May 2020: International Trade Update | Quinn Emanuel Urquhart & Sullivan, LLP – JD Supra

Will the Non-Delegation Doctrine Be Reinvigorated?

A recurring question in American trade law is whether various statutory delegations of authority to the President to take actions against imports—such as imposing duties, fees, or quotas—violate Article I of the Constitution, which vests “all legislative Powers” in Congress, including the power “To lay and collect Taxes, Duties, Imposts and Excises.”  For two centuries, the Supreme Court has mostly rejected such “non-delegation” challenges to trade statutes.  But in the past year, five justices have signaled a potential willingness to re-invigorate the non-delegation doctrine.  A recent trade decision by the Federal Circuit will give them that opportunity.

Origins of the Non-Delegation Doctrine

The non-delegation doctrine traces its origins to trade cases dating back 200 years.  In The Brig Aurora, 7 Cranch 382 (1813), the Supreme Court upheld a delegation to the President of the power to issue a proclamation that would revive a statutory ban on imports from Great Britain or France.  Eighty years later, in Field v. Clark, 143 U.S. 649 (1892), the Supreme Court relied on The Brig Aurora to uphold a delegation to the President of the power to suspend statutory provisions that exempted foreign sugar, molasses, coffee, tea, and hides from import duties.  But even as it upheld that provision, the Court emphatically declared that the principle that “Congress cannot delegate legislative power to the President” is “universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution.”  Id. at 692.

Then, in J.W. Hampton,