Justice Gorsuch's charge that the Democratic appointees are being inconsistent in how they interpret broad statutory delegations depends upon remarkably superficial analyses of numerous earlier cases.
Fair point, and I honestly don’t know. It just seems if the situation were reversed and Chuck Schumer had tried to block a Repub nominee by making up some weird “too close to the election” rule, the right would have screamed their heads off and gotten their nominee through somehow.
Justice Gorsuch says some dumb and even deceitful things sometimes--but (I think) so does every (or nearly every) SCOTUS justice. Sometimes, however, Justice Gorsuch is right, and we should see that and use it. In Learning Resources, Justice Gorsuch is right to expose Justice Thomas's deceit. But Justice Gorsuch did so even better in a dissenting opinion in which Justice Thomas (and Chief Justice Roberts) joined in 2019 in Gundy v. United States to highlight the following about the separation of powers and how it was designed to serve and support not only the liberty, but also the sovereignty, of the people.
"The framers warned us against permitting consequences like these. As Madison explained, '[t]here can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates.’” The framers knew . . . [that] enforcing the separation of powers isn’t about protecting institutional prerogatives or governmental turf. It’s about respecting the people’s sovereign choice to vest the legislative power in Congress alone. And it’s about safeguarding a structure designed to protect their liberties, minority rights, fair notice, and the rule of law. So when a case or controversy comes within the judicial competence, the Constitution does not permit judges to look the other way; we must call foul when the constitutional lines are crossed. Indeed, the framers afforded us independence from the political branches in large part to encourage exactly this kind of 'fortitude . . . to do [our] duty as faithful guardians of the Constitution.' ”
"Our founding document begins by declaring that 'We the People . . . ordain and establish this Constitution.' At the time, that was a radical claim, an assertion that sovereignty belongs not to a person or institution or class but to the whole of the people. From that premise, the Constitution proceeded to vest the authority to exercise different aspects of the people’s sovereign power in distinct entities. In Article I, the Constitution entrusted all of the federal government’s legislative power to Congress. In Article II, it assigned the executive power to the President. And in Article III, it gave independent judges the task of applying the laws to cases and controversies.
To the framers, each of these vested powers had a distinct content. . . . Why did the framers insist on this particular arrangement? They believed the new federal government’s most dangerous power was the power to enact laws restricting the people’s liberty. An 'excess of law-making' was, in their words, one of 'the diseases to which our governments are most liable.' To address that tendency, the framers went to great lengths to make lawmaking difficult. In Article I, by far the longest part of the Constitution, the framers insisted that any proposed law must win the approval of two Houses of Congress—elected at different times, by different constituencies, and for different terms in office—and either secure the President’s approval or obtain enough support to override his veto. Some occasionally complain about Article I’s detailed and arduous processes for new legislation, but to the framers these were bulwarks of liberty.".
Now, consider the separation of powers issue that the majority opinion merely paid lip service to by quoting a little of Federalist No. 58 in Learning Resources:
"The [People vested in the] House of Representatives [the power to] refuse, [and vested in the House] alone [the power] propose, the supplies requisite for the support of government. [The People vested in Congress, alone, the power to] hold the purse [which is a most] powerful instrument by which we behold, in the history of the British Constitution, [the] representation of the people gradually [attaining the power of] reducing [ ] all the overgrown prerogatives of the other branches of the government [i.e., the executive and judicial branches]. This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance [against the executive or judicial branch] and for carrying into effect every just and salutary measure [including those governing the executive or judicial branches]."
"Indeed, the framers afforded us independence from the political branches in large part to encourage exactly this kind of 'fortitude . . . to do [our] duty as faithful guardians of the Constitution.' ” And yet Gorsuch and his brethren allowed this Administration to trample on the Constitution. I'm not an attorney or very knowledgable about legal matters like this but it seems the 6 justices in the majority could have months ago supported the lower courts' considered decisions and ended trump's IEEEA tariff's by denying certiorari. Likewise, they could have temporarily halted the wholesale breach of the 4th and 5th amendments of immigrant citizens until the matter is fully argued. But they didn't. I have a hard time recognizing Gorsuch when he says one thing but does another.
It's not necessary to be an attorney to understand much of our Constitution. In fact, the most difficult part of learning what our Constitution means is the part that Professor Vladeck focuses on: trying to make sense of the nonsense that SCOTUS justices too often write.
