Friday's 6-3 ruling reflects an emphatic repudiation of a specific claim of delegated statutory authority by the Trump administration. Folks should be wary about reading it as more—or less—than that.
MQD will loom large for SCOTUS in upcoming decisions on what federal agencies can do, in employing domain expertise to achieve what's "dictated" by Congressional acts.
In the future, this case will (I'd guess) be cited (and taught!) more so due to that aspect than the tariff part, overall. (TBD; just one thought...)
Basically, Barrett (4-page opinion; Roberts seems to have similar take here, and perhaps in future, with Barrett?) states the "innovation" (her pushback to Gorsuch's 46-page separate opinion) of using THIS as a precedent for future MQD decisions (let alone of establishing any constituional-ish argument tying in to the non-delegation question...) is -- a total non-starter, for her. What remains is: she writes of "less obvious clues" sufficient to validate broad delegations -- and that is both (1) doing enormous work, and (2) leaving the rest of us nail-biting -- because she never fully defines what counts as a clue, how many are needed, or how strong they must be.
You're 100% right that this is the correct result but is one by a court whose habitual majority has been the most significant danger to Stare Decisis, to the Bill of Rights and to the balance of powers between the Executive, the other two constituted branches and the grossly underrepresented People. The insistence of Roberts/Gorsuch/Barrett on adding the unnecessary MQD to the factors means that every time it wants to give a free pass to this reflexively overreaching president, the next thing to an iipsi dixit that a major question isn't involved will suffice to let most even putative delegations slip under the stile, to the accretion of ever more executive power.
It seems obvious that a substantial delay by the US Supreme Court in addressing the legality of levying questionable import tariffs would foreseeably result in large pool of tariff money accumulating. And, that the question of what happens to that pool of money would certainly follow the tariffs' invalidation. Was there any way the aggrieved parties here could have accelerated consideration of the issue by the Supreme Court? Did they try? Going forward, given the "messy" question of what happens to improperly levied tariff money, might the Supreme Court be motivated to fast-track in the future its review of the Executive's next imaginative use of tariff statutes? Or, perhaps, fast-track its review of a specious 48-hour investigation and report justifying the levying of tariffs by the Executive under a more constrained and time-limited tariff statute?
The Court of International Trade ruled that the tariffs were invalid on May 28, 2025. The District Court decision to the same effect (which the Supreme Court ordered to be vacated) was the next day. (Ironically this was the Learning Resources case that gave the case its name in the Supreme Court.) The DC Court of Appeals decision affirming the result came down on August 29, 2025. The delay between August 29, 2025, and February 20, 2026, was in the Supreme Court. In fact the case was argued on November 5, 2025, and the Justices obviously knew what the result would be well before February 20, 2026. The only reason that tariffs were collected between May 28, 2025, and February 20, 2026 (268 days) was that a correct decision was stayed during that period.
And as far as prospective only application is concerned, what about the parties that brought the original cases? Shouldn't they get refunds? Normally a prospective only decision applies to the parties in the case. Is a prisoner who successfully appeals a death sentence to be executed because the decision is to have only prospective application? And what about parties that sued for refunds before the Supreme Court decision came down? And what about parties that could have taken part in the two cases but did not because they had enough parties to assure that they had standing? Or parties that considered bringing additional cases but decided that it was unnecessary?
And suppose that the courts rule against refunds and Trump imposes the tariffs all over again on the same basis and collects the money while the cases proceed through the courts once again? Not such a crazy notion with a "justice" department that has ignored court orders in other cases. Prospective relief only again?
Supreme Court decisions should have consequences. Otherwise they become nothing more than advisory opinions (which the Supreme Court is not allowed to render).
Excellent analysis and discussion, Si. You’ve raised issues here that are worthy of long form discussions from scholars and practitioners alike. Thank you.
I should add that the Supreme Court delay was obviously caused by allowing time for the preparation of all the separate opinions (primarily I would think those of Justices Gorsuch and Kavanaugh). Should people who paid the invalid tariffs during that delay be out of pocket because of that delay? The Court could have released the majority opinion (and any others that were ready) without waiting (as it has occasionally done in the past) -- or at least have announced the result with an appropriate order. Some companies that paid substantial amounts of tariffs sued for refunds during that delay. Should they be out of pocket even more than they were when they sued?
