We take a close look at the tariffs decision.
With unpredictable timeliness, we have a quasi-emergency episode on the 170-page tariffs decision, Learning Resources, Inc. v. Trump. Come for the in-the-weeds legal analysis, stay for the deep dive into the origins of the phrase "no, no, a thousand times no."
Will: Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Will Baude.
Dan: And I'm Dan Epps. So, Will, this is what passes on our show for an emergency episode. I don't think we do true emergency episodes, because we're not ever trying to be super, super timely. But we did get the tariffs decision, Learning Resources v. Trump, and we are recording same day, and hopefully, we'll have this episode to you fairly promptly. Does it feel like an emergency to you?
Will: Well, I guess that's part of the question of the case, right?
Dan: I guess. Okay, so, we'll get to that. All 170 pages of the opinion, which we've both read to the extent possible in the brief hours between its release and this recording session. Before that, something maybe a little bit less consequential, which is the amendments to the Court's rules.
Will: Mm-hmm.
Dan: Not the most exciting thing, but for those who practice in Supreme Court litigation, kind of interesting. So, two things. One, the Court has changed the rules in ways that I think are designed to make it easier for the Court to catch recusal issues.
Will: Yes.
Dan: So, in petitions, the parties now have to list the stock ticker symbols for any parties to the proceeding. And that rule is going to extend to briefs in opposition. And interestingly, in the past, if you did not want to file a brief in opposition, you could just do nothing, and then it would just be treated as if you had waived your right to file a brief in opposition, and the Court would consider the petition on its own. Now, if it's a non-governmental corporation that is the respondent in a case, they can't do that anymore. They have to either file a brief or file a little statement waiving, and that statement waiving would have to include the stock ticker symbols.
Will: This is great. I think several of the circuits already use and have for a long time, various automated ways to try to catch recusals, rather than I think the Court's prior technology of hoping that their clerks and other clerks successfully flagged every subsidiary of every corporation that might implicate the Justices. And then you get these cases where the Justices didn't recuse in the consideration of a certain petition that obviously didn't even make it to the discussed list. So, it's dumb to care about it, but since it's the rule, it looks bad if they don't get it right. So, this is great.
Dan: I wouldn't go so far as to say it's great, because I think it's dumb that this is needed.
Will: Well, a lot of things are-- [crosstalk]
Dan: I think that the Justices could solve this problem on their end by divesting themselves of stocks that create recusal issues. I just don't see any reason for them not to do that. As I understand it, there's statutory authority that lets the Justice do that and avoid realization of capital gains taxes. So, people should just own index funds anyways.
Will: I think I said this to you before off the air, but one of the few Supreme Court ethics reform statutes I would support is a statute just saying, “By operation of law, when you become a Justice, you and your family have to all sell all individually owned stocks and reinvest the person's index funds.”
I would be open to making it retroactive. So, saying something like, “No person shall be eligible to the Supreme Court if in the past 10 years they've owned a stock,” because really people shouldn't own individual stocks that they're smart lawyers, and so, we could just make all smart, ambitious lawyers.
Dan: That seems too excessive.
Will: Just good incentives. It would be good for the world.
Dan: Look, if some really savvy future Justice wants to build a portfolio, I'm okay with that. They just can't do it once they're in the Court. This has been a big problem for Justice Alito. He, I think via his wife, has all these conflicts from various stocks. It just seems to me that if you're going to be on the Court, it's your job to be eligible to hear all the cases the Court might hear.
Will: Yeah. You heard the rumors that on the D.C. Circuit, some judges intentionally buy stock in energy companies, so they don't hear the FERC cases or whatever? I don't know if that's actually true or just apocryphal.
Dan: That's extremely disturbing, if true. Strikes me as deeply unethical.
Will: There you go. Ethics reform we can agree on.
Dan: Okay. Then the other thing is, this is deeper in the weeds. Probably only of interest to those of you who, like us, occasionally file briefs or help people file briefs, which is used to be the case that—
So, the Court created an electronic filing system in the last few years. But formally, a document was not filed for purposes of actual filing until the paper copy was received. And so, you would still have to do this process of uploading the PDF. But the actual thing that counted as filing was the delivery of the 40-printed and bound little booklets of a petition, at least if it's a paid petition.
And so, now, the thing that counts as filing is the actual upload. This is the way it works in. I think all other federal courts in the country. And so, then the filing party can make sure, as long as they get the paper copies in within a couple days, then it's fine.
Will: Yeah. This is I think a non-trivial change in that, as you know from trying to do this. There are great companies you can work with who print and file these briefs, but the Supreme Court's printing standards are relatively boutique. The booklets have a weird size. You need to go to one of the set of specialists to do this. They usually want your draft by 10:00 AM that morning or something, with a limited ability to check for typos and stuff after that. So, this really gives you a whole extra business day to write and file your brief.
Dan: Yeah, because I guess the brief could be filed electronically late at night.
Will: Late at night, and then the next morning the printers get to work on it. Now, of course, there's no reason we can't all just start everything 12 or 24 hours earlier, knowing the way the deadlines work. But it sometimes happens that you're down to the wire, and now the wire is moved.
Dan: Yeah, I'm generally opposed to late night filings. I just think professionals should be able to get it done earlier in the day. But I suppose this will bail a few people out.
Will: Look, you can still file earlier if you want.
Dan: Yeah, still. Maybe they should set —I think there's no reason the deadline has to be midnight, right?
Will: That's true. There's the thing recently the Third Circuit, for a long time, had a 05:00 PM deadline, I think. There was some question whether to move it, or maybe they had a midnight deadline. There was a question whether to move it to 05:00 PM. It is awkward because the 05:00 PM East Coast deadline is then like 02:00 PM, if you're finally from California, which you could do. But it's kind of awkward.
Dan: Yeah, it's one of those things where you're setting paper deadlines for your students. You know that some of them will go right up to the deadline. And so, if you set it at 07:00 AM, some of them might stay up all night. And so maybe that's out of kindness, you shouldn't do that.
Will: Yeah, but I think I am entitled to be more paternalistic towards my students than the Supreme Court needs to be to members of the Supreme Court bar.
Dan: I don't think it's really paternalistic to just say, “Let's be nice to people.”
Will: Well, I don't know if it's nice or not. I think it's saying, “We worry you're going to do something with this freedom that is not good for you, so we're going to instead take away your freedom.”
Dan: But in our side conversation, you took the position that everybody always files at the deadline. That's just the way it works in law.
Will: Yes, but you told me I was wrong, because you were actually more responsible. So, it’s great.
Dan: I don't think I would always go to midnight.
Will: I guess and I do think there’s — I’ll explain a little bit. There's, of course, this plurality problem. So, my experience in practice was that sometimes you, the lawyer, were ready to file something a day earlier, but then the client or some other stakeholder wanted to look at something again and they had changes. If you could say, “Sorry, too late, we got to get it in,” they'd be like, “Okay, fine.”
Dan: Yeah.
Will: But if it was not too late, then suddenly you have to do a bunch of extra stuff. So, the deadlines do operate to resolve conflicts between multiple stakeholders on a brief in a way that nothing else can.
Dan: That's true. Certainly, it's true that in my time in practice, I never saw a brief filed a day early. It was always on the day that it was due.
Will: Yeah. One interesting thing about both these changes, by the way, they're small, is that they're both common sense things that bring the Supreme Court a little bit more into what Justice Kennedy would call the cyber age, [Dan laughs] only a couple decades later than you might have thought was natural.
Dan: Here's a question I have. One thing that has come up occasionally over the years is the practice of ghostwriting briefs in opposition, which is — [crosstalk]
Will: We've talked about this.
Dan: Yeah. Where the party trying to oppose cert —Maybe there's multiple law firms working on it. There's the local counsel, not famous lawyer, and then there's behind the scenes, the super famous Supreme Court practitioner. The incentive is to not put the name of the fancy Supreme Court practitioner on the brief in opposition, because then you're signaling that [chuckles] fancy Supreme Court practitioner thinks this is an important case worthy of his attention.
Will: Yeah. Or, at least the client thinks it's worth.
Dan: Yeah. Maybe not the client if it's a pro bono case or something. But then, that does create a problem, right, which is that it means that there's no opportunity for the Court to check for conflicts in terms of counsel, right?