The part of the majority opinion addressing Federalist 58 and the part of the opinion of Justice Gorsuch criticizing Justice Thomas’s opinion are closest to telling the truth (being faithful to our Constitution). The opinions of Justices Thomas and Kavanaugh are worse than worthless. Their performances are truly impeachment worthy (according to our Constitution and federal criminal law establishing the meaning of "high crimes and misdemeanors").
All the opinions improperly emphasizing the “major questions doctrine” (the duty of Congress to be specific when it intends to delegate major powers) failed to address (much less be faithful to) the plain text of our Constitution and its plain purpose. The major questions doctrine is irrelevant to this issue. Moreover, it is a dangerous red herring.
The majority opinion in Learning Resources barely hinted at the truth that James Madison highlighted in Federalist No. 58:
"The [People vested in the] House of Representatives [the power to] refuse, [and vested in the House] alone [the power] propose, the supplies requisite for the support of government. [The People vested in Congress, alone, the power to] hold the purse [which is a most] powerful instrument by which we behold, in the history of the British Constitution, [the] representation of the people gradually [attaining the power of] reducing [ ] all the overgrown prerogatives of the other branches of the government [i.e., the executive and judicial branches]. This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance [against the executive or judicial branch] and for carrying into effect every just and salutary measure [including those governing the executive or judicial branches]."
The very first enumerated legislative power 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. “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.”
Article I, Section 9 also emphasized that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.”
Moreover, Article I includes a crucial and categorical limitation on even the powers of Congress relevant here. The first sentence of Section 7 emphasizes that absolutely “All Bills for raising Revenue shall originate in the House of Representatives.”
Trump, himself, insisted that tariffs were imposed to raise revenues, so he clearly illegally usurped the power to impose the tariffs that he arbitrarily made up. Trump’s current whining about SCOTUS not telling him what to do with all the revenue he raised only further highlights the illegality of what he did.
Vesting the powers to raise revenue exclusively in the House of Representatives always has been one of the most important pillars of the separation of powers between the sovereign people and all our public servants. Throughout American history, no exercise of actual or purported government power has made Americans literally fighting mad more than taking money out of their pockets.
One of the primary purposes of the entire American Revolution was to preclude “taxation without representation.” “No taxation without representation” is, to this day, the most famous rallying cry of the Revolution. To the people of the American Revolution, representation (regarding taxation) meant something specific—representation in Parliament, i.e., the body that had the power to legislate. That principle (and more) was addressed explicitly in our Constitution. To the people who wrote and ratified our Constitution, representation (regarding taxation) meant especially in the House of Representatives (hence the name).
The members of the House of Representatives are the representatives of the people who (from the outset) were most directly and most often subject to the approval or removal directly by the people. The second sentence of Article I emphasized that the people can replace any or even all the members of the House every two years: “The House of Representatives shall be composed of Members chosen every second Year by the People of the several States.” That is a crucial limitation on the power of the House to initiate laws for which we, the people, will have to pay.
Thank you, Jack, for taking the time to respond w/great detail. Sadly, if Congress fails to act in subservience to the Executive, such action is, in and of itself, a political act that reflects the apparent will of the voters. Hopefully, the will of the voters is changing. Guess we'll find out in November (assuming Trump and his supporters cannot sufficiently interfere with the election). Have a great day! Also, if you are planning to watch tonight's State of the Union, I highly recommend downloading and playing one or all of Robert Hubbell's "State of the Union BINGO" cards. It will be interesting to see how quickly the card fills up! Here's the link: https://drive.google.com/file/d/1j4rCE2gjCNrO_foV7brMzqshWpEhBMyR/view?usp=sharing
Watching Trump's Lion King video and then his State of the Union address called to mind some common sense from Thomas Paine's Common Sense: "One of the strongest natural proofs of the folly of" the concept of "kings, is, that nature disapproves it, otherwise, she would not so frequently turn [kings] into ridicule by giving mankind an ass for a lion."
I have to thank Gordon Wood for reminding us of that in his powerfully insightful, concise and fairly new summary book, "Power and Liberty: Constitutionalism in the American Revolution," which he previewed in different ways in multiple enlightening videos:
I agree he comes across as pompous. And I think he is very much colored by his mother's experiences and a Western libertarian bent (which I also see in Ds out here in the SW). But I think he is fundamentally a good & smart lawyer/justice of good character, and not mean spirited. Unlike my opinion of some others . . .
