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.
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.
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 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.
"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 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.
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.
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 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.
"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.