Will: That's true. Although, this must come up all the time if a party has lawyers who haven't entered an appearance just in regular court.
Dan: Yeah.
Will: I'm talking out of my ear here. I guess the idea is we just don't care that much — If the judge doesn't know that this person's involved, then there is no appearance, there’s no potential bias and no appearance of bias, because the judge doesn't know.
Dan: Yeah. Although that lawyer might suddenly make an appearance later in the case at the merits stage or something.
Will: Right. At which point the recusal kicks in.
Dan: Yeah. Maybe there just aren't that many situations like that. The Justices' children, I think, just don't file petitions.
Will: Right. And probably don't secretly consult on that many petitions.
Dan: Yeah.
Will: Yeah, it's an interesting point. I think this must come up in federal court all the time, because there are people who are under investigation, and consult with various lawyers, and then somebody might enter an appearance, but you might have your big gun waiting-- Once you decide and know you're actually ready to go to trial, and so you have your trial boutique on retainer or whatever. But yeah, that's interesting.
Dan: Okay. That's our only —
Will: Non-tariff news.
Dan: I think so. Yeah. I feel like it's been a slow stretch.
Will: Well, they weren't sitting. We had to dig into the argument recaps and previews to sustain the show. But they've got more opinion days next week.
Dan: And there's been very few shadow docket, interim docket type things.
Will: Yeah. But today, Dan, today is Liberation Day.
Dan: Re-liberated from tariffs?
Will: It's Liberation Day Liberation Day. Like, Trump proclaimed tariffs Liberation Day.
Dan: Oh, I see.
Will: We've been living under these ruinous consequences for 10 months, and now we are liberated from Liberation Day.
Dan: We're liberated.
Will: I feel free.
Dan: Okay. Yeah. The only other thing I was going to say was I had a post on our blog and also on the Interim Docket blog, asking —Some people say, “The Supreme Court is in the tank for Trump, because they rule for him on the interim docket all the time.” Other people say, “Actually, they're not. It's just because the SG's office is being really selective about which cases to take,” okay?
And then, I said, “Okay, well, if the latter thing is true, then why is the SG's office doing that? Why is Solicitor General John Sauer doing that?” He presumably could take more cases, would potentially reduce his win rate, but also might end up saving a few more bad decisions below. I didn't really come to a conclusion on that question, but I do think maybe there's some complex intra-administration politics going on. Maybe it's easier to look good to Trump if you can just point to a strong win record.
Will: Yeah. Yeah. I think there is something to that — I do think there is this complicated dynamic — Maybe this is more solidified than there used to be about to what extent Trump wanted to go the inside route versus the outside route, or the law route versus the who-cares-about-the-law route. And if you're on the law team, then showing the president you can get victories through the law route is good. It might be that lowering the salience of the things that the Court's actually going to rule against you is helpful. But I'm not sure. I think it's a good post, what do Solicitors General maximize?
Dan: Yeah. And so, that I think is a segue into talking about the tariffs case, Learning Resources, because not to bury the lead. The President loses pretty big time in this case. Before we get into the legal weeds, I mean Trump is mad, right? He doesn't like this. The segue is I wonder whether this will jeopardize Solicitor General Sauer at all. I'm not saying it should, but I just wonder.
Will: Yeah, I don't know. It also depends on what it looked like. What were the conversations like? Did the SG say, “Look, Mr. President, you're going to lose this one, I'll do it.” Or, did they say, “No, no, we can win this one. But also, what other —”
Dan: I guess there's something in between. I don't think that this was an absolutely unwinnable case at the outset, right?
Will: No. I think before argument, my money, which I did not bet, other than the way we all are invested in the economy, my money would have been on probabilities in favor of the government. Post-argument, less so. I saw that in one of the press conferences, the President blamed foreign influence. Some of the Justices are somehow susceptible to foreign influence, and that's part of why the Court ruled against him.
Dan: Don't totally understand the causal chain there.
Will: No. But maybe that's [unintelligible [00:16:51] Solicitor General Sauer, as you say [unintelligible [00:16:53]. Obviously, we won all the American Justices, but we lost the traitors, including two Trump appointees.
Dan: S&P 500 up as of right now 0.61%.
Will: It's not a lot.
Dan: It's 61 basis points. It's not terrible.
Will: Yeah.
Dan: But yeah, it's not a huge shot in the arm for the stock market. I guess that the market had already priced in some expectation that this was going to come out this way, because I thought that you'd see a little bit more of a boost than that.
Will: Right. I think the prediction markets had this at a 70% to 80% probability already. Of course, there are these questions, which I guess we'll talk about soon, about what does this actually mean? Can the President still impose the same tariffs some other way? Will this disrupt our various trade deals? Do we have to now come up with billions of dollars to pay the people who we took it from, apparently unlawfully?
Dan: And so, Trump has announced he's imposing a new 10% global tariff under Section 122 of the Trade Act of 1974, a statute that I have not investigated. I don't know if you've looked at the text of that at all, and whether there's going to be any similar arguments there or whether that one is a statute on which the administration is on firmer ground.
Will: I looked at this a while ago. There are several different statutes, but I think some of them just require more findings and procedures than the President has currently used. I assume some lawyers were already working on this beforehand.
Dan: Oh yeah, I would imagine.
Will: So, we'll see what it looks like exactly and whether it holds up. I think the Trade Act and these other statutes make it harder to do the thing where somebody is mean to you on the phone and you just unilaterally double the tariff.
Dan: [chuckles] That would be nice to have that. I wish I had that power.
Will: Well, you could do that.
Dan: I could just tariff you.
Will: You could do it to anybody you want to do business with. You could just be like, “You were mean to me, so I'm not buying any of your products unless you give me a 10% discount,” and then see what they say.
Dan: I suppose so. I don't know how it would work.
Will: Try it to your employer. “I'm mad, I demand a 10% tariff.”
Dan: So, the Wall Street Journal has a short piece about how Trump learned about it. He was in the middle of a closed-door meeting with governors, and a trade advisor came in and handed him a piece of paper. He looked calm, but apparently told the governors he was seething inside and called the ruling a disgrace.
Will: It's interesting, because you don't normally think of the president as somebody who bottles up his negative emotions, but apparently, he does. Okay, so, should we actually just say what happened first and then we'll talk about — [crosstalk]
Dan: Yes. Although I was going to just note that he was pretty mean about Justices Gorsuch and Barrett, two of his nominees. "So, I think it's an embarrassment to their families, if you want to know the truth, the two of them."
Will: Why their families?
Dan: I'm not really sure. Maybe their families like tariffs. “Asked if the six Justices who voted to undo his tariffs would be welcome at Tuesday's State of the Union address,” Trump said, "They're barely invited. Honestly, I couldn't care less if they come."
Will: That's interesting. Do you think they'll come?
Dan: Yeah.
Will: Yeah. Okay.
Dan: I think that they're not going to skip just because the president is mad at them. I think that you show your authority and independence by still coming.
Will: What if they think that he's going to yell at them if they come? [chuckles]
Dan: Then they're going to silently mouth, "Not true."
Will: Altogether. [chuckles]
Dan: Yeah. Well, all six of them.
Will: Okay. So, the Supreme Court invalidated the tariffs by a vote of 6 to 3. The majority opinion in part, plurality opinion in part is by Chief Justice Roberts. It is joined by Sotomayor, Kagan, Gorsuch, Barrett, and Jackson in parts, and other parts only by Gorsuch and Barrett. There are concurring opinions by Gorsuch and Barrett, and Kagan joined by Sotomayor and Jackson, and Jackson. So, four different concurring opinions.
Dan: Yeah. The ones by Kagan and Jackson are partial concurrences. They're concurrences in part and concurrences in the judgment.
Will: Yes. And then Thomas has a dissent, and then Kavanaugh has a dissent that's joined by Thomas and Alito.
Dan: Very, very long one.
Will: So, the reason the majority is a little complicated, is the majority strikes down the tariffs on two grounds. Sorry. Chief Justice Roberts and Gorsuch and Barrett strike down the tariffs on two grounds. One, if you read the statute, the President should lose. Two, if you read the statute with the help of the major questions doctrine, the President should lose. They have six votes for the first proposition, that if you read the statute, the President should lose.