On May 28, 2025 the U.S. Court of International Trade (CIT) granted summary judgment unanimously and concluded,
"The court holds for the foregoing reasons that IEEPA does not authorize any of the
Worldwide, Retaliatory, or Trafficking Tariff Orders. The Worldwide and Retaliatory Tariff
Orders exceed any authority granted to the President by IEEPA to regulate importation by means
of tariffs. The Trafficking Tariffs fail because they do not deal with the threats set forth in those
orders. This conclusion entitles Plaintiffs to judgment as a matter of law; as the court further finds
no genuine dispute as to any material fact, summary judgment will enter against the United States."
Higher courts generally accept the lower court's findings of fact unless they have a strong possibility of overruling the case. Furthermore, the CIT is the expert among the federal courts in matters of trade, so the higher courts should not have issued stays or agreed to hear this particular case. Even worse, higher courts are supposed to weigh the potential harms of a stay versus allowing the ruling to stand. In this case, allowing clearly illegal tariffs to continue has brought us to a place where up to $175 billion has been collected, and now the federal courts will be burdened by having to figure out how to rectify that situation with possible refunds to importers and customers who were affected by the tariffs. There is also the harm in allowing a clearly illegal usurpation by Trump of the power to levy tariffs granted in the Constitution to Congress. If one accepts the dissenters argument that the IEEPA gave the President the power to regulate international trade, wouldn't that be an unconstitutional delegation of Congress's enumerated powers to lay duties and regulate commerce?
I wish Professor Vladeck or someone would try to flush out the possible legitimate rationale why both the U.S. Court of Appeals and the Supreme Court didn't decline the appeals? And in that same vein, why the Supreme Court didn't deny the appeal of the birthright citizenship case?
Sort of? The Federal Circuit has jurisdiction over a wide array of niche subject matter including trade, but the judges themselves are heavily selected for patent expertise. As someone in a different (non-patent) specialty within their ambit, I don't love the arrangment.
An appeal to the Federal Circuit is available "as of right," i.e., that court has no discretion to "decline" appeals. And given the salience of the issue and the lack of unanimity at the appellate level, it would have been unusual and, frankly, irresponsible for the high Court not to weigh in.
At the Supreme Court, yes. *They* had discretion to simply decline the case, but the Federal Circuit did not.
And as to the former's exercise of discretion, we're talking about a 7-4 decision below on a highly-charged issue within the Federal Circuit's exclusive jurisdiction (meaning there was no further opportunity for percolation in the lower courts). It would have been highly unusual, and frankly a disservice to the lower courts, for SCOTUS *not* to take the case.
Thanks for the explanation. I had forgotten about the right to appeal. It seems to me that since tariffs are an enumerated power of Congress, it should be unconstitutional for Congress to delegate that power, even under tight conditions. After all, tariffs are just a tax, so there is no real need for a speedy action. And there was certainly more reason not to issue stays at both the U.S. Court of Appeals level and the Supreme Court.
I couldn’t agree with you more. George Will’s editorial made me focus on these cases. Even just reading Will’s description of the cases it was clear that Gorsuch was making incorrect analogies. Thank you for clarifying.
TAKE THAT, Justice Gorsuch, who had the hubris necessary to focus on a Rule for The Ages, rather than what was needed -a rule for the case in front of them: United States v. Trump!
Here is a Major Question: how soon after there is a Democrat back in WH, will Roberts and Gorsuch change their thinking about Presidential Immunity?
I always thought the old “we know it when we see it”approach to obscenity would have worked for dealing with Trump’s immunity claim. “We will know a legitimate claim for immunity, when we see it; in the meantime, THIS is not it.” He was citizen Trump at that point entitled to no more deference than any other criminal defendant. It was a reasonable ruling, full of judicial economy in terms of time and complexity and one that did not threaten the destruction of the Republic!
I only have one issue with Justice Gorsuch: I can't decide if he's stupid or a liar. I don't think he's both (there is at least one SCOTUS justice I would categorize that way). Unfortunately, Prof. Vladeck's usual erudite analysis has not helped me to decide one way or the other. More data required.
However the number of pages get counted in the published opinions, Justice Kagan's opinion will carry the day, as measured against Justice Gorsuch's ramblings.
I respectfully dissent. Hard to characterize “remarkably superficial” as “remarkably polite.” I agree with Vladeck more often than not. But his tone strikes me as an academic donning the sheep’s clothing of the Left. And the substance being so wonky makes the tone seem even more strident.
Dissent with reason & rationale is one thing! Performative & expediency to fit in &/or align with the expected politics of the day is tres treasonous per “fear & favor” adage frown upon by USoA Const.
Do they know they’s inconsistent or figure they got lifetime who cares?