My question as I’ve tracked this case was the fate of the collected tariffs. Does the Administration keep those “billions and billions” of dollars? Should importers be reimbursed? Most reports take it as a given that the money would be reimbursed back to the importers who had paid them. But I find it hard to believe those importers didn’t pass that cost down the stream of commerce. (It’s somewhat reminds me of the Debeers diamond litigation from the 90s, where diamond importers and retailers took the lion’s share of the settlement fund, even though consumers were the ones who had ultimately absorbed the artificially high price.)
First, this group of opinions seems to emphasize that we have a very deeply divided Court that will have difficulty deciding difficult cases. This was not a difficult case to decide.
Second, I share the skepticism about MQD and have thought that it was really conceived as a flexible tool to rule for favored policies and against disfavored policies. I am wearily pleased that there was a 6-vote majority to apply roughly the same rules to Trump as the Court applied to Biden.
Steve's pointed comments about abdication by Congress are right on point. Congress has all the authority it needs to eliminate any chaos resulting from this decision and to create more clear rules surrounding the President's tariff authority. As has been made clear by this episode, laws passed by past Congresses on the subject are a complete mess.
The second point is what resonates for me. For once, sauce for the goose is sauce for the gander. Also true for the TX/CA redistricting cases. They’re figuring out where they’re exposed.
Cogent analysis as always, thank you. I particularly liked the (perhaps too polite) way you singled out Kananaugh's foray into "consequentialism" as a guide to interpreting federal statutes, which plainly deserves ridicule. That part of his dissent will remain a standing joke in law schools for decades to come.
Come to think of it, if Kavanaugh had been on the Hughes court in the 1930s, do you think he would have discovered his droll doctrine of "consequentialism" and applied it in Schechter Poultry Corp. v. United States (1935) and Panama Refining Co. v. Ryan (also 1935)? Nope, not a chance. His "consequentialism" works only one way: to keep in force any boneheaded policy Mr Trump dreams up.
Take the win (assuming going forward that they adhere to the fundamental points).
It’s noteworthy maybe that Kagan’s and Barrett’s shared focus on statutory construction derives from their being the only two former law professors on the court.
"Although one reading of the Court’s behavior on emergency applications is that it’s in the bag for Trump, there’s an equally plausible reading in which it isn’t, and is granting emergency relief in so many of these cases for deeply problematic reasons unrelated to a conclusive view of the merits. If that’s accurate, then there’s every reason to treat the Court’s “merits” cases involving Trump (of which this is the first) as belonging to an entirely different category from the emergency applications."
Thank you for this clarifying analysis. It was very helpful.
It would be remarkably cheeky of the Chief Justice to admonish the president not to call everything an emergency at this point.
That being said, the President's reaction to being told no is quite scary.
"It would be remarkably cheeky of the Chief Justice to admonish the president not to call everything an emergency at this point."
It's a slippery slope, that. Next the court might express skepticism about "national security." Even "foreign affairs" might come into question. Require a definition of "emergency" that might limit it to the sudden and extraordinary? Can't have that.
To a legal auslander the scholastic debate over the meaning of "regulate" resembles arguments over angels and pinheads that neglects a small detail: no angels have been shown to exist. The name of the act includes the word "emergency." The case fails a BS test on that alone. Not that that ever stopped legalistic disputation.
Incidentally, when would the seemly period of cheekiness demurral expire? Perhaps after deployment of "poll monitors" because of an alleged but unreviewable "national security" emergency of undocumented voters? After first blocking lower court rulings against the administration? Then issuing a sternly worded ruling a year later, post-"election," without retrospective remedy? While establishing for the public that Roberts is an honorable man? Scalia lives!
Pardon the Swiftian excess, but ask yourself if it's really all that surprising that after years of sophism enabling an arbitrary, unaccountable "unitary" executive and vouchsafing presidential impunity, a megalomaniacal president whose mainspring is relentless aggrandizement via boundary violation, answers no with no? If the court can elevate "money is speech" to a protected first, or First, principle, with blithe unconcern for research, for data, for history, for consequences, why bother such beautiful minds over an imperial (and ostentatiously corrupt) presidency? What could possibly go wrong?
Under no circumstances let's be cheeky!
The decision went much as expected. Vintage Roberts. He looks principled in the headlines while ruling narrowly, winking at backdoors left ajar (procedural sleights of hand, the shadow docket, "foreign affairs"), where Kavanaugh waves and shouts, "Kegger!" The revanchists Thomas and Alito were always gonna revanche. What took so long was coming up with wording to safeguard precious—capitalize the "p" if you like—doctrines like "major questions" and (Republican) executive primus inter (notional) pares. He did not disappoint.
