WEBVTT

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HERE, THE NOUN, THE VERBS THAT
ACCOMPANY REGULATE HAVE NOTHING

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ACCOMPANY REGULATE HAVE NOTHING
TO DO WITH RAISING REVENUES IN

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TO DO WITH RAISING REVENUES IN
THE FORM OF TAXES.

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THE FORM OF TAXES.
>> AND COUNCIL.

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>> AND COUNCIL.
>> ALGONQUIN WASN’T A

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>> ALGONQUIN WASN’T A
TEXTUALIST OPINION. DO YOU

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TEXTUALIST OPINION. DO YOU
AGREE WITH THAT? IN OTHER WORDS,

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AGREE WITH THAT? IN OTHER WORDS,
THE ANALYSIS THAT THE COURT WAS

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THE ANALYSIS THAT THE COURT WAS
USING THERE WAS REALLY KEYED TO

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USING THERE WAS REALLY KEYED TO
THE LEGISLATIVE HISTORY OF THAT

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THE LEGISLATIVE HISTORY OF THAT
STATUTE, AND IT WASN’T AS

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STATUTE, AND IT WASN’T AS
THOUGH WE WERE DOING AN

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THOUGH WE WERE DOING AN
INTERPRETATION OF THE WORD

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INTERPRETATION OF THE WORD
ADJUST.

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ADJUST.
>> I DISAGREE WITH THAT. I

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>> I DISAGREE WITH THAT. I
THINK YOU READ THE OPINION

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THINK YOU READ THE OPINION
FIRST. IT TALKS ABOUT PLAIN

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FIRST. IT TALKS ABOUT PLAIN
MEANING, THEN IT TALKS ABOUT

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MEANING, THEN IT TALKS ABOUT
STATUTORY CONTEXT, AND THEN IT

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STATUTORY CONTEXT, AND THEN IT
GOES ON TO LEGISLATIVE HISTORY.

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GOES ON TO LEGISLATIVE HISTORY.
SO IT WAS ALL THREE OF THOSE IN

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SO IT WAS ALL THREE OF THOSE IN
THE CONCLUSION. IT CAME TO IT

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THE CONCLUSION. IT CAME TO IT
DIRECTLY ADDRESSED AND REJECTED

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DIRECTLY ADDRESSED AND REJECTED
THE ARGUMENT THAT THE D.C.

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THE ARGUMENT THAT THE D.C.
CIRCUIT HAD ACCEPTED IN THAT

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CIRCUIT HAD ACCEPTED IN THAT
CASE, WHICH IS THAT WHEN

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CASE, WHICH IS THAT WHEN
CONGRESS WANTS TO DELEGATE THE

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CONGRESS WANTS TO DELEGATE THE
AUTHORITY TO TARIFF, IT USES A

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AUTHORITY TO TARIFF, IT USES A
CONSISTENTLY EXPLICIT AND

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CONSISTENTLY EXPLICIT AND
WELL-DEFINED APPROACH, WHICH IS

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WELL-DEFINED APPROACH, WHICH IS
TO USE THESE MAGIC WORDS TARIFF,

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TO USE THESE MAGIC WORDS TARIFF,
TAX IMPOSED, AND SO FORTH.

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TAX IMPOSED, AND SO FORTH.
>> ALL RIGHT.

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>> ALL RIGHT.
>> LET ME LET ME KNOW. WE THE

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>> LET ME LET ME KNOW. WE THE
CONGRESS IS NOT BOUND TO USE

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CONGRESS IS NOT BOUND TO USE
THAT PARTICULAR FORMULATION

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THAT PARTICULAR FORMULATION
WHEN IT WANTS TO CONFER THIS

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WHEN IT WANTS TO CONFER THIS
POWER.