What makes a principle of statutory construction legitimate? Nothing in the Constitution does so. So where does their legitimacy come from? The Founders assumed certain principles of statutory construction were legitimate when they wrote the document. Those can be found in Blackstone’s Commentaries. All and only those (and any that can be derived from them) are legitimate. If the MQD is can be derived from them , it is at best superfluous; otherwise it is illegitimate and should be discarded.
If you don't mind a purely abstract question from a non-lawyer who has no idea what's in Blackstone's commentaries, stuck inside on a snowy day:
If the MQD is superfluous if its a derivative of the principles in Blackstone's commentary, wouldn't all such derivative principles be superflous? But why are they all superfluous? I can imagine that some of them have a derivation that's not immediately obvious, making it useful to explicitly acknowledge them, just as many theorems of Euclidean geometry (e.g., the Pythagorean Theorem) follow in a non-obvious way from the fundamental axioms.
Because original intent is all that matters. And if in all cases you know what the original intent was better than anyone else and perfectly well, then you don't any rules of statutory construction to go by, or Blackstone for that matter. Yea, indeed, what need have you for colleagues?
Blackstones Commentaries are on English common law. They are to that subject as Mother Goose is to fairy takes.
Yes, something can be derivative and both surprising and profound. Of course, in math or logic you must show your proof, something not provided with the major questions doctrine. It still would be superfluous in the sense that nothing it does couldn’t also be done with the other principles from which it was derived.
Thanks for your response. Out of curiosity, what's your actual opinion? Do you think the MQD can be inferred, evenly crudely, from Blackstone's Commentaries, or is it essentially independent of them?
I don’t think it’s derivative. And I don’t think statutory construction should depend on the subjective judgment of a judge about whether a question is major or minor.
Thanks again. Maybe someday I'll take a look at Blackstone's Commentaries if I don't croak first, though I spend most of my reading time in other areas closer to my background.
"As Justice Kagan put it in her dissent in West Virginia v. EPA (still my favorite argument against the major questions doctrine), “[t]he current Court is textualist only when being so suits it. When that method would frustrate broader goals, special canons like the ‘major questions doctrine’ magically appear as get-out-of-text-free cards.” Real textualism, on the other hand, is hard—and requires analysis that goes past “which President won."
Justice Kagan seems to be making a reasoned critique of what honestly feels like hypocrisy on the part of the conservative majority...a "class" of justices. Am I giving her too much credit? Perhaps.
Gorsuch's novelette feels more...targeted.
I am still taken aback by how personal it can get between individual justices. Even as a skeptical journalist with no legal expertise, I would like to believe they are better than this.
"I would like to believe they are better than this." They struck down Roe and ignore the expertise of scientists or doctors when it comes to protecting the General Welfare of the people. They prefer for people to suffer so they turned to Jesus is the only conclusion I can make, no matter how many words they use to argue to the contrary.
The level of pettiness on display should be disconcerting to anyone looking to the court for the application of wisdom.
I must confess that I was under the naive misimpression that MQD was now enshrined as precedent that the justices were bound to follow. Any clarification on that point would be welcome.
The MQD dispute seems to be another "angels on the head of a pin" discussion typical of a court whose members (except for Jackson) come from exclusively academic, law-clerk backgrounds. What is needed is less obsession with minutiae and debating points and more focus on identification and analysis of relevant considerations that enter into reaching a sound decision one way or the other--much like Justice Robert Jackson's often-cited concurrence in Youngstown Sheet and Tube. If I'm not mistaken, he was the last justice who was not a law school graduate.
The way I understand MQD is that if Congress intends to delegate its authority (like tariffs) it must do so explicitly and clearly / unambiguously. Congress did not clearly and explicitly delegate tariff authority to the executive branch in the IEEPA so his actions were unconstitutional. (IMO) This is an important separation of powers issue not minutiae. As has been pointed out, the Court might not have needed MQD to reach this result (Gorsuch could have / should have done a standard statutory interpretation) but at least we know what Gorsuch thinks about executive overreach.
The biggest inconsistency in the Gorsuch concurrence is Gorsuch's own sneaky departure from textualism.
Gorsuch seems like such a pompous ass. I’ll never get over the Dems allowing McConnell to effectively steal that seat from President Obama 😑
The seat was stolen, but how did the Ds "allow" that outcome? What could/should have been done?
how did the dems allow this
Fair point, and I honestly don’t know. It just seems if the situation were reversed and Chuck Schumer had tried to block a Repub nominee by making up some weird “too close to the election” rule, the right would have screamed their heads off and gotten their nominee through somehow.