Honest, I'm not picking on the comment I'm replying to. I'm just riffing on the use of "cheeky." It reminds me of the meme of the insouciant fellow in a burning room with the caption "This is fine!"
Interesting idea ("Chief Justice to admonish the president not to call everything an emergency").
SCOTUS really should unanimously admonish Trump, as John Adams (later our first Vice President and our second President) put it in the Massachusetts Constitution of 1780, and as Chief Justice John Marshall (writing for SCOTUS) reminded us in Marbury v. Madison in 1803 when Thomas Jefferson was president, and as Justice Scalia reminded us in his dissenting opinion in Morrison v. Olson in 1988 (after Reagan had been president for most of two terms), ours is “a government of laws, and not of men.”
SCOTUS really should unanimously admonish Trump of something else that Justice Scalia in 1988 in Morrison v. Olson also emphasized. He highlighted a vital, self-evident truth of which too many seem to have lost sight since James Madison emphasized it in 1788 in Federalist No. 47: “it is not [even] possible to give to each department [legislative, executive and judicial] equal power [ ]. In republican government, the legislative authority necessarily predominates.”
Trump's tariff tantrums highlight the danger of SCOTUS justices presuming or pretending that our Constitution isn't the paramount law in the supreme law of the land that governs them as much as him. It's enlightening to see what our Constitution actually says about "necessity" and "necessary" and how such assertions are meant to be addressed, including specifically regarding imposts and duties on imports.
Articles I and II expressly address how the executive power and the legislative power are required by the People by our Constitution to work together to represent the people and "to support [our] Constitution" (Article VI). Powers were separated and woven together into a fabric of government, all of which must serve "to support [our] Constitution."
The President must “give to the Congress Information” and “recommend to their Consideration such Measures as he shall judge necessary and expedient.” If the president thinks tariffs are "necessary and expedient," he must make the case to Congress. If he needs help making his case, “he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices.”
Congress must “make all Laws” that are “necessary and proper for carrying into Execution” absolutely all” the “Powers” that the People “vested” in anyone “by this Constitution.” The President must “approve [Every Bill and] sign it” or “return it, with his Objections.” Congress must address or override the President’s objections. After Congress has done so, the Bill “shall become a Law” and the President “shall take Care that the Laws be faithfully executed.”
The very first enumerated power of Congress in Article I, Section 8 is “To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.”
Article I, Section 10 also specifically prohibited related powers or reserved related powers to the states. It also emphasized a crucial principle: some measures are constitutional without congressional authorization only if "absolutely necessary." “No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.”
All powers of the president necessarily are limited to those that are necessary to fulfill his oath to "preserve, protect and defend [our] Constitution." Such powers (as regarding Trump's usurpation of the power to impose tariffs or commit acts of war) must be seen as analogous to the powers of state officials do whatever was necessary in 1788-1790 to fulfill their oaths "to support [our] Constitution" by exercising the foregoing powers and others in Section 10:
"No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay."
Thank you for the article, Steve I had two years of college experience. My professors warned each student that someone is going to try and tarriffs, on this nation. It’s my hope the SCOTUS continues to give rulings that are prevalent to the people of this nation. Instead of the President thinking it’s his court and no others! Today I am praying for this always. Please subscribe to One Nation!
Amendment X limits the US level of government to powers the Constitution expresses, or at least implies with strong support.
No text vests in Congress power to revest their own powers. No preambular mandate (or clause) requires it. No implication can be found in the text.
Nor do I believe FDR had no better option to defeat a blockade by a rich, corrupt Congress. Had he instead told the people to channel their rage into getting rid of rich, corrupt Congresses by demanding 100% public, nonpartisan nominations & 100% public campaign funding, we'd have a functioning Congress today and nothing like this administration would be possible.
The most significant part of the decision is what happened after it.
Plaintiff did two things they should never do:
They let the Court take a side.
They let the Court dictate the terms.
The Respondent and the Court share a political party that couldn’t afford to win on tariffs but wanted Respondent to lose as little as possible. Plaintiff obliged and went for a very narrow win “to build on.” They won on a fraction of one statute. The Respondent immediately made new tariffs on a different statute.
But there is no need to build. That lets the Court delay the end of the game while inflicting as much damage as possible.
All the tariffs cases should have been joined.