Dan: Just as a matter of normal statutory interpretation.
Will: Yes. But only three that employ the major questions doctrine. The decision is fascinating, not just for what happened, but there's a lot of back and forth among various opinions about the major questions doctrine and leaves me even more confused about what the major questions doctrine is. Because of course, the major questions doctrine started out not being the major questions doctrine.
It started out there were just some cases that interpreted statutes in a common-sense way. And then, after a while, the Court was like, “Well, I guess we can call this the major questions doctrine.” And now, some of the Justices are doing the major questions doctrine while not calling it major — Idon't know, it's very confusing what the —
Dan: Yeah. So, I don't know where to begin. The Chief Justice's majority opinion is quite efficient. I thought well written, gets to the point in just barely 21 pages, not just a little bit onto the 21st page.
Will: Yeah. So, maybe the place to begin is just with IEEPA.
Dan: Okay. You're going to read the whole relevant section?
Will: I'm going to read two paragraphs of the Chief's opinion. So, one is paragraph two on page two. "Enacted in 1977, IEEPA gives the President economic tools to address significant foreign threats. When acting under IEEPA, the President must identify an “unusual and extraordinary threat” to American national security, foreign policy, or the economy originating primarily outside the United States, and he must declare a national emergency under the National Emergencies Act. He may then, by means of instructions, licenses or otherwise, take the following actions to deal with the threat."
Investigate, block during pendency of investigation, regulate, direct and compel, nullify, void, prevent, or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest."
And then, the Chief summarizes this at the very first paragraph of Part 2 of the opinion. Based on two words separated by 16 others in Section 1702(a)(1)(B) of IEEPA “regulate” and “importation,” the President asserts the independent power to impose tariffs on imports from any country, of any product, at any rate, for any amount of time. Those words cannot bear such weight." So, that's the core holding "regulate importation" does not include the power to tariff imports on any country of any product at any rate, for any amount of time. All right, what are you think?
Dan: [crosstalk] just as a matter of basic statutory interpretation.
Will: Well, I'm delighted by this opinion and I think it's right, but it would have been easy to write an opinion that says, “The power to regulate importation includes the power to say you can only import if you pay us some money.” [chuckles] So, the conclusion that the words regulate and importation don't include this power, is driven in part by something else.
There's the realist version of it's just driven by the fact that the president is a crazy person who came to trust with his power. There's the Gorsuch version where it's really driven by the fact that it would violate the nondelegation doctrine, so it violates the major questions doctrine. There's the Barrett version where we say, “Well, it's not that strong, but still the separation of powers fact in the background.” There's lots of different ways to come at it. I think that's right. But I do think the words regulate and importation are not doing the decisive work here. Do you disagree?
Dan: Yeah, I think that's not a crazy belief. It seems to me that one thing that at least struck me as important in the background, is that this is the kind of power that at least as I read the Constitution is in the first instance correlated within Congress's power, right?
Will: I agree. So, that could be a piece of background fact.
Dan: Like, "The Congress shall have power to lay and collect taxes, duties, imposts, and excises," right?
Will: Right. But you know what other power is greater than Congress' power? The power to regulate commerce with foreign nations. So, even just the power to regulate importation, that's almost straight out of Article I.
Dan: Yeah, but there they're saying it clearly. My point is not that they can't do it, but my point is where there's a clear grant of authority to Congress, you might want to see them explicitly use the governing language to transfer that power.
Will: Yes, exactly. So, that could be what's doing the work, is the text of the Constitution serving as a dictionary. Now, even in constitutional law, we often have a lot of overlap between the tax power and the commerce regulating power, and we say, “Ah, is this really a tax? Is this really a regulation? In NFIB, of course, the overlap really came to a head.”
So again, it wouldn't be crazy to have said the power to tax interstate commerce and international commerce and the power to regulate international commerce are two big powers that are deeply entwined. Sure, Congress could separate them, but — Now again, I think the majority is right, and I think they're even right without something fancy called the major questions doctrine. But this is where I'm confused what the major questions doctrine is.
Dan: Okay. So, you think they're right for what reason then, something in between major questions and straightforward statutory interpretation?
Will: Yeah, I guess, is this what we call context now? It's just like, if you read these words in isolation — I don't know, it wouldn't be crazy to read them either way. But if you read them in the background of the Constitution and common sense and — For me, the other common sense piece of this is the fact that this power is triggered by the declaration of a national emergency, which both doesn't seem to have been met here, but which everybody seems to not want to second-guess.
I find that combination tricky. If you told me that, “No, we're going to read these words really broad, but there has to be a real national emergency, and if there's not a real national emergency, the courts will stop it,” then it would make more sense to read the terms really broadly.
Dan: So, what if the statute didn't have any emergency threshold?
Will: So, similarly, I think if the statute just said like, “Anytime the President thinks it's necessary and proper, he can regulate importation, that would be another reason to read it narrowly.” But if you had the same words behind some a locked door that could only be accessed in emergencies, then context might say, “Okay, actually, you should read these things broadly.” On its face, IEEPA is that statute. On its face, IEEPA only allows you to use the powers if you get the key to the door. It's just that the president has the key and nobody can — My metaphor got away from me there.
Dan: But here no one is saying, “We're going to rule against the President, because there's not an emergency.” We seem to just be taking that for granted.
Will: Right. It was litigated. It was before the Court. They would have had to write an opinion ruling for the administration, you do still have to say why this is an emergency — [crosstalk]
Dan: Or, why the courts are not allowed to say it's not an emergency.
Will: Right. The phrase is not even emergency. It's an unusual and extraordinary threat. And so, you have to respond to the point that actually balance of trade deficits are not unusual, they've been there for a long time than optically extraordinary and so on. Now, again, you could just say, “Well, just we're not allowed to ask whether it's unusual or extraordinary for reasons.”
Dan: Okay. One side thing. This was actually two linked cases, Learning Resources and V.O.S Selections, and there was a question about what courts properly had jurisdiction over these challenges. One of the cases came up through the Court of International Trade and the Federal Circuit, and another came up through a regular district court to the D.C. Circuit and the Court says, “Basically, the first one was right jurisdictionally.” It should not have come up through the district court to the D.C. Circuit, but concludes that in a very brief footnote on page five.
Will: Yes.
Dan: Is that surprising that it's just so brief?
Will: No, I think that was the conventional view. The only reason to expect anything different is like, would the Court have squinted at the jurisdiction in order to reach the case if they had to? Because they had the version that had the wrong jurisdiction did you get, right?
Dan: Yeah.
Will: It has the funny consequence, though, that Learning Resources v. Trump is the one that came the wrong way, and V.O.S Solutions is the one that came the right way. So, there's the old joke, like, who's buried in Grant's tomb? And the answer is nobody, because it's above ground, whatever. It's not buried. It's like —[crosstalk]
Dan: Is that the punchline? I thought the punchline was Grant.
Will: No, the punchline —[crosstalk]
Dan: Oh, okay.
Will: [unintelligible [00:31:53].
Dan: Right. Is that here in Missouri?
Will: I thought it was in New York.
Dan: Okay. His farm is here. Yeah.
Will: Yeah. Well, Galena. He grew up in Galena, Illinois, didn't he?
Dan: I don't know, Grant's farm is in Missouri.
Will: So, somehow you could do a version of like, what result did Learning Resources get in Learning Resources v. Trump? They lost if dismissed for lack of jurisdiction. I can't go figure out how to do the joke, but it's funny that Learning Resources is not the victorious party.
Dan: Yeah. I don't know if you saw, we got an email about this from Zach Alban. I hope I'm pronouncing that correctly. And he says, "I wrote you with a question I suspect might only get answered by the Divided Argument team." And then, noting this weirdness about the caption of the case, he says, "Does an appeal of a jurisdiction-less court order to a court that does have jurisdiction cure a statutory subject matter jurisdiction problem, at least for the purposes of the court of appeals?" What do you think?
Will: No.
Dan: Okay. That means the D.C. Circuit also lacked jurisdiction?
Will: Yes.
Dan: Which means the Supreme Court also lacked jurisdiction?
Will: Well, they have jurisdiction to determine jurisdiction.
Dan: Yeah. Yeah.
