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I disagree. Kavanaugh makes a strong argument that given the Nixon tariff, the meaning at the time of the statue would’ve been clearly understood to include tariffs and therefore MQD is not applicable. The fact presidents haven’t used it since is largely irrelevant.
He also points to the historic understanding to again ground the definition to obviously include tariffs. Finally, he makes a compelling point that the majority seems to believe the statue permits a bull elephant in this elephant hole (the ability to prevent any imports from a country) yet the majority believes the statute precludes a baby elephant (ie a tariff). This is of course an inversion of how MQD typically work.
I think the reality is that in the merits of interpreting regulating imports Kavanaugh has the better of it. But I think what really bothers the conservative members of the majority is the statute envisages an emergency. But how could our trade balance—which has existed for decades—be an emergency?
So while that part wasn’t really reviewable I think the majority imprecisely used MQD to say no way even if doctrinally Kavanaugh has the better of it.
And Jackson makes a stronger argument based on the Congressional Record that the statute was not, in fact, clearly understood to include tariffs at the time it was passed. I am a textualist, and I would prefer to interpret IIEPA according to its text (which makes this an easy MQD case). But if we want to know what Congress thought IIEPA meant, they told us.
I don’t found her analysis compelling at all (putting aside whether legislative history ought to even be considered).
It seems to me that regulating (the word used in the legislative history) easily can include tariffs. Moreover, I think she is wrong that tariffs goal is to raise revenue. It is impart revenue raising but many defenses of tariffs are not about revenue raising (eg protecting nascent industries, protecting strategically important industries). Tariffs categorically could easily fit within the legislative history.
But me finding a Jackson opinion lacking is like me finding steak delicious. It’s expected.
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I don't think this point is that compelling. A power that can be controlled precisely is greater than a power that can only be used completely or not at all, so a tariff that can go from 0 to a percentage that is indistinguishable than a ban is actually a greater power than to merely ban or not.
But the majority also allows quotas (so not 0-100). Functionally, a quota functions somewhat similar to a tariff in economic impact.
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Also the bull elephant isn't in a hole of any kind - it is on the face of the statute. The statute grants a number of powers expressly, including to prohibit trade. The Kavanaugh interpretation is that all of these, plus tariffs, are implicit in "regulate".
We can argue about whether it is rational to delegate a power to ban trade without also delegating the lesser power to tariff it. (In wartime, which was the original context of the legislation, it obviously is.) But if you interpret the text of IIEPA as limited to its express words (under the MQD or any other canon of strict construction) then that is what Congress did.
You misunderstand the metaphor.
The origination of the phrase is that Congress doesn’t hide elephants in mole holes (or anthills — I forget the specifics). The concept was the statue prima facie gave the authority (ie the hole) but the nature of bill was such that Congress clearly wasn’t intended to give a massive power to the executive.
Inverting the phrase (i.e., elephant in an elephant hole) is simply saying yes there was a massive grant of authority (ie the hole) but obviously Congress was intended to give the grant (thus the hole being elephant sized; not mole sized).
It is thus curious that Congress gave this large power but failed to include a smaller power within the catch all. Note this is the opposite of how MQD typically works.
Re wartime you have it exactly backwards. Tariffs become more important in wartime; not less. You are thinking about it in the context of the enemy. But the provision can be used for not just the enemy but third parties. As the executive, you may want to raise revenue, keep a supply of a vital good going while encouraging domestic production, or utilize the threat of tariffs to pressure third parties. It’s obviously a key wartime power and in the event of an actual war I believe SCOtUS would rule 9-0 there is a power to tariff.
Again, I think the real problem here is that there clearly was no emergency and thus Trump was abusing the statute. I think BK is correct that the statute envisages a tariff but am sympathetic to the majority that Congress was not envisioning its use in the way Trump has used the statute.
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