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POWER.
>> LET ME ASK YOU ABOUT THE

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>> LET ME ASK YOU ABOUT THE
PREMISE OF YOUR ARGUMENT, WHICH

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PREMISE OF YOUR ARGUMENT, WHICH
YOU SORT OF STARTED AT THE

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YOU SORT OF STARTED AT THE
BEGINNING, SAYING THAT ONE

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BEGINNING, SAYING THAT ONE
WOULD EXPECT FOR CONGRESS TO

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WOULD EXPECT FOR CONGRESS TO
GIVE THE PRESIDENT A BROADLY

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GIVE THE PRESIDENT A BROADLY
WAY IN THIS KIND OF FOREIGN

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WAY IN THIS KIND OF FOREIGN
AFFAIRS CONTEXT. AND I GUESS

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AFFAIRS CONTEXT. AND I GUESS
I’M WONDERING WHETHER YOU ALSO

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I’M WONDERING WHETHER YOU ALSO
DON’T HAVE TO CONTEND WITH THE

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DON’T HAVE TO CONTEND WITH THE
ACTUAL PURPOSE OF IIPA IN

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ACTUAL PURPOSE OF IIPA IN
MAKING THIS ARGUMENT, BECAUSE,

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MAKING THIS ARGUMENT, BECAUSE,
AS I UNDERSTAND IT, THAT THE

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AS I UNDERSTAND IT, THAT THE
IIPA WAS DESIGNED AND INTENDED

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IIPA WAS DESIGNED AND INTENDED
TO LIMIT PRESIDENTIAL AUTHORITY,

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TO LIMIT PRESIDENTIAL AUTHORITY,
THAT CONGRESS WAS CONCERNED

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THAT CONGRESS WAS CONCERNED
ABOUT HOW PRESIDENTS HAD BEEN

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ABOUT HOW PRESIDENTS HAD BEEN
USING THE AUTHORITY UNDER THE

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USING THE AUTHORITY UNDER THE
PREDECESSORS PREDECESSORS

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PREDECESSORS PREDECESSORS
STATUTE. AND IT’S PRETTY CLEAR

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STATUTE. AND IT’S PRETTY CLEAR
THAT CONGRESS WAS TRYING TO

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THAT CONGRESS WAS TRYING TO
CONSTRAIN THE EMERGENCY POWERS

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CONSTRAIN THE EMERGENCY POWERS
OF THE PRESIDENT IN IIPA. SO IT

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OF THE PRESIDENT IN IIPA. SO IT
SEEMS A LITTLE INCONSISTENT TO

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SEEMS A LITTLE INCONSISTENT TO
SAY THAT WE HAVE TO INTERPRET A

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SAY THAT WE HAVE TO INTERPRET A
STATUTE THAT WAS DESIGNED TO

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STATUTE THAT WAS DESIGNED TO
CONSTRAIN PRESIDENTIAL

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CONSTRAIN PRESIDENTIAL
AUTHORITY, CONSISTENT WITH AN

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AUTHORITY, CONSISTENT WITH AN
UNDERSTANDING THAT CONGRESS

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UNDERSTANDING THAT CONGRESS
WANTED THE PRESIDENT TO HAVE

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WANTED THE PRESIDENT TO HAVE
ESSENTIALLY UNLIMITED AUTHORITY.

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ESSENTIALLY UNLIMITED AUTHORITY.
>> I DISAGREE WITH THAT,

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>> I DISAGREE WITH THAT,
BECAUSE WHAT CONGRESS ACTUALLY

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BECAUSE WHAT CONGRESS ACTUALLY
DID AS.

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DID AS.
>> WHAT PART DO YOU DISAGREE

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>> WHAT PART DO YOU DISAGREE
WITH?

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WITH?
>> I’M SORRY. WELL, I DISAGREE

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>> I’M SORRY. WELL, I DISAGREE
WITH THE NOTION THAT THEY WERE

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WITH THE NOTION THAT THEY WERE
TRYING TO CONSTRAIN THE BREADTH

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TRYING TO CONSTRAIN THE BREADTH
OF THE ACTIONS THE PRESIDENT

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OF THE ACTIONS THE PRESIDENT
MAY TAKE WHEN IT COMES TO THIS

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MAY TAKE WHEN IT COMES TO THIS
PARTICULARLY NARROW DOMAIN,

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PARTICULARLY NARROW DOMAIN,
WHICH IS, YOU KNOW, VARIOUS

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WHICH IS, YOU KNOW, VARIOUS
REGULATIONS OF TRANSACTIONS.

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REGULATIONS OF TRANSACTIONS.
>> BUT HOW CAN YOU DISAGREE

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>> BUT HOW CAN YOU DISAGREE
WITH THAT? I MEAN, THE HISTORY

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WITH THAT? I MEAN, THE HISTORY
IS WHAT IT IS.