Will: But in Learning Resources v. Trump, I think the appeals will all be dismissed.
Dan: Yeah. That has to be. Right.
Will: Okay. I feel like a lot of the action in these opinions are in the concurrences, but there are, I think, three small things from the majority I do want to flag. One is the treatment of Dames & Moore v. Regan. This is the 1981 precedent written by Chief Justice Rehnquist during the term John Roberts clerked for him upholding presidential authority outside of the statutes to suspend various claims as part of the negotiations of the Iranian hostage crisis.
There is long been taking a stand for the proposition of like, “Don't ask too many questions when it's a big foreign affairs thing.” Is it Article II? What is it? And that argument, that was one of Justice Roberts' few questions was does Dames & Moore extremely narrow and distinguishable? And the majority says that. They say the government invokes Dames & Moore v. Reagan, but the case offers no support. It was extremely narrow. And then, there's a footnote where it quotes all the various parts of the opinion where it said, “We're only resolving this case where this is narrow. We're not even laying down any general guidelines.”
And then, the footnote says, "This is not quite ‘No, no a thousand times no,’ but should have sufficed to dissuade the principled set from invoking the case with respect to the quite distinct legal and factual issues present here." That's interesting.
Dan: Yeah.
Will: And what is known--
Dan: So, I was trying to figure this out where the origin of this phrase, and one answer I'm finding on the Internet is it's a phrase that partially comes from Shakespeare, The Two Gentlemen of Verona.
Will: Uh-huh.
Dan: "This is it. My heart accords thereto, and yet a thousand times it answers 'no.'" The other thing that I'm finding is a 1935 Fleischer Studio animated short film starring Betty Boop called No! No! A Thousand Times No!!
Will: [laughs] So, it's either Betty Boop or Shakespeare.
Dan: Maybe there's something in between-- But I found english.stackexchange.com question about this. This is not a question from this case. It was a 10-year-old post. Here, the person asking the question claims that it has possible origins in India. This person finds a reference in Animal Farm by George Orwell, "No, comrades, a thousand times no!" So, not the no-no formulation.
Will: Right. But the majority uses the "no-no" formulation and in quotes.
Dan: Yes.
Will: But they're not quoting anything. I mean, they don't cite anything.
Dan: Yeah. So far, the only thing I'm finding for that precise formulation of words is the Betty Boop thing. [Will laughs] I'm not-- [crosstalk]
Will: Yeah.
Dan: Okay, let me see. I found a 1967 New York Times article-
Will: Okay.
Dan: -that has significantly postdates Betty Boop. But the headline is In the Nation: No, No, a Thousand Times, No/Reluctant and Unconvinced; Flexible on Vietnam; The Democratic Alternative. I don't know if that--
Will: Is that about the age of the Justices youth? Like, could they remember this headline from--
Dan: I don't know. There's apparently-- [crosstalk]
Will: I guess it's also a song from the Betty Boop thing also then becomes a song-- I don't know. Okay.
Dan: Yeah. So, this is what I've been able to figure out based on a few minutes of googling, but it's possible that--You know what? I think we got to go to AI on this.
Will: [laughs] Okay. Last time we tried that, Dan, it led us astray.
Dan: Yeah. But this seems the kind of thing that might be core AI wheelhouse. Okay, I'm asking both Claude and ChatGPT.
Will: Uh-huh.
Dan: Here's what Claude said. "Its roots in melodrama, both theatrical and operatic, widely popularized and eventually parodied as a cliché of the damsel in distress refusing the villain's advances, the kind of scene you'd find in penny dreadfuls. And so, so far, phrase appeared in 1935 song which played on this melodramatic tradition deliberately for comic effect. By that point, the expression was already well established enough to be recognizable as a cultural touchstone." Okay.
Will: If the idea is it's playing on the damsel in distress, the damsel isn't really saying no, and is saying no, no a thousand times no, then is the idea that Dames & Moore doesn't want to be cited, but wants to be-- [crosstalk]
Dan: Okay. ChatGPT gave me an answer that was much less useful.
Will: Okay. That's often my experience.
Dan: Yeah, that's surprising. Okay, so, I don't think we're going to get to the bottom of this one.
Will: Okay. I feel like this is a place where the Divided Argument listener community can outperform AI. I feel like somebody listening to this understands the layers of what the Court is going for with this reference. I hope you will tell us, call, right? But I want to know.
Dan: All right. Was there something else you said? Okay, that's one.
Will: Two others. One of my favorite cameo holdings is the Court does make a brief constitutional alternative holding that IEEPA would be partly unconstitutional if the administration were right. Not because of the nondelegation doctrine, but because on page 15 of the Taxing Exports Clause.
They say, "A contrary reading would render IEEPA partly unconstitutional. IEEPA authorizes the President to regulate importation or exportation. Taxing exports, however, is expressly forbidden by the Constitution. Article I, Section 9, Clause 5." That's not wrong, but it's just weird to have that dumped in there with two sentences.
Dan: Yeah. Does that dicta or not? It's part of the reasoning.
Will: That's part of the reasoning. When is the last time the Court has said something about the Taxing Exports Clause and said that a statute might be unconstitutional under the Taxing Exports Clause. I'm not sure.
Dan: Well, do we ever tax exports?
Will: There's litigation right now. Somebody told me at lunch about the new regulations of Nvidia chips to China, which I think say you can only export them to China if you give the government a 15% cut.
Dan: Yeah, that sounds like--
Will: An export tax?
Dan: Sounds like an export tax.
Will: I'm sure the lawyers for Nvidia or whoever it is who's challenging it will point to this paragraph. I remember this point being made in the challenger's brief and I remember thinking, “Oh, that's cute, but I'm glad it wasn't too cute.”
Dan: Okay, so, that's two. You said you had one more.
Will: Okay. Maybe there's another time to talk about this, but the majority says absolutely nothing about what happens next.
Dan: Yeah. Yeah.
Will: Isn't that weird?
Dan: So, there had been some discussion at argument about can we stay the mandate or can we make this prospective only just something to stave off the apocalyptic concerns that the defenders of the tariffs raised about what's going to happen, billions of dollars in refunds. Nothing. Absolutely nothing.
Will: Nothing. Right.
Dan: So, we have to go through a whole round of litigation about that now.
Will: I guess so. Do we know anything about what that litigation looks like or what the--
Dan: Where do you go? Court of International Trade?
Will: I think so.
Dan: Okay.
Will: I think there is some theory that people are differently situated based on whether they promptly challenged the tariffs or not and so on. But I think in the period between argument and now, a lot of people have been challenging their tariffs.
Dan: Do I get any money back?
Will: I don't know.
Dan: I don't know if I paid any tariffs directly. Sort of just was absorbed into the cost of goods.
Will: Of goods. I guess I'm not sure. It is also interesting, because the Supreme Court granted a stay before they enacted this. So, it's the Trump administration and the Court that are the reason there have been a lot of tariffs paid that they're now going to have to unwind.
Dan: There still would have been some, right?
Will: Yeah. But for instance, if they knew the case was going to come out this way at conference, I guess I know why they didn't do this. But they could have that afternoon [crosstalk] dissolved the stay and then said opinions to follow. Now, I guess everybody would have lost their mind and Trump would have called them traitors, and we wouldn't have even had this nice opinion to stand up against it.
Now that we've had the delay, now that we understand that the delay was not because the majority opinion was taking a long time to write, but presumably because the other 149 pages were taking a long time to write, [chuckles] it's worth asking. I don't know, was that worth it? I like a lot of these opinions, but how many billions of dollars [Dan laughs] had to be paid, so that Justice Thomas could launch a new theory of the nondelegation doctrine, and so that Justice Gorsuch and Justice Barrett could argue about who's a better textualist.
Dan: Yeah. Well, why don't we walk through those opinions, having dealt with the brisk majority? I guess go to the Gorsuch opinion first.
Will: Uh-huh.
Dan: [chuckles] Gorsuch opinion is basically like, "I'm here to tell you, almost everybody else on the Court is a hypocrite."
Will: This one has a Godfather-type quality. We settle all the family business.
[laughter]
Like, “Here we are. I'm going to tell you about how Kagan, Sotomayor, Jackson, Barrett, Kavanaugh, Thomas, [laughs] and Alito all--"
Dan: Not just wrong, but basically hypocritical, right?
