This morning, the nine Supreme Court justices spent 170 pages whacking the crap out of each other. Also, they declared Trump’s “emergency” tariffs illegal, which everyone who listened to oral argument knew was inevitable. The Constitution gives Congress the right to enact levies, and the International Emergency Economic Powers Act (IEEPA) does not authorize the president to unilaterally enact a constantly shifting scheme of tariffs based on whoever fails to genuflect sufficiently on any given day. No shit, dude.
The only real question was how long it would take them to publish the opinion and how ugly it would be — with length of time between argument and opinion correlating directly with cumulative vituperation.
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In the event, it took almost four months, enough time for Justice Kavanaugh to barf out four pages insisting that Trump does, too have the power to shout emergency and do whatever he wants, plus 59 pages explaining how this does not contradict the major questions doctrine. The Calvinball rule the conservative justices dummied up to restrain Democratic presidents is alive and well, he insists … just not when a Republican is in the White House.
Chief Justice Roberts, who wrote the majority/plurality opinion, spent much of it slagging Kavanaugh for parroting the Trump administration’s arguments uncritically.
“The central thrust of the Government’s and the principal dissent’s proposed exceptions appears to be that ambiguous delegations in statutes addressing ‘the most major of major questions’ should necessarily be construed broadly,” he sniffed, adding that the government’s briefs are “echoed point-for-point by the principal dissent.”
The major questions doctrine, and its freckle-faced sibling, the non-delegation doctrine, animate the entire order. Chief Justice Roberts, along with Justices Barrett and Gorsuch agree that Congress could not possibly have given Trump tariff authority without saying so with their full chest. The three liberal justices refused to join in the part of the holding based on shit conservatives just made up to ensure that the EPA couldn’t rein in polluters, although they agreed with the part about there being no secret proviso in IEEPA that gives the president the power to screech tariffs into existence on social media.
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This prompted a 45-page lecture from Justice Gorsuch on the sacred virtues of the major questions doctrine. Indeed, none of his female colleagues were spared; Gorsuch heaped extra scorn on Justice Barrett for suggesting that one might infer a congressional delegation of authority from context.
Barrett crafted her own concurrence, mostly as a response to Gorsuch’s attack.
“If JUSTICE GORSUCH thinks that we should forgo the most natural reading of a statute because it is preferable for Congress, rather than the President, to make big decisions, that way lies ‘a lot of trouble’ for the textualist,” she sighed.
Justice Kagan has clearly had quite enough of Gorsuch patronizingly douchesplaining HOW TO LAW GOOD.
“Given how strong his apparent desire for converts, see ante, at 2–26, I almost regret to inform him that I am not one,” Justice Kagan wrote in a dissent joined by Justices Sotomayor and Jackson, adding that “I’ll let JUSTICE GORSUCH relitigate on his own our old debates about other statutes, unrelated to the one before us.”
Justice Thomas spent 17 pages peering into the psyches of the Framers to divine their thoughts on the president’s right to levy tariffs — Shocker, they’re for it! — padded with dozens of cites to his own prior writings.
And Justice Jackson chimed in to add that, if you want to go spelunking to determine legislative intent, the proper inquiry doesn’t begin in the 1770s but in the 1970s when IEEPA was passed.
It was a slugfest, with the Court’s conservatives bludgeoning each other over the issue of whether the locus of power should be in the unitary executive, or the Court itself. Why shouldn’t the conservatives take this opportunity to block any law or executive action they don’t like when they have a 6-3 majority? Jesus, Brett, get with the program!
And meanwhile, no justice explained how to unwind this mess and refund the $200 billion in tariffs paid by American companies and consumers — although Kavanaugh cited the chaos as a reason to let Trump keep violating the law forever. Probably something they should have considered before they let the president collect them for a year, even after lower courts said it was totally illegal?
Anyway, here’s the president with his very rational response.