I’d love to live in a world where non-delegation was such a robust doctrine. But “you can set tariffs if you find that other countries are being unfair” (paraphrasing) is a more than intelligible principle supporting Congress’s delegation.
The case before the Court of International Trade failed on non-delegation and major questions grounds. But my point isn't that SCOTUS will affirm the lower court here (though: they will), but rather that your logic upthread doesn't hold. You said "the President makes foreign policy, not the courts". Plain category error.
Trump is knee-deep in negotiating with foreign countries on trade deals using the tariffs as leverage. And the court must purported to kneecap him. Of course it’s an exercise of the President’s foreign policy powers, and that’s why Congress gave the President this authority over tariffs in the 1930 act.
The major questions issue shows how out on a limb this court is. There’s currently a circuit split on whether MQD even applies to the president.
Your bigger problem here is "accomplishing foreign policy objectives using tariffs" is not an authority Congress has delegated to the executive branch, and, in fact, this cuts against his argument (that he is instead responding to an "economic emergency", despite the performance of our economy and the fact that he's responding to conditions that we have been working with for generations).
You have somehow put yourself into a position of having to argue that an enumerated power of Congress actually belongs wholly to the executive so long as the executive has some constitutionally legitimizing purpose for the application of that power. I think you must be doing this for sport, just to see if you can wriggle out from the contradictions.
If “racism” can be a “public health emergency” (https://abcnews.go.com/US/york-governor-declares-racism-publ...) then surely the gutting of american industrial capacity qualifies as an “economic emergency.” One that has serious national security implications, too. Surely it falls within the “emanations from the penumbras” of Congress’s delegation.
And I never said the tariff power belongs to “wholly to the executive.” My view is that economic warfare between countries falls within the scope of Congress’s delegation of tariff authority. And under existing precedent, that’s a sufficient “intelligible principle” to avoid non-delegation problems.
Yeah I don't think this "the other side called racism a public health emergency so we the word no longer means anything" argument is going to get you very far in court, but maybe you just think it'll get you somewhere here. Either way, under current law, the administration's foreign policy objectives have virtually nothing to do with their (limited) tariff authority.