All the vague-language statutory revestitures of Congress’ legislative power to presidents should have been joined.
All the clear statutory revestitures of legislative powers should have been joined, and joined to these.
All the self-granted, and all the judge-made, presidential powers to legislate should have been joined to the above.
Finally, all the revested or self-granted or judge-made regulatory powers in the executive branch should have been joined, and joined to the others.
There is only one question in this set of cases:
Whether presidents may legislate, in any area, by any means.
It’s still a narrow question.
It files by subject matter (whether the executive can exercise legislative powers).
Filing by manner (whether legislative powers can be revested or created, by statute or ruling or self-grant) is a separate narrow question joining an overlapping set of cases.
That would be two cases instead of however many (many!). It would cut to the chase somewhat for easier, more obvious adjudication.
But there would still be two cases on two narrow questions, where a broader question, whether Congress’ powers can be transferred or created absent textual expression, is the easiest to decide of all. Amendment X bars it absolutely.
Absent textual expression Congress’ powers are to be exercised by Congress. If they refuse, the Speaker of the House and President of the Senate are to be impeached, tried, and removed. If their replacements refuse, this is repeated, until the people have a functioning legislature.
This goes for the other branches too, of course. The broad question is, does the Constitution impose a separation of powers? The answer is yes.
The administration argument about the wild success of the tariffs and its prediction of doomsday should they be struck down certainly seem to have backfired. To the CJ, these boasts and dire prognostications became indicators of just how major this doctrinal question would be. Oops.
Exactly right! Trump's tariff tantrums highlight that Congress must act to make related laws because they clearly are "necessary and proper."
For very good reason, Article I, Section 8 of our Constitution concluded by emphasizing that Congress, alone, has the power “To make all Laws” that are “necessary and proper for carrying into Execution [Congress’s enumerated] Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof,” i.e., in the executive or judicial branches.
Articles I and II of our Constitution show generally how the executive power and the legislative power are required by the People by our Constitution to work together to represent the people and support our Constitution. Powers were separated and woven together into a fabric of government. The President must “give to the Congress Information” and “recommend to their Consideration such Measures as he shall judge necessary and expedient.” Congress must “make all Laws” that are “necessary and proper for carrying into Execution” absolutely all” the “Powers” that the People “vested” in anyone “by this Constitution.” The President must “approve [Every Bill and] sign it” or “return it, with his Objections.” Congress must address or override the President’s objections. After Congress has addressed or overridden the President's objections, the Bill “shall become a Law” and the President “shall take Care that the Laws be faithfully executed.”
The foregoing illustrates how ours is “a government of laws, and not of men,” as John Adams put it in the Massachusetts Constitution of 1780, as Chief Justice John Marshall (writing for SCOTUS) reminded us in Marbury v. Madison in 1803, and as Justice Scalia reminded us in his dissenting opinion in Morrison v. Olson in 1988.
It’s seems if Kavanaugh is concerned about economic consequences, then perhaps the Court should have stayed Trump’s use of the tariffs while it considered the merits.
Thank you for the excellent analysis. I was pleased with the ruling, but aware that there were many backdoors to accomplish what trump desires. Congress must be forced from their stupor and act to ensure our country remains competitive and solvent and well as supporting the residents.
The Kavanaugh marker to be the CJ, if Roberts leaves during Trump's term, was most interesting to me, as the CJ hammered his dissenting Opinion. MQD as interpretive (Barrett), or separation of powers canon (Gorsuch), when congressional majorities are slim, is reality vs academic theory (even if the latter has substantive theoretical merit if Art 1 in these periods, is not to be a de facto delegation to Art 2). Politically, global tariffs under IEPPA made sense temporally as a power play. The expected SCOTUS loss might reduce inflation driven by the tariffs in an election year, while temporally giving the President the unitary authority he craves. The problem is what those who may have planned this strategy as the necessary fallback, is not accepted by this President, who can't take a win for the team, as opposed to himself. It is still likely the Republicans will hold the Senate, but if not, McConnell's long-term judicial strategy might come apart and Kavanaugh's marker would be a nullity.
MQD will loom large for SCOTUS in upcoming decisions on what federal agencies can do, in employing domain expertise to achieve what's "dictated" by Congressional acts.
In the future, this case will (I'd guess) be cited (and taught!) more so due to that aspect than the tariff part, overall. (TBD; just one thought...)
