Kagan: Then I must be right. (Laughter.)

In case you forgot, Jonathan Mitchell represented Trump in this case.

The Justices are very concerned about the difference between a simple majority to pass a statute, and a 2/3 vote to reverse that action. Under the current political dynamic, the override of a veto is fairly rare. But I don’t think that likelihood should inform how the Justices decide cases. The Court can only resolve judicial matters, and let the political chips fall where they may.

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