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 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?
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.
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.
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 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.
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 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?
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.
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.
"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.
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 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.
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.
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.