Basically, Barrett (4-page opinion; Roberts seems to have similar take here, and perhaps in future, with Barrett?) states the "innovation" (her pushback to Gorsuch's 46-page separate opinion) of using THIS as a precedent for future MQD decisions (let alone of establishing any constituional-ish argument tying in to the non-delegation question...) is -- a total non-starter, for her. What remains is: she writes of "less obvious clues" sufficient to validate broad delegations -- and that is both (1) doing enormous work, and (2) leaving the rest of us nail-biting -- because she never fully defines what counts as a clue, how many are needed, or how strong they must be.
You're 100% right that this is the correct result but is one by a court whose habitual majority has been the most significant danger to Stare Decisis, to the Bill of Rights and to the balance of powers between the Executive, the other two constituted branches and the grossly underrepresented People. The insistence of Roberts/Gorsuch/Barrett on adding the unnecessary MQD to the factors means that every time it wants to give a free pass to this reflexively overreaching president, the next thing to an iipsi dixit that a major question isn't involved will suffice to let most even putative delegations slip under the stile, to the accretion of ever more executive power.
It seems obvious that a substantial delay by the US Supreme Court in addressing the legality of levying questionable import tariffs would foreseeably result in large pool of tariff money accumulating. And, that the question of what happens to that pool of money would certainly follow the tariffs' invalidation. Was there any way the aggrieved parties here could have accelerated consideration of the issue by the Supreme Court? Did they try? Going forward, given the "messy" question of what happens to improperly levied tariff money, might the Supreme Court be motivated to fast-track in the future its review of the Executive's next imaginative use of tariff statutes? Or, perhaps, fast-track its review of a specious 48-hour investigation and report justifying the levying of tariffs by the Executive under a more constrained and time-limited tariff statute?
Good point.
And courts seem to agree private debts must be repaid. We're the wealthiest nation in history. Is the USA supposed to become a deadbeat?
To expand on this point.
The Court of International Trade ruled that the tariffs were invalid on May 28, 2025. The District Court decision to the same effect (which the Supreme Court ordered to be vacated) was the next day. (Ironically this was the Learning Resources case that gave the case its name in the Supreme Court.) The DC Court of Appeals decision affirming the result came down on August 29, 2025. The delay between August 29, 2025, and February 20, 2026, was in the Supreme Court. In fact the case was argued on November 5, 2025, and the Justices obviously knew what the result would be well before February 20, 2026. The only reason that tariffs were collected between May 28, 2025, and February 20, 2026 (268 days) was that a correct decision was stayed during that period.
And as far as prospective only application is concerned, what about the parties that brought the original cases? Shouldn't they get refunds? Normally a prospective only decision applies to the parties in the case. Is a prisoner who successfully appeals a death sentence to be executed because the decision is to have only prospective application? And what about parties that sued for refunds before the Supreme Court decision came down? And what about parties that could have taken part in the two cases but did not because they had enough parties to assure that they had standing? Or parties that considered bringing additional cases but decided that it was unnecessary?
And suppose that the courts rule against refunds and Trump imposes the tariffs all over again on the same basis and collects the money while the cases proceed through the courts once again? Not such a crazy notion with a "justice" department that has ignored court orders in other cases. Prospective relief only again?
Supreme Court decisions should have consequences. Otherwise they become nothing more than advisory opinions (which the Supreme Court is not allowed to render).
Excellent analysis and discussion, Si. You’ve raised issues here that are worthy of long form discussions from scholars and practitioners alike. Thank you.
I should add that the Supreme Court delay was obviously caused by allowing time for the preparation of all the separate opinions (primarily I would think those of Justices Gorsuch and Kavanaugh). Should people who paid the invalid tariffs during that delay be out of pocket because of that delay? The Court could have released the majority opinion (and any others that were ready) without waiting (as it has occasionally done in the past) -- or at least have announced the result with an appropriate order. Some companies that paid substantial amounts of tariffs sued for refunds during that delay. Should they be out of pocket even more than they were when they sued?
My question as I’ve tracked this case was the fate of the collected tariffs. Does the Administration keep those “billions and billions” of dollars? Should importers be reimbursed? Most reports take it as a given that the money would be reimbursed back to the importers who had paid them. But I find it hard to believe those importers didn’t pass that cost down the stream of commerce. (It’s somewhat reminds me of the Debeers diamond litigation from the 90s, where diamond importers and retailers took the lion’s share of the settlement fund, even though consumers were the ones who had ultimately absorbed the artificially high price.)