Justice Gorsuch says some dumb and even deceitful things sometimes--but (I think) so does every (or nearly every) SCOTUS justice. Sometimes, however, Justice Gorsuch is right, and we should see that and use it. In Learning Resources, Justice Gorsuch is right to expose Justice Thomas's deceit. But Justice Gorsuch did so even better in a dissenting opinion in which Justice Thomas (and Chief Justice Roberts) joined in 2019 in Gundy v. United States to highlight the following about the separation of powers and how it was designed to serve and support not only the liberty, but also the sovereignty, of the people.
"The framers warned us against permitting consequences like these. As Madison explained, '[t]here can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates.’” The framers knew . . . [that] enforcing the separation of powers isn’t about protecting institutional prerogatives or governmental turf. It’s about respecting the people’s sovereign choice to vest the legislative power in Congress alone. And it’s about safeguarding a structure designed to protect their liberties, minority rights, fair notice, and the rule of law. So when a case or controversy comes within the judicial competence, the Constitution does not permit judges to look the other way; we must call foul when the constitutional lines are crossed. Indeed, the framers afforded us independence from the political branches in large part to encourage exactly this kind of 'fortitude . . . to do [our] duty as faithful guardians of the Constitution.' ”
"Our founding document begins by declaring that 'We the People . . . ordain and establish this Constitution.' At the time, that was a radical claim, an assertion that sovereignty belongs not to a person or institution or class but to the whole of the people. From that premise, the Constitution proceeded to vest the authority to exercise different aspects of the people’s sovereign power in distinct entities. In Article I, the Constitution entrusted all of the federal government’s legislative power to Congress. In Article II, it assigned the executive power to the President. And in Article III, it gave independent judges the task of applying the laws to cases and controversies.
To the framers, each of these vested powers had a distinct content. . . . Why did the framers insist on this particular arrangement? They believed the new federal government’s most dangerous power was the power to enact laws restricting the people’s liberty. An 'excess of law-making' was, in their words, one of 'the diseases to which our governments are most liable.' To address that tendency, the framers went to great lengths to make lawmaking difficult. In Article I, by far the longest part of the Constitution, the framers insisted that any proposed law must win the approval of two Houses of Congress—elected at different times, by different constituencies, and for different terms in office—and either secure the President’s approval or obtain enough support to override his veto. Some occasionally complain about Article I’s detailed and arduous processes for new legislation, but to the framers these were bulwarks of liberty.".
Now, consider the separation of powers issue that the majority opinion merely paid lip service to by quoting a little of Federalist No. 58 in Learning Resources:
"The [People vested in the] House of Representatives [the power to] refuse, [and vested in the House] alone [the power] propose, the supplies requisite for the support of government. [The People vested in Congress, alone, the power to] hold the purse [which is a most] powerful instrument by which we behold, in the history of the British Constitution, [the] representation of the people gradually [attaining the power of] reducing [ ] all the overgrown prerogatives of the other branches of the government [i.e., the executive and judicial branches]. This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance [against the executive or judicial branch] and for carrying into effect every just and salutary measure [including those governing the executive or judicial branches]."
"Indeed, the framers afforded us independence from the political branches in large part to encourage exactly this kind of 'fortitude . . . to do [our] duty as faithful guardians of the Constitution.' ” And yet Gorsuch and his brethren allowed this Administration to trample on the Constitution. I'm not an attorney or very knowledgable about legal matters like this but it seems the 6 justices in the majority could have months ago supported the lower courts' considered decisions and ended trump's IEEEA tariff's by denying certiorari. Likewise, they could have temporarily halted the wholesale breach of the 4th and 5th amendments of immigrant citizens until the matter is fully argued. But they didn't. I have a hard time recognizing Gorsuch when he says one thing but does another.
It's not necessary to be an attorney to understand much of our Constitution. In fact, the most difficult part of learning what our Constitution means is the part that Professor Vladeck focuses on: trying to make sense of the nonsense that SCOTUS justices too often write.
The part of the majority opinion addressing Federalist 58 and the part of the opinion of Justice Gorsuch criticizing Justice Thomas’s opinion are closest to telling the truth (being faithful to our Constitution). The opinions of Justices Thomas and Kavanaugh are worse than worthless. Their performances are truly impeachment worthy (according to our Constitution and federal criminal law establishing the meaning of "high crimes and misdemeanors").
