What difference will this make? How will it be used? Are there going to be suits for reimbursements on lost income? So many questions. Gorsuch is more of a pompous ass than even *I* thought.
So, according to Justice Thomas, Congress can't delegate deprivation of property, but it can delegate taxation of imports. Riiiiight. Silly me - I thought conservatives believed taxation was depriving people of their own money. But apparently that's only when Democrats do it.
The Supreme Court „Actually“ doing his job is the only thing that is worth noting. It was clear to anyone with a brain (everyone aside MAGA) that the Orange Fascist cannot unilaterally pull emergencies out of his fatazz to subjugate and blackmail other Countries while destroying the US and the World Economy in the process.
Great decision! (One hopes Trump and his DoJ will not ignore this one.) But I wonder that they “do, in fact, know how to do law” only when forced to … given how they have give Trump so many passes.
So the clues are that the written decision seems to say “Not this time but hit me up again in the future.” It also seems to hint with the “dwarfs” comment that there might be a salve for The Felon in other big decisions coming down. The birthright citizenship issue springs to mind and actually worries me for this reason. When born in Rome…
What we do know from past pattern, The Felon won’t let this go, and he will do something terrible to distract from his loss.
The only persuasive comment in J. Brett "Kavanaugh Stops" dissent is that the decision "will cause a big mess", and so it will, as I don't believe that the majority offered any guidelines as to what's next.
"Gorsuch, essentially thinks virtually everyone else is wrong, hypocritical, or both. He, virtually alone, is pure."
Yup. He has quotable language, but two women justices (Barrett and Kagan) basically told him to stop mansplaining. Twenty plus more years of this pompous ass is distressing.
Richard Hasen in his book about Scalia has a chapter on "word games" and what lawmakers actually consider when writing laws. He overlaps with Jackson.
It’s kind of Mr. John Roberts, Chief Justice of the United States Supreme Court, to take a moment to make me laugh.
“Shortly after taking office, President Trump sought to address two foreign threats: the influx of illegal drugs from Canada, Mexico, and China…and “large and persistent” trade deficits…The President determined that the drug influx had “created a public health crisis,”...and that the trade deficits had “led to the hollowing out” of the American manufacturing base and “undermined critical supply chains.”” This interesting juxtaposition had me imagining the president's concern that the influx of illegal drugs is hollowing out their US manufacture and distribution.
But that was just a warmup.
“The Framers…gave Congress “alone . . . access to the pockets of the people.” The Federalist No. 48, p. 310 (J. Madison). The Framers did not vest any part of the taxing power in the Executive Branch…The Government thus concedes that the President enjoys no inherent authority to impose tariffs during peacetime.”
The Government does? It does now.
Better yet, “The Court has long expressed “reluctan[ce] to read into ambiguous statutory text” extraordinary delegations of Congress’s powers.”
The Court has? Wonderful! Please feel free to be as reluctant as you like, since no text vests in Congress a power to revest its own powers, undoing the people’s vestitures.
The Court now believes it has consistently held that “Congress would not have delegated “highly consequential power” through ambiguous language.”
What’s the current count of extraordinary delegations of Congress’ powers by ambiguous statutory text? Of delegating highly consequential power through ambiguous language?
In one sentence the Court has declared them all unenforceable.
The CJ quickly qualifies that one, requiring the Court’s own designation of a “major question.” Still wonderful!
Mind you, extraordinary delegations of Congress’ powers by plain language remain enforceable. Extraconstitutional powers, little things Congress has been vesting in presidents since The Decision of 1789, are untouched. But somewhere a law student is already checking statutory language for vagueness and majorness of question, a fairly silly doctrine since what requires constitutional text can hardly be minor.
“Against that backdrop of clear [???] and limited [???] delegations, the Government reads IEEPA to give the President power to unilaterally impose unbounded tariffs and change them at will. That view would represent a transformative expansion of the President’s authority over tariff policy.” Now that sounds more like the Government I know.
