Learning Resources, Inc. v. Trump · ¶209

The power to impose duties on imports can be delegated.At the founding, that power was regarded as one of many powers over foreign commerce that could be delegated to the President. Power over foreign commerce was not within the core legislative power, and engaging in foreign commerce was regarded as a privilege rather than a right. Early Congresses often delegated to the President power to regulate foreign commerce, including through duties on imports. As I suggested over a decade ago, the nondelegation doctrine does not apply to “a delegation of power to make rules governing private conduct in the area of foreign trade,” including rules imposing duties on imports. Department of Transportation v. Association of American Railroads, 575 U. S. 43, 80–81, n. 5 (2015) (opinion concurring in judgment). Therefore, to the extent that the Court relies on “ `separation of powers principles' ” to…

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