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IS WHAT IT IS.
>> BECAUSE THEY MADE A SERIES

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>> BECAUSE THEY MADE A SERIES
OF CHANGES TO IIPA THAT RELATE

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OF CHANGES TO IIPA THAT RELATE
TO THE TRIGGERING CONDITION, SO

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TO THE TRIGGERING CONDITION, SO
TO SPEAK, AND THE PROCEDURES

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TO SPEAK, AND THE PROCEDURES
THAT APPLY, BUT THEY DID NOT

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THAT APPLY, BUT THEY DID NOT
CHANGE THE LANGUAGE. RIGHT. BUT

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CHANGE THE LANGUAGE. RIGHT. BUT
WHAT WAS THE.

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WHAT WAS THE.
>> WHAT WAS THE INTENT OF OF

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>> WHAT WAS THE INTENT OF OF
CONGRESS IN CHANGING THE

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CONGRESS IN CHANGING THE
LANGUAGE? WASN’T IT TO

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LANGUAGE? WASN’T IT TO
CONSTRAIN PRESIDENTIAL

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CONSTRAIN PRESIDENTIAL
AUTHORITY IN THIS AREA.

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AUTHORITY IN THIS AREA.
>> TO CONSTRAIN IT IN THE

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>> TO CONSTRAIN IT IN THE
TRIGGERING CONDITIONS AND THE

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TRIGGERING CONDITIONS AND THE
PROCEDURES THAT APPLY IN.

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PROCEDURES THAT APPLY IN.
>> THE TRIGGERING THE

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>> THE TRIGGERING THE
TRIGGERING CONDITIONS AND

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TRIGGERING CONDITIONS AND
PROCEDURES THAT APPLY ARE A

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PROCEDURES THAT APPLY ARE A
MEANS TO CONSTRAIN. THAT IS HOW

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MEANS TO CONSTRAIN. THAT IS HOW
THEY WENT AROUND ABOUT

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THEY WENT AROUND ABOUT
CONSTRAINING. BUT MY POINT IS

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CONSTRAINING. BUT MY POINT IS
THAT CONGRESS ENACTED THIS

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THAT CONGRESS ENACTED THIS
LEGISLATION WITH THE INTENT OF

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LEGISLATION WITH THE INTENT OF
PREVENTING THE PRESIDENT FROM

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PREVENTING THE PRESIDENT FROM
HAVING UNLIMITED POWERS IN THIS

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HAVING UNLIMITED POWERS IN THIS
AREA. AND YOU’RE ASKING US TO

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AREA. AND YOU’RE ASKING US TO
NOW INTERPRET THAT STATUTE

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NOW INTERPRET THAT STATUTE
CONSISTENT WITH AN

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CONSISTENT WITH AN
UNDERSTANDING THAT CONGRESS

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UNDERSTANDING THAT CONGRESS
WANTED TO ALLOW THE PRESIDENT

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WANTED TO ALLOW THE PRESIDENT
TO DO PRETTY MUCH WHATEVER HE

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TO DO PRETTY MUCH WHATEVER HE
WANTED IN THIS AREA.

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WANTED IN THIS AREA.
>> CONGRESS TOOK THE LANGUAGE

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>> CONGRESS TOOK THE LANGUAGE
FROM TUIA AND ENACTED THE VERY

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FROM TUIA AND ENACTED THE VERY
SAME LANGUAGE. AND MOST

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SAME LANGUAGE. AND MOST
IMPORTANTLY, HERE, THE VERY

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IMPORTANTLY, HERE, THE VERY
SAME PHRASE REGULATED

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SAME PHRASE REGULATED
IMPORTATION IN IIPA. AND

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IMPORTATION IN IIPA. AND
THEREFORE THE NATURAL INFERENCE

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THEREFORE THE NATURAL INFERENCE
IS CONGRESS DID NOT INTEND TO

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IS CONGRESS DID NOT INTEND TO
CHANGE THE SCOPE OF AUTHORITY,

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CHANGE THE SCOPE OF AUTHORITY,
THE POWERS, THE TOOLS THE

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THE POWERS, THE TOOLS THE
PRESIDENT CAN EXERCISE.