First, this group of opinions seems to emphasize that we have a very deeply divided Court that will have difficulty deciding difficult cases. This was not a difficult case to decide.
Second, I share the skepticism about MQD and have thought that it was really conceived as a flexible tool to rule for favored policies and against disfavored policies. I am wearily pleased that there was a 6-vote majority to apply roughly the same rules to Trump as the Court applied to Biden.
Steve's pointed comments about abdication by Congress are right on point. Congress has all the authority it needs to eliminate any chaos resulting from this decision and to create more clear rules surrounding the President's tariff authority. As has been made clear by this episode, laws passed by past Congresses on the subject are a complete mess.
The second point is what resonates for me. For once, sauce for the goose is sauce for the gander. Also true for the TX/CA redistricting cases. They’re figuring out where they’re exposed.
100% public, nonpartisan elections and 100% public campaign funding.
Cogent analysis as always, thank you. I particularly liked the (perhaps too polite) way you singled out Kananaugh's foray into "consequentialism" as a guide to interpreting federal statutes, which plainly deserves ridicule. That part of his dissent will remain a standing joke in law schools for decades to come.
I hope you are correct about this. Bret is beyond redemption.
Come to think of it, if Kavanaugh had been on the Hughes court in the 1930s, do you think he would have discovered his droll doctrine of "consequentialism" and applied it in Schechter Poultry Corp. v. United States (1935) and Panama Refining Co. v. Ryan (also 1935)? Nope, not a chance. His "consequentialism" works only one way: to keep in force any boneheaded policy Mr Trump dreams up.
Take the win (assuming going forward that they adhere to the fundamental points).
It’s noteworthy maybe that Kagan’s and Barrett’s shared focus on statutory construction derives from their being the only two former law professors on the court.
I believe that the Portal to Portal Act was upheld in one circuit court and never reached the Supremes.
The refunds that worried Kavanugh would not be so great if the Court had decided the case more promptly.
In the overall scheme of things, they’re really not that big. You have to think about the global picture.
I agree wholeheartedly. I’m sure courts will make the decision prospective
"Although one reading of the Court’s behavior on emergency applications is that it’s in the bag for Trump, there’s an equally plausible reading in which it isn’t, and is granting emergency relief in so many of these cases for deeply problematic reasons unrelated to a conclusive view of the merits. If that’s accurate, then there’s every reason to treat the Court’s “merits” cases involving Trump (of which this is the first) as belonging to an entirely different category from the emergency applications."
Thank you for this clarifying analysis. It was very helpful.
It would be remarkably cheeky of the Chief Justice to admonish the president not to call everything an emergency at this point.
That being said, the President's reaction to being told no is quite scary.
"It would be remarkably cheeky of the Chief Justice to admonish the president not to call everything an emergency at this point."
It's a slippery slope, that. Next the court might express skepticism about "national security." Even "foreign affairs" might come into question. Require a definition of "emergency" that might limit it to the sudden and extraordinary? Can't have that.
To a legal auslander the scholastic debate over the meaning of "regulate" resembles arguments over angels and pinheads that neglects a small detail: no angels have been shown to exist. The name of the act includes the word "emergency." The case fails a BS test on that alone. Not that that ever stopped legalistic disputation.
Incidentally, when would the seemly period of cheekiness demurral expire? Perhaps after deployment of "poll monitors" because of an alleged but unreviewable "national security" emergency of undocumented voters? After first blocking lower court rulings against the administration? Then issuing a sternly worded ruling a year later, post-"election," without retrospective remedy? While establishing for the public that Roberts is an honorable man? Scalia lives!
Pardon the Swiftian excess, but ask yourself if it's really all that surprising that after years of sophism enabling an arbitrary, unaccountable "unitary" executive and vouchsafing presidential impunity, a megalomaniacal president whose mainspring is relentless aggrandizement via boundary violation, answers no with no? If the court can elevate "money is speech" to a protected first, or First, principle, with blithe unconcern for research, for data, for history, for consequences, why bother such beautiful minds over an imperial (and ostentatiously corrupt) presidency? What could possibly go wrong?
Under no circumstances let's be cheeky!
The decision went much as expected. Vintage Roberts. He looks principled in the headlines while ruling narrowly, winking at backdoors left ajar (procedural sleights of hand, the shadow docket, "foreign affairs"), where Kavanaugh waves and shouts, "Kegger!" The revanchists Thomas and Alito were always gonna revanche. What took so long was coming up with wording to safeguard precious—capitalize the "p" if you like—doctrines like "major questions" and (Republican) executive primus inter (notional) pares. He did not disappoint.