Will: In different ways.
Dan: Yeah.
Will: I don't want to quote too much of it. But he lists all the different ways in which he wants to complain about them and he says, "It is an interesting turn of events. Each camp warrants a visit." [Dan laughs] This whole opinion also, I just thought had a-- I don't want to say cast aspersions of Justice Gorsuch’s writing style, but there have been times that he gets a little purple, like it gets kind of really worked up. And this one is just like, it's dry and sharp in a lot of places instead, in a beautiful way. That's it.
Dan: I think it's good. I don't think he's ever going to be up there with Scalia, but I thought this was solid.
Will: I think this is more than solid. This one scores some good points.
Dan: Okay. I think it could have been a little shorter, but it's true of a lot of things published at the Court these days.
Will: We spent billions of dollars to get this opinion done.
Dan: [chuckles] Okay. So, first part of his opinion is trying to dunk on the liberals who took the position that this statute, just as a straightforward matter of statutory interpretation, does not authorize the tariffs without resort to major questions doctrine. He really is just using this opportunity to highlight perceived hypocrisy where he's like, “Look at all these other decisions where they said the Biden administration could do really broad stuff under vague statutes. Why do they think that now?”
Will: Mm-hmm. But isn't he right?
Dan: I think it's not an unfair point. I think that you can often draw distinctions between-- Every one of these cases comes up with its own unique statutory structure, its own unique facts, I guess. I'm always careful about how to use the phrase ad hominem, because ad hominem is a particular logical fallacy. People often use that phrase to describe things that actually are not logical fallacies. But here, I guess it doesn't really matter to the truth or falsity of the underlying argument whether other Justices have been consistent or not. So, it seems like, “Why does this matter other than as score settling?”
Will: Right. I think it probably matters in the future. So, the fact that now the major questions doctrine has been used in a bipartisan way, it's not just the major questions about Democratic president’s doctrine, which until now is up in the air and has been used. The net consequences, the net amount of anger, presidential anger that the major questions doctrine has caused might even be more Republican anger than Democratic anger. For those who care about that kind of thing, that gives the doctrine some added legitimacy when the majority wants to apply it in the future.
Dan: Yeah. Although it hasn't been invoked by a majority here.
Will: Right. Well, that's just it. So, then in the future, the dissent will maybe want to say, “No, no.”
Dan: Yeah.
Will: This one doesn't count on the major questions doctrine scorecard, because it was an easy case. The president was supposed to lose anyway. So, the question of it affects the stakes of the major questions doctrine and maybe the stakes of how partisan is the Supreme Court, which I feel like is one of the big stakes of this case. I got to imagine, right now, if you're John Roberts, you are hoping to see an apology from some of the law professors and newspapers who spent last summer talking about how the Supreme Court and John Roberts had totally sold out to Trump and the Court was terrible and so on. People can still disagree with opinions, but you're thinking like, “Nuh.” Now, no such apologies will be forthcoming of course.
Dan: You never know.
Will: But I got a [unintelligible [00:47:35] dollars.
Dan: All right. So, maybe score some points there. Okay, who's next in the line of Gorsuch's [Will chuckles] fire?
Will: Let’s see. It's a long opinion.
Dan: It's not just criticizing others. He is offering his own substantive lengthy defense of this doctrine and trying to respond to the argument from critics that this is this newfangled made-up thing. He finds origins in corporate law from pre-founding and founding-era corporate law.
Will: Uh-huh. 18th century British cases, and the railroads. Here I will also say Justice Gorsuch has great taste in citations. So, he relies on Mary Bilder's excellent article, The Corporate Origins of Judicial Review, published by the Yale Law Journal back when I was a Yale Law Journal editor. He relies a lot on the work of T.T. Arvind and Christian Burset, one of my favorite legal historians. So, there's a lot of good stuff in here. Again, you might wonder whether we needed it right now.
Dan: Do you think he sits down and reads those articles, or is it more like he's relying on good clerks who read the articles?
Will: I bet he reads them. I assume somebody is telling him what to read. I assume he's not doing a Westlaw search and reading all the false positives. But he seems like somebody who would-- He puts in the hours.
Dan: Yeah.
Will: I don't know. Okay, so, we to build up the idea that the Major Questions Doctrine is real and so on. Then, finally after 17 pages of that, we turn to the next camp, right?
Dan: It's a little gentler with her.
Will: A little.
Dan: Yeah. He calls it a thoughtful effort.
Will: Yes.
Dan: Does he even think the liberals are thoughtful?
Will: Okay, fair enough. So, of course, the state of play is that Justice Gorsuch defends the major questions doctrine on nondelegation grounds on West Virginia v. EPA. Then, Barrett comes along in Biden v. Nebraska to say, “No, no, no, no. It's not a substantive canon. Substantive canons are bad. It's actually a linguistic canon that just is a way of dealing with ordinary interpretations of instructions, and the famous example of the babysitter and the alligators.”
So, now we have Gorsuch, kind of the next move in that, which is to say it can't really be just common sense. What's really doing the work is a belief with the background legal norms. He works on what if instead of a babysitter taking the kids to the amusement park, it's a co-parent. The co-parent actually might be acting correctly because they have different background authority draws on delegation and agency. I think we haven't gotten Justice Barrett's concurrence yet, but in some ways, she might even agree that these things are doing some work. So, I think the gap between them may be narrowing. He does have this footnote.
His first footnote is a spicy one, and it's in the Barrett section footnote one, where he says, "Today, Justice Barrett protests that the foregoing discussion takes down a straw man. But it was Justice Barrett who previously wrote that the major questions doctrine grows out of a common sense principles of communication. And it was Justice Barrett who used the various illustrations recounted above to suggest that our major questions doctrine could be explained by reference to the common sense that goes without saying. If Justice Barrett now means to put all that to the flame, the major questions doctrine is better for it."
And that's a nice, like the straw man and the flame is good metaphor?
Dan: Oh, yeah, that's not a [crosstalk] that does work.
Will: Yeah. That was spicy, I thought.
Dan: Yeah.
Will: I guess she's not being lit on fire in the metaphor, right? It's just her-- [crosstalk].
Dan: Her opinion review. Yeah.
Will: Biden v. Nebraska's been lit on fire.
Dan: Yeah. Okay. Third camp.
Will: All right. That brings us to the third camp. This is the Kavanaugh camp.
Dan: So, this one, these are thoughtful and merit careful consideration."
Will: Okay, wait. So, we went from nothing to "thoughtful"
Dan: "Thoughtful, but harbor doubts." And this is "Thoughtful, careful consideration."
Will: Is that better or worse than "Thoughtful and harbor doubts"?
Dan: Not sure. It's suggesting that you have to spend more time to go through it to figure out that it's wrong.
Will: Okay. So, this is the idea that while IEEPA should have--It's a big deal, it includes this and or there's a foreign affairs exception. Is that the-- [crosstalk]
Dan: So, here he's going to go through the statutory analysis, and he says, “The dissent consults four clues. We have sometimes employed in our major questions cases to help assess whether a statute clearly authorizes an asserted power.” And he says, "The dissent formulates these clues largely as I would, but to my eyes, the dissent engages in a little grade inflation when applying them."
Will: That's a good one.
Dan: Okay. So, clues. First. Is the President seeking to exercise an unheralded or newfound power? Dissent says, “No,” pointing to this example from President Nixon. Gorsuch says, “That's wrong.”
Will: A single time one never tested in this Court.
Dan: Yeah. Okay. Clue two. How has the executive branch interpreted IEEPA in the past? Dissent says, “Presidents have long understood IEEPA to permit them to impose tariffs.” But he says, "Again, you're relying on really isolated pieces of evidence. No president until now has invoked IEEPA to impose a duty, even 1% on one product from one country." Okay. Mismatch between the action the executive official seeks to take and his expertise. Okay. Here he agrees. No mismatch. The tariffs fall in the President's wheelhouse. Okay.
Fourth is the President relying on oblique, elliptical, or cryptic language. Dissent says, “No,” because this does not involve elephants and mouseholes to use a famous metaphor. And here, this statute was designed to convey major powers.