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PRESIDENT CAN EXERCISE.
>> DID ANY PRESIDENT UNDER TUIA,

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>> DID ANY PRESIDENT UNDER TUIA,
DID ANY PRESIDENT UNDER TUIA

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DID ANY PRESIDENT UNDER TUIA
USE THAT LANGUAGE TO IMPOSE

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USE THAT LANGUAGE TO IMPOSE
TARIFFS?

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TARIFFS?
>> WELL, YES, PRESIDENT NIXON’S

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>> WELL, YES, PRESIDENT NIXON’S
1971 TARIFF.

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1971 TARIFF.
>> THAT WASN’T A TARIFF. IT WAS

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>> THAT WASN’T A TARIFF. IT WAS
A LICENSING AGREEMENT DURING

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A LICENSING AGREEMENT DURING
WAR TIME. IT WAS A SPECIFIC

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WAR TIME. IT WAS A SPECIFIC
THING. I’M TARIFF. I’M TALKING

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THING. I’M TARIFF. I’M TALKING
ABOUT.

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ABOUT.
>> I’M REFERRING TO PRESIDENT

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>> I’M REFERRING TO PRESIDENT
NIXON’S 1971.

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NIXON’S 1971.
>> I’M SORRY. EXCUSE ME. YES, I

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>> I’M SORRY. EXCUSE ME. YES, I
THOUGHT YOU MEANT LINCOLN.

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THOUGHT YOU MEANT LINCOLN.
>> NOT ONLY THAT, BUT THEN IT

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>> NOT ONLY THAT, BUT THEN IT
WAS UPHELD BY THE COURT OF

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WAS UPHELD BY THE COURT OF
APPEALS WITH EXCLUSIVE

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APPEALS WITH EXCLUSIVE
JURISDICTION UNDER THIS VERY

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JURISDICTION UNDER THIS VERY
FRAME. CAN I BACK YOU.

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FRAME. CAN I BACK YOU.
>> UP JUST A SECOND? I’M SORRY

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>> UP JUST A SECOND? I’M SORRY
YOU’RE TALKING SO QUICKLY.

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YOU’RE TALKING SO QUICKLY.
PRESIDENT NIXON DID NOT RELY ON

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PRESIDENT NIXON DID NOT RELY ON
TUIA INITIALLY TO IMPOSE THE

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TUIA INITIALLY TO IMPOSE THE
TARIFFS. IS THAT CORRECT? I

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TARIFFS. IS THAT CORRECT? I
UNDERSTOOD THAT WAS JUST A

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UNDERSTOOD THAT WAS JUST A
LITIGATING POSITION THAT HE

00:04:02.245 --> 00:04:04.646
LITIGATING POSITION THAT HE
TOOK ONCE IT WAS CHALLENGED.

00:04:04.647 --> 00:04:05.170
TOOK ONCE IT WAS CHALLENGED.
THAT WAS NOT HIS INITIAL.

00:04:05.181 --> 00:04:06.982
THAT WAS NOT HIS INITIAL.
>> I WOULDN’T PUT IT THAT WAY

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>> I WOULDN’T PUT IT THAT WAY
BECAUSE HE HAS A BROAD

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BECAUSE HE HAS A BROAD
INVOCATION. NO, I’M INVOKING

00:04:10.220 --> 00:04:11.177
INVOCATION. NO, I’M INVOKING
ALL RANGE OF STATUTES,

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ALL RANGE OF STATUTES,
SOMETHING LIKE THAT IN

00:04:12.222 --> 00:04:14.156
SOMETHING LIKE THAT IN
PROCLAMATION 4074. AND I THINK

00:04:14.157 --> 00:04:15.157
PROCLAMATION 4074. AND I THINK
THE UNDERSTANDING IS HE DIDN’T

00:04:15.158 --> 00:04:16.882
THE UNDERSTANDING IS HE DIDN’T
WANT TO KIND OF SPOOK OUR

00:04:16.893 --> 00:04:18.127
WANT TO KIND OF SPOOK OUR
ALLIES BY INVOKING THE TRADING

00:04:18.161 --> 00:04:19.084
ALLIES BY INVOKING THE TRADING
WITH THE ENEMIES ACT BY

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WITH THE ENEMIES ACT BY
INVOKING IT. BUT IN LITIGATION,