Honest, I'm not picking on the comment I'm replying to. I'm just riffing on the use of "cheeky." It reminds me of the meme of the insouciant fellow in a burning room with the caption "This is fine!"
Interesting idea ("Chief Justice to admonish the president not to call everything an emergency").
SCOTUS really should unanimously admonish Trump, as John Adams (later our first Vice President and our second President) put it in the Massachusetts Constitution of 1780, and as Chief Justice John Marshall (writing for SCOTUS) reminded us in Marbury v. Madison in 1803 when Thomas Jefferson was president, and as Justice Scalia reminded us in his dissenting opinion in Morrison v. Olson in 1988 (after Reagan had been president for most of two terms), ours is “a government of laws, and not of men.”
SCOTUS really should unanimously admonish Trump of something else that Justice Scalia in 1988 in Morrison v. Olson also emphasized. He highlighted a vital, self-evident truth of which too many seem to have lost sight since James Madison emphasized it in 1788 in Federalist No. 47: “it is not [even] possible to give to each department [legislative, executive and judicial] equal power [ ]. In republican government, the legislative authority necessarily predominates.”
Trump's tariff tantrums highlight the danger of SCOTUS justices presuming or pretending that our Constitution isn't the paramount law in the supreme law of the land that governs them as much as him. It's enlightening to see what our Constitution actually says about "necessity" and "necessary" and how such assertions are meant to be addressed, including specifically regarding imposts and duties on imports.
Articles I and II expressly address how the executive power and the legislative power are required by the People by our Constitution to work together to represent the people and "to support [our] Constitution" (Article VI). Powers were separated and woven together into a fabric of government, all of which must serve "to support [our] Constitution."
The President must “give to the Congress Information” and “recommend to their Consideration such Measures as he shall judge necessary and expedient.” If the president thinks tariffs are "necessary and expedient," he must make the case to Congress. If he needs help making his case, “he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices.”
Congress must “make all Laws” that are “necessary and proper for carrying into Execution” absolutely all” the “Powers” that the People “vested” in anyone “by this Constitution.” The President must “approve [Every Bill and] sign it” or “return it, with his Objections.” Congress must address or override the President’s objections. After Congress has done so, the Bill “shall become a Law” and the President “shall take Care that the Laws be faithfully executed.”
The very first enumerated power of Congress in Article I, Section 8 is “To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.”
Article I, Section 10 also specifically prohibited related powers or reserved related powers to the states. It also emphasized a crucial principle: some measures are constitutional without congressional authorization only if "absolutely necessary." “No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.”
All powers of the president necessarily are limited to those that are necessary to fulfill his oath to "preserve, protect and defend [our] Constitution." Such powers (as regarding Trump's usurpation of the power to impose tariffs or commit acts of war) must be seen as analogous to the powers of state officials do whatever was necessary in 1788-1790 to fulfill their oaths "to support [our] Constitution" by exercising the foregoing powers and others in Section 10:
"No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay."
Thank you for the article, Steve I had two years of college experience. My professors warned each student that someone is going to try and tarriffs, on this nation. It’s my hope the SCOTUS continues to give rulings that are prevalent to the people of this nation. Instead of the President thinking it’s his court and no others! Today I am praying for this always. Please subscribe to One Nation!
Amendment X limits the US level of government to powers the Constitution expresses, or at least implies with strong support.
No text vests in Congress power to revest their own powers. No preambular mandate (or clause) requires it. No implication can be found in the text.
Nor do I believe FDR had no better option to defeat a blockade by a rich, corrupt Congress. Had he instead told the people to channel their rage into getting rid of rich, corrupt Congresses by demanding 100% public, nonpartisan nominations & 100% public campaign funding, we'd have a functioning Congress today and nothing like this administration would be possible.
The most significant part of the decision is what happened after it.
Plaintiff did two things they should never do:
They let the Court take a side.
They let the Court dictate the terms.
The Respondent and the Court share a political party that couldn’t afford to win on tariffs but wanted Respondent to lose as little as possible. Plaintiff obliged and went for a very narrow win “to build on.” They won on a fraction of one statute. The Respondent immediately made new tariffs on a different statute.
But there is no need to build. That lets the Court delay the end of the game while inflicting as much damage as possible.