All the opinions improperly emphasizing the “major questions doctrine” (the duty of Congress to be specific when it intends to delegate major powers) failed to address (much less be faithful to) the plain text of our Constitution and its plain purpose. The major questions doctrine is irrelevant to this issue. Moreover, it is a dangerous red herring.
The majority opinion in Learning Resources barely hinted at the truth that James Madison highlighted in Federalist No. 58:
"The [People vested in the] House of Representatives [the power to] refuse, [and vested in the House] alone [the power] propose, the supplies requisite for the support of government. [The People vested in Congress, alone, the power to] hold the purse [which is a most] powerful instrument by which we behold, in the history of the British Constitution, [the] representation of the people gradually [attaining the power of] reducing [ ] all the overgrown prerogatives of the other branches of the government [i.e., the executive and judicial branches]. This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance [against the executive or judicial branch] and for carrying into effect every just and salutary measure [including those governing the executive or judicial branches]."
The very first enumerated legislative power 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. “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.”
Article I, Section 9 also emphasized that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.”
Moreover, Article I includes a crucial and categorical limitation on even the powers of Congress relevant here. The first sentence of Section 7 emphasizes that absolutely “All Bills for raising Revenue shall originate in the House of Representatives.”
Trump, himself, insisted that tariffs were imposed to raise revenues, so he clearly illegally usurped the power to impose the tariffs that he arbitrarily made up. Trump’s current whining about SCOTUS not telling him what to do with all the revenue he raised only further highlights the illegality of what he did.
Vesting the powers to raise revenue exclusively in the House of Representatives always has been one of the most important pillars of the separation of powers between the sovereign people and all our public servants. Throughout American history, no exercise of actual or purported government power has made Americans literally fighting mad more than taking money out of their pockets.
One of the primary purposes of the entire American Revolution was to preclude “taxation without representation.” “No taxation without representation” is, to this day, the most famous rallying cry of the Revolution. To the people of the American Revolution, representation (regarding taxation) meant something specific—representation in Parliament, i.e., the body that had the power to legislate. That principle (and more) was addressed explicitly in our Constitution. To the people who wrote and ratified our Constitution, representation (regarding taxation) meant especially in the House of Representatives (hence the name).
The members of the House of Representatives are the representatives of the people who (from the outset) were most directly and most often subject to the approval or removal directly by the people. The second sentence of Article I emphasized that the people can replace any or even all the members of the House every two years: “The House of Representatives shall be composed of Members chosen every second Year by the People of the several States.” That is a crucial limitation on the power of the House to initiate laws for which we, the people, will have to pay.
Thank you, Jack, for taking the time to respond w/great detail. Sadly, if Congress fails to act in subservience to the Executive, such action is, in and of itself, a political act that reflects the apparent will of the voters. Hopefully, the will of the voters is changing. Guess we'll find out in November (assuming Trump and his supporters cannot sufficiently interfere with the election). Have a great day! Also, if you are planning to watch tonight's State of the Union, I highly recommend downloading and playing one or all of Robert Hubbell's "State of the Union BINGO" cards. It will be interesting to see how quickly the card fills up! Here's the link: https://drive.google.com/file/d/1j4rCE2gjCNrO_foV7brMzqshWpEhBMyR/view?usp=sharing
Watching Trump's Lion King video and then his State of the Union address called to mind some common sense from Thomas Paine's Common Sense: "One of the strongest natural proofs of the folly of" the concept of "kings, is, that nature disapproves it, otherwise, she would not so frequently turn [kings] into ridicule by giving mankind an ass for a lion."
I have to thank Gordon Wood for reminding us of that in his powerfully insightful, concise and fairly new summary book, "Power and Liberty: Constitutionalism in the American Revolution," which he previewed in different ways in multiple enlightening videos:
https://www.youtube.com/watch?v=KY3dYnks5GI
https://www.youtube.com/watch?v=v57quJolSvs
I agree he comes across as pompous. And I think he is very much colored by his mother's experiences and a Western libertarian bent (which I also see in Ds out here in the SW). But I think he is fundamentally a good & smart lawyer/justice of good character, and not mean spirited. Unlike my opinion of some others . . .
On May 28, 2025 the U.S. Court of International Trade (CIT) granted summary judgment unanimously and concluded,
"The court holds for the foregoing reasons that IEEPA does not authorize any of the
Worldwide, Retaliatory, or Trafficking Tariff Orders. The Worldwide and Retaliatory Tariff
Orders exceed any authority granted to the President by IEEPA to regulate importation by means
of tariffs. The Trafficking Tariffs fail because they do not deal with the threats set forth in those
orders. This conclusion entitles Plaintiffs to judgment as a matter of law; as the court further finds
no genuine dispute as to any material fact, summary judgment will enter against the United States."