Will: It's a fair point as far as it goes. But our cases ask not just whether our provision is a mousehole or ancillary, they also caution against reading extraordinary powers into broader general statutory language. See West Virginia v. EPA. And that does seem like a good example for him.
Dan: Yeah.
Will: As I see it then, three of the four clues the dissent relies on cut against it.
Dan: So, he reaches the opposite result on that. Okay, next part.
Will: Right. Then, he says, “Okay, if the President's claim fails our usual major questions doctrine, the dissent says, ‘We should make an exception to it for foreign affairs.’” Once more, I guess he has limited agreement, which is-- This is actually, I think, a profound and interesting point.
Everybody has an intuition that there's some exception for these various things, for something foreign affairsy. And one way to view the exception is by topic, like it's foreign affairs. That's presidential. A different way to view the exception, which Justice Gorsuch's view is by the Constitution.
If it's something that the President has Article II authority over, then the standards are relaxed, because not all his power has come from Congress. The nondelegation concerns are diminished, major questions concerns are diminished, and so on. And tariffs, while they're arguably foreign affairsy, are definitely not Article II. The administration accepts that the President has no inherent Article II authority to impose tariffs. This is interesting, I think.
Here there's sort of a fight over who is better supported by Curt Bradley and Jack Goldsmith, who have an article called Foreign Affairs Nondelegation and the Major Questions Doctrine. And who, by my read, are really taking something like the Gorsuch position that these doctrines are relaxed when there is Article II authority. But again, if you squint at it, you could try to turn that into a foreign affairs exception.
Dan: Yeah. The first appearance of this article on page 30 of the Gorsuch dissent is, at the time of recording, improperly bluebooked, has the incorrect date in the parenthetical?
Will: Oh, it's 2004 instead of-- [crosstalk]
Dan: Yeah. It's actually 2024.
Will: Yup. Oops.
Dan: My colleague Conor Clark pointed this out to me.
Will: Yes. There's a different 2004 Curt Bradley article cited on the next page. [chuckles]
Dan: Yeah.
Will: There's a lot of Curt Bradley citations in this piece, which is great.
Dan: There was one thing in the majority that I meant to flag that I didn't that's, I think, relevant to this discussion.
Will: Is it a bluebooking error?
Dan: What?
Will: I said is that a bluebooking error?
Dan: No, no, no, no, which is relevant to this major question’s issue. There's the question about how major is this power and how significant is the matter at issue. And on page 11, the majority uses the government's words against it.
He says, "As the government admits, indeed, boasts the economic and political consequences of the IEEPA tariffs are astonishing. In the President's view, whether we are a rich nation or a poor one hangs in the balance.” This is from the introduction to the brief for the government very bold language that I think got a lot of attention. I think we may have mentioned earlier in the show. I thought that was effective twist the government's words around.
Will: Well, it makes you wonder-- Because of course, when the government was asking for cert and expedited briefing and a stay, obviously the reason they were asking for it is they think this is a major question.
Dan: [chuckles] Yeah.
Will: If you really wanted to nullify this doctrine, I almost wonder if the rule should be like, “If it's a government on cert petition, it's a major questions case.” That's why they're here.
[laughter]
They don't petition for cert on minor questions until John Sauer reads your blog post and changes their cert strategy. [Dan laughs] Two pages later, there's a line I didn't mention earlier where Roberts says, "The central thrust of the government's and the principal dissent's proposed exceptions appear to be that ambiguous delegations in statutes addressing the most major of major questions should necessarily be construed broadly.
But it does not follow from the fact that a statute deals with major problems that it should be read to delegate all major powers for which there may be a colorable textual basis. It’s in precisely such cases that we should be alert to the claims that sweeping delegations, particularly delegations of core congressional powers, lurk in ambiguous statutory text. There is no major questions exception to the major questions doctrine." It's one of those chief lines.
Dan: Yeah, I like that.
Will: Of course, there's no exception to the major questions doctrine. But anyway. Okay, who else ends up on Gorsuch's Murderer's Row, if we--
Dan: Haven't we-- [crosstalk]
Will: Then we have Thomas, too.
Dan: Oh, yeah. We've gotten through almost everybody. So, the Chief is safe.
Will: Yeah.
Dan: Okay.
Will: Chief is the one person who escapes Justice Gorsuch's wrath.
Dan: Yeah. Does he pick on Justice Jackson independently at all? Yes, he does a little bit in a footnote, very, very briefly, where he is actually responding to Barrett. He says, "To the extent Justice Barrett suggests any skepticism, common sense principles of communication might or might not advise, derives from a practical understanding of legislative intent rather than external and substantive Article I values, that poses still further and familiar problems. Down that road lies all the pitfalls associated with reliance on legislative history and those associated with conflating unenacted legislative intent with the law."
See Scalia and Garner, the classic volume that's now trotted out basically by the conservative Justices all the time. And then, also, cites to the [chuckles] Jackson separate opinion that we'll get to, without any further editorializing.
Will: Yeah.
Dan: Basically, it's saying like, “This is so stupid. I just need to point to its existence to tell you why this is a bad idea.”
Will: Yeah.
Dan: Okay. But what does he say about Justice Thomas?
Will: Well, I think we should skip until we get to Justice Thomas' view, which is weird and interesting. But let's just say Justice Thomas has a new theory of the nondelegation doctrine.
Dan: Yeah, I didn't see this one coming.
Will: Which we also had to wait billions of dollars for.
Dan: Yeah.
Will: And Justice Gorsuch is skeptical. He is doubtful. I don't remember if he calls it "thoughtful." [Dan chuckles] It's sweeping. It's doubtful. It raises lots of questions.
Dan: Okay. All right. So, then, I guess let's go to more opinions. So, Justice Barrett, short concurrence where she is-- I wonder whether she just wrote this only in response to Justice Gorsuch's opinion. She says, at the beginning, "I write only to address Justice Gorsuch's concurrence." So, I guess he circulated his concurrence and then she decided she needed to stick up for her view.
Will: I think that's right.
Dan: And she says, "To the extent that Justice Gorsuch attacks the view that common sense alone can explain all our major questions doctrines, he takes down a straw man. I have never espoused that view."
Will: Right. And then, she disagrees, though, also with his claim to find the strong-form major questions doctrine, right?
Dan: Yeah.
Will: Strong-form substantive canons which veer beyond interpretation and policymaking. And then, she talks about his cases and she says, "Justice Gorsuch seems to disagree, pointing to a few late 19th and early 20th century cases. But these cases, like our modern ones, are consistent with my context-based approach. They focus on ascertaining, not shaping, what the statute in dispute communicates. I would not treat this evidence as precedent for a judicial flex."
Dan: [chuckles] Yeah, I liked that one.
Will: That's a good one.
Dan: Yeah. A little colloquial, little modern.
Will: So, do you have a view on the Barrett-Gorsuch fight at this stage?
Dan: Between which I like more?
Will: Or, which one is correct? I don't know. Yeah, well--
Dan: What do you mean by correct? I mean, correct and the best way to explain what the Court has done?
Will: Well, I think-- [crosstalk]
Dan: As a descriptive matter, Gorsuch is probably right.
Will: Okay. But as a matter of law and what the Court's role is, is Barrett right?
Dan: I guess I'm more drawn to her approach. I'm less persuaded that we need a strong form of the nondelegation doctrine and then less persuaded that that strong form requires interpreting statutes in ways that are not the best reading in order to bend over backwards to avoid problems that I don't necessarily think are problems.
Will: Yeah, I think I'm with you. I guess I would say the major questions doctrine Justice Barrett describes strikes me as fine, a perfectly reasonable way to interpret statutes. It does not strike me as the major questions doctrine that the Court has employed, at least in West Virginia v. EPA, might be the most extreme one. And now, maybe that's part of what's confusing is maybe all along, even back in Justice Gorsuch's English cases, the official story was something more Justice Barrett's doctrine. But when you look at them and you put all the cases together, it's obvious that something bigger is going on.
Dan: Yeah. I do wonder whether the distinction they're fighting about really is a distinction. I think Justice Gorsuch is getting at this, which is the kind of context that she thinks one should bring to bear are substantively normatively laden, right?
Will: Yes.