All the tariffs cases should have been joined.
All the vague-language statutory revestitures of Congress’ legislative power to presidents should have been joined.
All the clear statutory revestitures of legislative powers should have been joined, and joined to these.
All the self-granted, and all the judge-made, presidential powers to legislate should have been joined to the above.
Finally, all the revested or self-granted or judge-made regulatory powers in the executive branch should have been joined, and joined to the others.
There is only one question in this set of cases:
Whether presidents may legislate, in any area, by any means.
It’s still a narrow question.
It files by subject matter (whether the executive can exercise legislative powers).
Filing by manner (whether legislative powers can be revested or created, by statute or ruling or self-grant) is a separate narrow question joining an overlapping set of cases.
That would be two cases instead of however many (many!). It would cut to the chase somewhat for easier, more obvious adjudication.
But there would still be two cases on two narrow questions, where a broader question, whether Congress’ powers can be transferred or created absent textual expression, is the easiest to decide of all. Amendment X bars it absolutely.
Absent textual expression Congress’ powers are to be exercised by Congress. If they refuse, the Speaker of the House and President of the Senate are to be impeached, tried, and removed. If their replacements refuse, this is repeated, until the people have a functioning legislature.
This goes for the other branches too, of course. The broad question is, does the Constitution impose a separation of powers? The answer is yes.
The administration argument about the wild success of the tariffs and its prediction of doomsday should they be struck down certainly seem to have backfired. To the CJ, these boasts and dire prognostications became indicators of just how major this doctrinal question would be. Oops.
Exactly right! Trump's tariff tantrums highlight that Congress must act to make related laws because they clearly are "necessary and proper."
For very good reason, Article I, Section 8 of our Constitution concluded by emphasizing that Congress, alone, has the power “To make all Laws” that are “necessary and proper for carrying into Execution [Congress’s enumerated] Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof,” i.e., in the executive or judicial branches.
Articles I and II of our Constitution show generally how the executive power and the legislative power are required by the People by our Constitution to work together to represent the people and support our Constitution. Powers were separated and woven together into a fabric of government. The President must “give to the Congress Information” and “recommend to their Consideration such Measures as he shall judge necessary and expedient.” Congress must “make all Laws” that are “necessary and proper for carrying into Execution” absolutely all” the “Powers” that the People “vested” in anyone “by this Constitution.” The President must “approve [Every Bill and] sign it” or “return it, with his Objections.” Congress must address or override the President’s objections. After Congress has addressed or overridden the President's objections, the Bill “shall become a Law” and the President “shall take Care that the Laws be faithfully executed.”
The foregoing illustrates how ours is “a government of laws, and not of men,” as John Adams put it in the Massachusetts Constitution of 1780, as Chief Justice John Marshall (writing for SCOTUS) reminded us in Marbury v. Madison in 1803, and as Justice Scalia reminded us in his dissenting opinion in Morrison v. Olson in 1988.
It’s seems if Kavanaugh is concerned about economic consequences, then perhaps the Court should have stayed Trump’s use of the tariffs while it considered the merits.
Dear Marcleesnn- my thinking exactly. Thank you
“eye-EEE-pah!!"
I have heard that Kavanaugh was permanently embittered by his confirmation hearing, and that his feelings have set him down his current path.
He’s never matured beyond the frat boy self absorption stage.
Much like Clarence Thomas, another sexual predator on this court.
Thank you for the excellent analysis. I was pleased with the ruling, but aware that there were many backdoors to accomplish what trump desires. Congress must be forced from their stupor and act to ensure our country remains competitive and solvent and well as supporting the residents.
The Kavanaugh marker to be the CJ, if Roberts leaves during Trump's term, was most interesting to me, as the CJ hammered his dissenting Opinion. MQD as interpretive (Barrett), or separation of powers canon (Gorsuch), when congressional majorities are slim, is reality vs academic theory (even if the latter has substantive theoretical merit if Art 1 in these periods, is not to be a de facto delegation to Art 2). Politically, global tariffs under IEPPA made sense temporally as a power play. The expected SCOTUS loss might reduce inflation driven by the tariffs in an election year, while temporally giving the President the unitary authority he craves. The problem is what those who may have planned this strategy as the necessary fallback, is not accepted by this President, who can't take a win for the team, as opposed to himself. It is still likely the Republicans will hold the Senate, but if not, McConnell's long-term judicial strategy might come apart and Kavanaugh's marker would be a nullity.