As Sloan noted a few days ago, Friday was the final deadline for amicus briefs in the Trump tariff cases. I filed one of those briefs (in support of the companies challenging the Trump tariffs), alongside Jon Endean (Brooklyn), Ari Glogower (Northwestern), and Daniel Hemel (NYU). (The brief was also supported by the indefatigable students at WashU’s appellate clinic.) Here, I want to summarize the brief and offer a few additional reflections about where it came from and what it’s aimed at. (Ari and I also have a longer paper on some related subjects in the works, so we welcome feedback.)

The brief has a narrow goal. All four of us are interested in the early history of American taxes, and it’s hard (if not simply impossible) to work on that subject without learning something about the history of American tariffs, too. The main purpose of the brief is simply to lay some of that early tariff history on the table—history that I think reflects the overwhelming expectation that Congress and not the President would be making the big decisions in this area—with an eye toward the Justices who care about early constitutional history and have expressed a renewed interest in rethinking delegation principles. (For example: Justice Gorsuch’s recent dissents in Gundy and Consumers’ Research.) The brief says very little about IEEPA, the statute that purportedly authorizes the tariffs at issue. Instead, we take the Trump Administration’s broad reading as a given and ask how it lines up against what Americans were thinking about the relevant distribution of power in the 1780s and 1790s.

Two aspects of that early history strike me as especially relevant to the case.

First, there is some distinct history to tariffs—as distinguished from the “internal” objects of the taxing power—that might make one more suspicious of broad presidential tariff delegations as compared to other areas of law. In this vein, I’ll note that I’m sympathetic to the idea—pressed recently by Chad Squitieri—that, if we’re thinking about delegation principles, we should go power by power, rather than treating “legislative power” as an undifferentiated whole. (And I note that sympathy even though Chad filed a brief on the other side of this case!)

So, what is that distinct tariff history? Well, in the 1780s and far beyond, “external” taxation—that is, duties on imports, including tariffs—was the heart of American public finance. Under the Articles of Confederation, Congress had no independent taxing power, and its efforts to enact a national impost were twice derailed by a single state’s veto. The impost issue was far more important than any controversy over “internal” taxes, and the resulting fiscal paralysis was a central reason for the Constitutional Convention of 1787. State struggles over the impost presented classic “factional” interests that the founders thought should be mediated through the legislature. A nice flavor of this can be found in Madison’s Federalist 10, which uses the relationship between foreign goods and the domestic economy—“Shall domestic manufactures be encouraged, and in what degree, by restrictions on foreign manufactures?”—as a key example of a factional interest that the legislature should deal with.

The text of the Constitution also treats internal and external taxes differently. It emphasizes several times that Congress is in charge of the external stuff (e.g., Article I, section 10, clause 2: state import laws “shall be subject to the Revision and Controul of the Congress”). And it makes clear that the states were giving up their concurrent authority over import duties—which they did not do for internal taxes. (One might ask: Would the states have done so if they knew the President—a far more controversial part of the 1787 Convention than the need for federal impost revenue—could have unfettered discretion over what everyone expected would be the most important federal revenue authority?) And, finally, the early history following ratification is generally one of congressional primacy. The early history of the taxing power more broadly is complicated (see e.g. Nicholas Parrillo’s great article on the Direct Tax of 1798), but I am in general agreement with my former colleague Jenn (and now Judge) Mascott that early tariffs are a core case of congressional control. (Explaining that difference—between Parrillo on the direct tax and Mascott on early customs laws—is also something Ari and I are working on in our separate paper.)

Second, there is no particularly good reason to think that adjacency to foreign policy changes the historical analysis above. This is a key sticking point in the briefing: The government’s theory is that IEEPA merely supplements the President’s Article II powers, and thus a weaker delegation inquiry applies. This also seems to be a theory that Justice Gorsuch has at least had in mind. In last year’s Consumers’ Research case—a case about the delegation of taxing authority in another context—Justice Gorsuch dropped a long and interesting footnote (number 15) suggesting that a tariff delegation “arguably raises distinct nondelegation questions from domestic taxes.” But the founders knew perfectly well that tariffs had foreign-policy consequences. Hamilton, Madison, Wilson, Jefferson, Adams, Jay—pretty much everyone I’ve looked at from that era—all described tariffs as tools of economic diplomacy and domestic protection as well as of revenue-raising. Early Congresses used them as more than a revenue tool. I am not aware of anyone from this early history thinking about delegations of tariff rates and tariffs targets to the President.

So that’s the brief. It doesn’t claim that every delegation touching tariffs is unconstitutional, or even offer a standard the Court should apply. It just lays out the history above—and argues that IEEPA is out of step with it.