Dan: Like, going back to the babysitter example. It's hard to understand that example without some understanding about what babysitters should do and are allowed to do. And specifically, the example being like, can she just go take the kids on a two-day trip to an amusement park?
Will: I agree. I thought until this case that it might be--This is the kind of case where they would come apart in that on nondelegation grounds. It's clear that this is not an Article II case. This is an Article I case, because the power is an Article I power. But on Barrett background grounds, you could imagine thinking-- You could imagine that the Barrett version would care more about the fact that it's foreign affairs than about the Article I versus Article II questions, because it's drawing on norms or context or something rather-- She doesn't seem to. She seems to now want to say it's the same norms that Justice Gorsuch she cares about, which is the part-- That makes it seem like her view is now a little closer to his.
Dan: Yeah.
Will: But I agree with you. I think weirdly, the cases where these would really come apart are weird cases. So, a case where we knew that Congress wanted to give away the store but didn't want to admit it would be a case where the difference really matters.
Dan: In context, they probably would have wanted to do this, but they didn't.
Will: Or, if we have a secret letter signed by everybody in Congress saying like, “Here's a way to give the President tariff power, but we won't ever get in trouble for it or something.” If it's really about congressional intent and we really believe the letter, then presumably we'd say, “Oh, well, I guess this was their way of sweeping and regulate." Whereas for Justice Gorsuch, he would say, “Look, the point of the doctrine is to discipline Congress. It's not power Congress.”
Dan: Yeah.
Will: The other one where it might really matter, is as of when do you address major-ness? Because there are statutes where something might really not have been very major when it was enacted, but it turns out to be major, like the power to regulate various pollutants or something that turned out to be a bigger deal than we realized. I think Justice Barrett is logically committed to the view that what matters is major-ness as at the time of enactment.
Dan: Yeah. What would Congress have been intending to delegate?
Will: Yeah, Congress wouldn't have thought this power was a big deal because they didn't realize that it applied to a lot of stuff. And it turns out it does. Whereas I think Gorsuch at least can say, “No, we care about the major-ness just now, because the nondelegation problem is partly created by unconstrained executive power now to do stuff.” But those are weird edge cases and it's not clear that's what they're really fighting about.
Dan: Yeah. Maybe I guess we'll have to wait and see if there's a case where they actually come to different results, right?
Will: Yeah. Do you wonder if at some point Justice Barrett is going to recant West Virginia vs. EPA?
Dan: Like, the result there.
Will: Yeah. Now that I've thought about it, I probably went along a little too quickly in that one. Maybe you can't do that.
Dan: Certainly can.
Will: Yeah.
Dan: Okay.
Will: Okay. Justice Kagan.
Dan: Okay. Another one that's not as long, mercifully, where she is trying to maintain, consistent with prior positions she's taken that there is no such thing as the major questions doctrine and why she thinks that here, unlike in some of the cases where she was in dissent in response to the application of the major questions doctrine, the statute, just as best read, does not allow this.
Will: Right. Although she doesn't spend a lot of time, though, explaining why this methodology wouldn't have required a different result in the previous cases. Because the Gorsuch attack is like, “Look, it's great that you're looking at things like, ‘This is an unprecedented use of the power. People didn't think you could do this before. But we could have said the same thing about student loan forgiveness.’”
Dan: On page two, she is talking about those prior cases. She says, "In the past, I've thought the Court used that doctrine to override rather than help discover the best reading of delegation statutes." I think here she's saying, “Well, you can look at those considerations, the kind of major questionsy type things, just to figure out what Congress meant, but you can't use it to override.”
Will: Right. No, I agree. I just think if you line up the kinds of considerations that are doing the work here and the kinds of considerations that she thought couldn't do as much work there-- Again, every case is in the eye of the beholder. So, I'm not saying she's being hypocritical, but I do think it's a little unsatisfying.
Dan: She has a footnote where she defends her consistency. She says, "Justice Gorsuch says, ‘I now must be applying the major questions doctrine in his own version of it.’ Given how strong his apparent desire for converts, I almost regret to inform him that I am not one. But that is the fact of the matter. I proceed in this case just as I did in West Virginia and Nebraska. I consider a delegation provision's language, broaden the scope to take in the statutory setting, and apply some common sense about how Congress normally delegates."
Will: Mm-hmm. "I'll let Justice Gorsuch relitigate on his own our old debates about other statutes unrelated to the one before us."
Dan: So, I think trying to respond to the accusation of hypocrisy.
Will: Yeah. Well, she responds to it by denying it, which is fine. But she doesn't respond to it by rebutting the evidence, which she doesn't have to.
Dan: Yeah. Okay. So, I think that's about all I have on that one. Then we have a short five-page opinion by Justice Jackson, robustly defending the use of legislative history.
WiIl: [laughs] Uh-huh.
Dan: I thought this was fine. If we were looking for some new intellectual underpinning for the use of legislative history, I don't think this really provided it.
Will: It's funny, just because I feel like the rejection of legislative history, like House and Senate committee reports, is one of those few areas where everybody reached consensus on.
Dan: Yeah.
Will: So, I like that Justice Jackson's bringing it back. I'm not sure she's wrong. I actually think in some ways the rejection of legislative history sometimes has gone overboard. The Court's gone from like, “Well, these things are manipulable and you shouldn't use and replace the text,” to like, “We just never want to know about them at all.”
Dan: Yeah, yeah, which of course don't exist.
Will: Famously not a standard that they apply to constitutional interpretations, where they're careful about when do we use these statements and when don't we. But anyway. So, it's not bad. It's just funny, because it's like the old meme about nobody, nobody, Justice Jackson. Actually, we should care about legislative history [Dan laughs] [unintelligible 01:11:50] committee reports. [chuckles]
Dan: Okay. So, then, dissent by Justice Thomas. He's got a new view of nondelegation. I confess I don't fully understand it. I was hoping you would explain it to me. [crosstalk]
Will: Yeah. This is great stuff. I feel like this opinion is getting a little bit dragged on the social media sites you have blocked. But Justice Thomas thinks that the nondelegation doctrine really, only applies to deprivations of life, liberty, and property, and so it's related to the Due Process Clause. And so, the executive branch bestowing gifts, grants, or administering the resources of the United States that's much less questionable in nondelegation doctrines versus making rules that affect people's life, liberty, and property.
Dan: So, why do tariffs not affect property?
Will: Well, they don't affect the property of citizens with due process rights.
Dan: Yeah, yeah. Although indirectly they do.
Will: Sure. And to get there, weaving together Michael McConnell's great book about the relationship between Article I, Article II, and the traditional powers of the King. It involves an underappreciated Aditya Bamzai article about the relationship between private rights and nondelegation. McConnell and Chapman on the relationship with the new process separation of powers clause. There's a really good Caleb Nelson, too.
This also has a great literature. He weaves them together in a way that may not quite be what any of them say. I need to spend some more time with this to figure out exactly where all the moving parts are. But that core idea is not crazy, both in terms of the values you might care about and about trying to figure out what an administrable line is between permissible and impermissible delegations.
Now, it does have some problems that Justice Gorsuch points out like, it's really not what anybody has been talking about in the nondelegation debates for a long time. So, it has a novel feel. And it's not consistent with a couple of the most canonical historical examples. Probably the most canonical example of a fight about nondelegation at the founding in those terms was the debate about establishing post roads, where Congress has this hilarious debate about whether they have to, in the post roads legislation, just specify the starting point and ending point of the road, or they also have to specify 18 points along the way.
Like, can the President have the discretion to figure out how to get from point A to point B, or do they have to tell him? And the forces that say no, no, no, they have to tell him, win. But under Justice Thomas' view, that was misconceived, because where the post road goes doesn't implicate life, liberty, or property.
Dan: Why would this just not be a structural implication of vesting clauses?
Will: Well, it is. But so, part of the question is what is legislative and what is executive? So, the McConnell view, which is originally the Kaczorowski view of the drafting of Article I and II, is that there are powers that are in their nature legislative and in their nature executive, which come from the British understanding of separation of powers.
Dan: And those are due processy powers?
Will: And some of the powers that are in their nature executive are given to Congress and some aren't. Things like tariffs that the King used to do now are given to Congress. And so, they are, in a way, when those are delegated back, it raises different kinds of questions than when powers that are in the nature legislative are exercised by Congress. It relates to the question of what would the inherent Article II authority have been as well.
