In tariff cases, verbs rather than major pronouncements about presidential power give the court the off-ramp it’s looking for

Clear Statements is a recurring series by Abbe R. Gluck on civil litigation and the modern regulatory and statutory state.

Verbs, verbs, verbs.

Court-watchers hoping for fireworks over the reach of presidential authority in the tariff cases argued at the Supreme Court on Wednesday might have been left a little disappointed. Going in, much real estate was devoted to questions of presidential power. For instance, the case teed up the as-yet unanswered question of whether the major questions doctrine – the assumption that Congress doesn’t delegate significant power to the executive without crystal-clear statutory language – applies to the president at all in the foreign affairs context. But that doctrine was more of an afterthought on Wednesday than a star. And while there was some discussion of the constitutional principle of nondelegation – the validity of an apparently limitless delegation of authority to the president – that topic did not really take center stage either.

Instead, it was verbs. And with special attention to one verb in particular: the verb “regulate.” Indeed, the word “verb” was invoked 40 times across the argument, and “regulate” 155 times, both by a wide array of justices. (By comparison, the phrase “major question(s)” was mentioned only 26 times). The thrust of the debate was over how to interpret “regulate” in a statutory list of nine verbs that, under the International Emergency Economic Powers Act, give the president emergency powers over certain activities, including “importation.” The court’s apparent decision to narrow such a significant dispute over presidential authority to a question of close linguistic analysis does a lot more than reveal the comfort that nearly all of the justices now have with the court’s textualist methodology (and it does show that): it also illustrates how a focused textual analysis offers the court a safer, more detached, off-ramp in a politics-infused case than broad pronouncements on presidential power. 

First of all, don’t be surprised if the final opinion is full of Latin.

The arguments offered a Thanksgiving-worthy cornucopia of textualism’s favorite linguistic presumptions, with two Latin maxims taking center stage. Those rules were “noscitur a sociis” (translated loosely as an ambiguous term “is known by its associates”) and “ejusdem generis” (translated loosely as an ambiguous catch-all term is interpreted to be “of the same kind” as the words preceding it in a list). And while not invoked in their original Latin by the court on Wednesday, they were unmistakably at the core of the justices’ questions over whether the power to “regulate … importation” includes the power to impose tariffs. 

To back up a bit, the statute in question, IEEPA, allows the president to “investigate, block … regulate, direct and compel, nullify, void, prevent or prohibit, any … importation.” In line with the Latin maxims, the justices put great weight on a holistic reading of that list of nine verbs together, and how none of the others arguably suggests any power sufficiently related to taxation (which is what tariffs levy on imports) to imbue the word “regulate” with that authority. This is the classic application of the noscitur a sociis rule, and it’s a judicial favorite that has been used for decades, in cases ranging from disputes over habitat modification under the Endangered Species Act to those over President Joe Biden’s COVID-era mask mandate.

Noscitur’s first cousin, ejusdem generis, which likewise has a history of invocation across a broad range of cases (including an infamous dispute over whether the evidence-destruction provisions of the Sarbanes-Oxley Act apply to a bunch of improperly caught – and then destroyed – fish), was similarly in play. IEEPA’s authorization to “regulate” includes detail on how the president may do so, specifically, through prescribing such action “by means of instructions, licenses, or otherwise.” Whether tariffs/taxes are sufficiently similar to “licenses” to come within the catch-all phrase “otherwise” is the question that the ejusdem rule has long required the court to ask. Some grammar teachers undoubtedly leapt out of their chairs with excitement during the argument.

The solicitor general kept trying to dissuade the court from deploying these rules, arguing that the president’s power under IEPPA should not be cabined by them. His insistence on a more atextual reading throughout the argument was somewhat ironic: the current doctrinal dominance of close-reading textualism and its associated rules is the product of the president’s own transformation of the court’s composition via his appointments.

Along the way, we also saw the justices invoke some other textualist favorites, which likewise do not favor the government’s position. For example, the justices repeatedly invoked the presumption that Congress legislates with consistency across the U.S. Code (the full compilation of federal statutes). I have previously shown how this so-called “whole code rule” is largely based on a legal fiction – Congress does not actually legislate with that kind of consistency – but it remains a powerful presumption utilized by the court nonetheless. On Wednesday, justices from Sonia Sotomayor to Amy Coney Barrett deployed that rule to push the government on why the court should read “regulate” to include the authority to impose tariffs when, as they repeatedly noted, no other provision in the entire U.S. Code uses “regulate” that way, and, in fact, Congress always uses more specific language to denote that tariff-imposing power. 