Higher courts generally accept the lower court's findings of fact unless they have a strong possibility of overruling the case. Furthermore, the CIT is the expert among the federal courts in matters of trade, so the higher courts should not have issued stays or agreed to hear this particular case. Even worse, higher courts are supposed to weigh the potential harms of a stay versus allowing the ruling to stand. In this case, allowing clearly illegal tariffs to continue has brought us to a place where up to $175 billion has been collected, and now the federal courts will be burdened by having to figure out how to rectify that situation with possible refunds to importers and customers who were affected by the tariffs. There is also the harm in allowing a clearly illegal usurpation by Trump of the power to levy tariffs granted in the Constitution to Congress. If one accepts the dissenters argument that the IEEPA gave the President the power to regulate international trade, wouldn't that be an unconstitutional delegation of Congress's enumerated powers to lay duties and regulate commerce?
I wish Professor Vladeck or someone would try to flush out the possible legitimate rationale why both the U.S. Court of Appeals and the Supreme Court didn't decline the appeals? And in that same vein, why the Supreme Court didn't deny the appeal of the birthright citizenship case?
The Federal Circuit is almost as much a specialized expert in U.S. foreign trade law as the CIT.
Sort of? The Federal Circuit has jurisdiction over a wide array of niche subject matter including trade, but the judges themselves are heavily selected for patent expertise. As someone in a different (non-patent) specialty within their ambit, I don't love the arrangment.
An appeal to the Federal Circuit is available "as of right," i.e., that court has no discretion to "decline" appeals. And given the salience of the issue and the lack of unanimity at the appellate level, it would have been unusual and, frankly, irresponsible for the high Court not to weigh in.
The opinion says it was on certiorari.
At the Supreme Court, yes. *They* had discretion to simply decline the case, but the Federal Circuit did not.
And as to the former's exercise of discretion, we're talking about a 7-4 decision below on a highly-charged issue within the Federal Circuit's exclusive jurisdiction (meaning there was no further opportunity for percolation in the lower courts). It would have been highly unusual, and frankly a disservice to the lower courts, for SCOTUS *not* to take the case.
Thanks for the explanation. I had forgotten about the right to appeal. It seems to me that since tariffs are an enumerated power of Congress, it should be unconstitutional for Congress to delegate that power, even under tight conditions. After all, tariffs are just a tax, so there is no real need for a speedy action. And there was certainly more reason not to issue stays at both the U.S. Court of Appeals level and the Supreme Court.
MQD = Mighty Questionable Doctrine.
Thanks always for taking the time to share your thoughts. I learn so much from your analysis.
I couldn’t agree with you more. George Will’s editorial made me focus on these cases. Even just reading Will’s description of the cases it was clear that Gorsuch was making incorrect analogies. Thank you for clarifying.
“Remarkably superficial,” indeed. As always, you are remarkably polite, given the circumstances.
TAKE THAT, Justice Gorsuch, who had the hubris necessary to focus on a Rule for The Ages, rather than what was needed -a rule for the case in front of them: United States v. Trump!
Here is a Major Question: how soon after there is a Democrat back in WH, will Roberts and Gorsuch change their thinking about Presidential Immunity?
Maybe even before then, if Trump orders Seal Team 6 to assassinate justices Roberts, Gorsuch, and Barrett.
(That's just a joke, or at least I hope so.)
I always thought the old “we know it when we see it”approach to obscenity would have worked for dealing with Trump’s immunity claim. “We will know a legitimate claim for immunity, when we see it; in the meantime, THIS is not it.” He was citizen Trump at that point entitled to no more deference than any other criminal defendant. It was a reasonable ruling, full of judicial economy in terms of time and complexity and one that did not threaten the destruction of the Republic!
I only have one issue with Justice Gorsuch: I can't decide if he's stupid or a liar. I don't think he's both (there is at least one SCOTUS justice I would categorize that way). Unfortunately, Prof. Vladeck's usual erudite analysis has not helped me to decide one way or the other. More data required.
Nova Anglia secedenda est
However the number of pages get counted in the published opinions, Justice Kagan's opinion will carry the day, as measured against Justice Gorsuch's ramblings.