Dan: Yeah.
Will: So, as I said, this part's a little complicated and I'm not totally sure I understand how the parts fit together from the sources. But part of the other problem is the nondelegation doctrine has always been a little bit tricky to derive from the vesting clauses alone, because everybody agrees-- Like, in a nondelegation case, the legislature has enacted a thing called a law that the President is purporting to carry into effect. The question is whether notwithstanding the fact that it's called a law and the President's carrying it into effect, it's still unconstitutional, because it's really a delegation.
Dan: Yeah.
Will: And so, that's why you need all these more complicated apparatuses about what is the power, what are the rules, what are the consequences to try to get there. The one other, I think funniest part of this opinion also, is about footnote one, which is about whether tariffs are taxes. And Justice Thomas explains that he's going to refer to these charges as duties, not tariffs or taxes, because traditionally charges for importing a custom impost is called a duty.
The word tariff was actually the name for the schedule of the listing of duties, not the duties themselves, and the word tax. I've seen this quoted as very political, because I guess-- I guess it's political, I guess it's a left-wing view to say that tariffs are taxes, [Dan chuckles] and the Trump administration's view, is that tariffs are not taxes, because everybody's against tax increases. I think that's the political stakes. So, I've seen this quoted as like, “Here is Justice Thomas pivoting the Trump talking point that tariffs are not taxes.” But it's funnier, because he actually thinks tariffs are not tariffs. [Dan laughs] He thinks these tariffs are actually duties. Yeah.
[laughter]
Dan: Okay. Well, I'm running out of steam. I think we should probably talk about the dissent. I don't know if you had anything you wanted to say about Gorsuch's response to the Thomas view.
Will: No, no, no.
Dan: Okay. And then, I don't think we're going to get through all 63 pages of the Kavanaugh dissent.
Will: Yeah.
Dan: This is like the Purdue Pharma case, where he had that incredibly long dissent. He was super mad.
Will: Yeah. Look, he thinks this is a big deal. President Nixon could do it.
Dan: Yeah. Can we just talk about the one piece which is this idea that the major questions doctrine just shouldn't apply in the foreign affairs context?
Will: Yeah.
Dan: So, I guess I just don't understand the overarching premise that foreign affairs is a thing for the President. There is no foreign affairs clause in the Constitution. That's in Article II. There's actually a bunch of discrete foreign affairs-relevant powers that are actually-- some of which go to Congress and some of which go to the President. And so, this is a thing that gets said a lot, including by Justice Kavanaugh, kind of a lot. It seems to me totally made up. It seems to be totally anachronistic and totally functionalist.
Will: Yeah. Look, Justice Kavanaugh is sometimes totally anachronistic and functionalist. Here are two points in defense of it, I guess. I do think there are a lot of cases that seem to create something like that across a range of doctrines. They might really be about other things. They might be that the jurisdiction of the U.S. courts usually doesn't apply extraterritorially, that a bunch of things that involve interactions with other countries are governed by the political question doctrine.
So, I do think if you're looking at the forest and not the trees, you might see a big foreign affairs forest where the judiciary usually fears to tread. And that's where Gorsuch says, “Well, yeah, that's because a lot of those things are Article II powers. They're different Article II powers, and here there isn't an Article II power, so that's why it's different.” And then, Kavanaugh responds to the “thoughtful” concurrence by Justice Gorsuch to say, “Yeah, okay, but it would be jurisprudentially chaotic to try to now create a new approach tying the applicability of the major questions canon in the foreign affairs context to such uncertain triggers.”
I think what Justice Kavanaugh might say is, “Look, in a different world where Justice Gorsuch was in charge, we would have always been careful in all those cases to explain where our foreign affairs carve-outs were coming from. But the truth is we didn't. We just created a foreign affairs forest. And now if you, Justice Gorsuch, want to head in there and try to kind of carefully map how it actually works onto the clause, that's a lot of work and jurisprudentially chaotic, and I'm just going with the forest.” I do think that's not giving the precedents enough careful credit, and it's not very lawyerly, but there's a common-sense aspect to it, I think.
Dan: Okay.
Will: I heard somebody suggest this opinion was evidence that Justice Kavanaugh was auditioning to be appointed Chief Justice.
Dan: What?
Will: No.
Dan: But there's not a vacancy for Chief Justice.
Will: Well, as we all know, various people have been calling on the Chief Justice to resign for a decade now.
Dan: [chuckles] That seems unlikely. Chief Justice I think he's 71. I think he enjoys his job. I think he's doing a perfectly good job at it. So, I don't think he's going anywhere in the next two or three years.
Will: Yeah. I guess the charge is that this is an opinion written to please Trump.
Dan: No.
Will: I don't buy it. I don't think-- [crosstalk]
Dan: No, I think these are his views. He's very pro-president, pro-executive power. I wish I would like to see a little bit more consistency when you compare this with the Biden era major questions cases. I think that inconsistency is a little harder to justify.
Will: Yeah. So, is this case a big deal?
Dan: I think so in a couple of ways. First, politically, it's the biggest rebuke the Court has given to this administration. It's going to change the President's rhetoric with respect to the Court. And how that goes, I think, is maybe going to inform how the Court treats him in the next couple years. Not formally, but I think that if the President is really taking a bunch of broadsides against the Court, that might make them a little bit less inclined to give him any benefit of the doubt. So, that seems important.
In terms of the economy, I guess we need to see exactly how it shakes out, whether the President is able to completely restore this same regime cobbling together some other authorities. I don't know. I just don't know enough to know. My guess is it's actually going to be a little harder to do exactly what he's been doing. And so, that could have some meaningful economic impact. So, I don't know.
We are seeing at least some of the conservative Justices showing us a little bit of methodological consistency, applying rules that seem to be developed for reining in Democratic administrations, applying it to a Republican one. So, there's something to that. Now, I think I already previewed this, but some of my lefty friends are immediately going to go to [chuckles] the interests of capital win over Trump. We'll see. It would be nice to have a rebuke of the president in the immigration context or something, and we will see if we get one of those by the end of the term.
Will: Right. And Abrego Garcia and A.A.R.P. v. Trump don't count.
Dan: Yeah, they're muted, right? They're not nothing.
Will: No, I've heard the version of, yes, the lesson is you can mess with the immigrants all you want, but don't mess with the bond markets. Again, I don't think that's fair. I was actually trying to think: when is the last time the Court ruled against the President on an executive action that was this important to him? Obviously, Youngstown. And then, the question is, is Boumediene v. Bush may be--?
Dan: [crosstalk] student loans? No. You don't think so? Not as important.
Will: Not nearly as important.
Dan: The COVID stuff.
Will: I don't think Biden wasn't mad.
Dan: Yeah.
Will: He probably wanted to lose that case.
Dan: [chuckles] Maybe. What about the Medicaid expansion and the Affordable Care Act?
Will: Yeah, that's the stat. I don't know. I'm tempted to say this is the second coming of Youngstown, but also that part of the striking thing, is that there hasn't been a second coming of Youngstown since Youngstown.
Dan: Yeah, that's interesting.
Will: And that, in a way, makes the opinion anticlimactic. Like, you read Youngstown and it's like, “Okay, the president has to follow law.” Big whoop. But when the Court says no to the president about something that he really cares about, it's actually always a little bit of a miracle.
Dan: Yeah. Okay. Well, I think that's what we got, right?
Will: Yeah.
Dan: Thanks very much for listening. Please rate and review on the Apple Podcast app or wherever you get your podcasts. Visit our website, dividedargument.com, for episode transcripts, blog.dividedargument.com for posts and commentary by the extended Divided Argument universe, store.dividedargument.com for merchandise. Send us an email at pod@dividedargument.com, or leave us a voicemail 314-649-3790.
Will: Thanks to the Constitutional Law Institute for sponsoring all of our endeavors. Thanks to Deb Cafaro for your support of the Constitutional Law Institute, and thanks as well to the University of Chicago Women's Board.
Dan: And if there's a long delay between this and our next episode, it will be because we've gotten stuck in a very deep rabbit hole trying to figure out the origin of "No, no, a thousand times no."
Will: Yes.
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