Not all of the justices were equally content hewing close to only the clean safety of textual rules. Justice Ketanji Brown Jackson once more took on the mantle of the court’s most committed purposivist, insisting that “some of us [still] care about the legislative history” and focusing on Congress’s stated intentions in enacting the law to support her reading of the text. Jackson came out swinging last term against inflexible textual analysis, arguing emphatically in favor of an approach that continues to look at Congress’ intent to understand a statute’s meaning. If this case is any indication of what’s to come, we should expect to see her continuing to push back against textualism’s momentum.

Also of significance: There was no debate over whether IEEPA had to be ambiguous to invoke the major questions doctrine, as some had expected. Many statutory interpretation presumptions are triggered by an ambiguity finding, and that used to be the case for major questions, too. But, at argument, that word came up only once. I have previously illustrated that the court, in the Biden-era COVID cases, effectively did away with this threshold requirement of textual ambiguity for major questions. In those cases, justices were eager to apply the major questions rule against the administration, so they began to treat that rule in in one of three ways, all of which allow it to be deployed more readily.

First, the court sometimes now views the major questions doctrine as an expression of how ordinary people read text – i.e., an ordinary reader would not read the power to regulate as including such a major power as taxation without the statute saying so. That’s the way Barrett likes to conceptualize it. Alternatively, other justices deploy the rule as a modern-day incarnation of the formerly used, but now rarely invoked, “rule against absurdity.” That rule was a safety valve Justice Antonin Scalia deployed to deviate from statutory text. The major questions doctrine has similarly been invoked to effectively say, “those words can’t really mean what they say.” Finally, some justices, especially Justice Neil Gorsuch, use it as a species of constitutional avoidance – the longstanding presumption that, when faced with multiple interpretations, courts should choose one that avoids any constitutional issues. Gorsuch often invokes major questions to avoid directly deciding whether a statute would be unconstitutional under the nondelegation doctrine.

In the tariffs dispute, despite extensive major-questions chatter leading up to the case, the court didn’t really seem to need it. And that’s because major questions, especially when invoked without a finding that the statute is ambiguous, gives textualists a way not to be textualist. It gives them a way to say, “hey, we need to deviate from a literal reading here because we cannot assume Congress really meant this.” But this time, rather than get into the thorny issues of whether the doctrine applies to the president in this context, and rather than depict the case as a struggle out of a literal-meaning straitjacket that required a major-questions escape, the majority of justices seemed to prefer the much easier path of putting all of that to the side and just looking at a list of verbs and finding the statute clear on those terms.

If the major questions doctrine does get airtime in the ensuing opinion, it’s most likely to be used – in line with one of the court’s favorite phrases – as “icing on a cake already frosted.” That is, it will be deployed simply as additional proof of the result the text already leads to. And if we do see it, it’s likely to be there to satisfy those justices, like Gorsuch, who raised nondelegation concerns at argument. As in the COVID cases, invoking the major questions doctrine is a convenient way for the court to gently emphasize its constitutional concerns without bringing the heat of a high-stakes constitutional ruling upon on the administration. That’s the kind of backdoor constitutional work a lot of the court’s statutory interpretation presumptions do. 

Ironically, the last time we saw this much attention to lists and Latin maxims, with some major questions thrown on top, was when federal courts directed those weapons against the Biden administration during the COVID-19 pandemic. It was interesting to see the solicitor general in the tariff-case briefs describe applying the major questions rule as a move that would, in the name of safeguarding Congress’ authority, actually pull power from the president to the court – the same argument that Biden’s advocates consistently made.

Some people get frustrated when the court decides high-stakes cases in ways that focus on the micro level of text, dictionary definitions, and grammar, rather than on major principles of constitutional or substantive law. They want the court instead to take head-on the big issues of separation of powers. Unlike a sweeping decision on presidential authority, a focused textualist analysis coming out against the president in a case like this one is less likely to deter the administration from attempting a policy-do-over via another route. Nor is it as likely to be viewed by the president as a major smack down. And that, indeed, may be part of the attraction of this approach for at least a portion of the court.