I respectfully dissent. Hard to characterize “remarkably superficial” as “remarkably polite.” I agree with Vladeck more often than not. But his tone strikes me as an academic donning the sheep’s clothing of the Left. And the substance being so wonky makes the tone seem even more strident.
Dissent with reason & rationale is one thing! Performative & expediency to fit in &/or align with the expected politics of the day is tres treasonous per “fear & favor” adage frown upon by USoA Const.
Do they know they’s inconsistent or figure they got lifetime who cares?
What makes a principle of statutory construction legitimate? Nothing in the Constitution does so. So where does their legitimacy come from? The Founders assumed certain principles of statutory construction were legitimate when they wrote the document. Those can be found in Blackstone’s Commentaries. All and only those (and any that can be derived from them) are legitimate. If the MQD is can be derived from them , it is at best superfluous; otherwise it is illegitimate and should be discarded.
If you don't mind a purely abstract question from a non-lawyer who has no idea what's in Blackstone's commentaries, stuck inside on a snowy day:
If the MQD is superfluous if its a derivative of the principles in Blackstone's commentary, wouldn't all such derivative principles be superflous? But why are they all superfluous? I can imagine that some of them have a derivation that's not immediately obvious, making it useful to explicitly acknowledge them, just as many theorems of Euclidean geometry (e.g., the Pythagorean Theorem) follow in a non-obvious way from the fundamental axioms.
Because original intent is all that matters. And if in all cases you know what the original intent was better than anyone else and perfectly well, then you don't any rules of statutory construction to go by, or Blackstone for that matter. Yea, indeed, what need have you for colleagues?
Blackstones Commentaries are on English common law. They are to that subject as Mother Goose is to fairy takes.
Thanks. I've heard about Blackstone's Commentaries, but only in a general sense.
Yes, something can be derivative and both surprising and profound. Of course, in math or logic you must show your proof, something not provided with the major questions doctrine. It still would be superfluous in the sense that nothing it does couldn’t also be done with the other principles from which it was derived.
Thanks for your response. Out of curiosity, what's your actual opinion? Do you think the MQD can be inferred, evenly crudely, from Blackstone's Commentaries, or is it essentially independent of them?
I don’t think it’s derivative. And I don’t think statutory construction should depend on the subjective judgment of a judge about whether a question is major or minor.
Thanks again. Maybe someday I'll take a look at Blackstone's Commentaries if I don't croak first, though I spend most of my reading time in other areas closer to my background.
"As Justice Kagan put it in her dissent in West Virginia v. EPA (still my favorite argument against the major questions doctrine), “[t]he current Court is textualist only when being so suits it. When that method would frustrate broader goals, special canons like the ‘major questions doctrine’ magically appear as get-out-of-text-free cards.” Real textualism, on the other hand, is hard—and requires analysis that goes past “which President won."
Justice Kagan seems to be making a reasoned critique of what honestly feels like hypocrisy on the part of the conservative majority...a "class" of justices. Am I giving her too much credit? Perhaps.
Gorsuch's novelette feels more...targeted.
I am still taken aback by how personal it can get between individual justices. Even as a skeptical journalist with no legal expertise, I would like to believe they are better than this.
"I would like to believe they are better than this." They struck down Roe and ignore the expertise of scientists or doctors when it comes to protecting the General Welfare of the people. They prefer for people to suffer so they turned to Jesus is the only conclusion I can make, no matter how many words they use to argue to the contrary.
The level of pettiness on display should be disconcerting to anyone looking to the court for the application of wisdom.
I must confess that I was under the naive misimpression that MQD was now enshrined as precedent that the justices were bound to follow. Any clarification on that point would be welcome.
The MQD dispute seems to be another "angels on the head of a pin" discussion typical of a court whose members (except for Jackson) come from exclusively academic, law-clerk backgrounds. What is needed is less obsession with minutiae and debating points and more focus on identification and analysis of relevant considerations that enter into reaching a sound decision one way or the other--much like Justice Robert Jackson's often-cited concurrence in Youngstown Sheet and Tube. If I'm not mistaken, he was the last justice who was not a law school graduate.
The way I understand MQD is that if Congress intends to delegate its authority (like tariffs) it must do so explicitly and clearly / unambiguously. Congress did not clearly and explicitly delegate tariff authority to the executive branch in the IEEPA so his actions were unconstitutional. (IMO) This is an important separation of powers issue not minutiae. As has been pointed out, the Court might not have needed MQD to reach this result (Gorsuch could have / should have done a standard statutory interpretation) but at least we know what Gorsuch thinks about executive overreach.