Exhausted by so much accuracy, the decision drops into characteristic error, relying on history (nowhere does the Constitution so empower history) and caselaw (Amdt VII expressly bars this one in federal cases, except to keep juries’ findings of fact consistent). And characteristically sets finance over human rights with, “The stakes here dwarf those of other major questions cases.” But more goodies are coming.
“There is no exception to the major questions doctrine for emergency statutes. Nor does the fact that tariffs implicate foreign affairs render the doctrine inapplicable. The Framers gave “Congress alone” the power to impose tariffs during peacetime…And the foreign affairs implications of tariffs do not make it any more likely that Congress would relinquish its tariff power through vague language, or without careful limits.” Hello, Iran? And could you please pass it on to Gaza? Their phones may be out.
The Court even discovers to its own apparent amusement that IEEPA is unconstitutional at least where it authorizes the President to “regulate . . . exportation.” §1702(a)(1)(B). “[T]axing exports is expressly forbidden by the Constitution.” Correct! I can no longer let them off reading the text. The Justice have demonstrated their literacy and nothing, nothing will budge me from this ever again.
Citing (especially Black’s) is not reading, but still. “The term “regulate,” as ordinarily used, means to “fix, establish, or control; to adjust by rule, method, or established mode; to direct by rule or restriction; to subject to governing principles or laws.” CJ Roberts has literally expressed that “to regulate” is to legislate. “To fix” something sets it in stone, if you don’t mind a reference to Moses the lawgiver. The root of “to establish” is “statute.” I see “to adjust by rule; to direct by rule or restriction,” but as head of the Judicial Conference the Chief Justice can’t be expected to find the rulemaking power is Congress’ just yet. Wait for an environmental case.
But, “to subject to governing…laws.”
Pause.
Pause some more.
OK, I have to go on, because Justice Barrett is squirming to have me read about Congress’ “birth-right power.”
Tariffs are of course taxes, and Republicans hate ‘em even more than Democrats. Since I'm laughing too hard to read any more, I'm going to have to hold out hope for at least FedSoc to whine that to “block during the pendency of an investigation…[or] 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” is in some manner to tax.
Justice Thomas sometimes highlights that he's a fraud and a charlatan. This is one of those times. No originalist (or ANYONE) fulfilling the oath to support and defend our Constitution against domestic enemies) can plausibly believe that Congress can delegate to the president the power to impose the tariffs Trump illegally imposed.
One of the primary purposes of the entire American Revolution was to preclude "taxation without representation." Representation to the people of the American Revolution meant something specific--representation in Parliament. That principle (and more) was addressed explicitly in our Constitution. Representation to the people who wrote and ratified our Constitution meant specifically in the House of Representatives (hence the name).
In Article I the People commanded that "All Bills for raising Revenue shall originate in the House of Representatives." Trump, himself, repeatedly insisted that his so-called tariffs had the purpose of raising revenue. There's no way Congress can delegate such power to the President. This always has been one of the most important pillars of the separation of powers between executive and legislative branches.
This particular power (and the restraint on the power) of the House of Representatives always has been one of the most important pillars of the separation of powers between the sovereign people and all our public servants. There's a crucial protection that is even more fundamentally structural than the separation of powers (between legislative and executive branches) that underlies the command (by the People) that "All Bills for raising Revenue shall originate in the House of Representatives."
The members of the House of Representatives are the representatives of the people who (from the outset) were most directly and most often subject to the approval or removal by the people. The second sentence of Article I emphasized that the people can replace any or even all the members of the House every 2 years: "The House of Representatives shall be composed of Members chosen every second Year by the People of the several States." That is a crucial limitation on the power of the House to initiate laws for which we, the people, will have to pay.
It wasn't until the Seventeenth Amendment (in 1913) that the people reserved to themselves the power to elect Senators directly. And to this day, only 1/3 of the Senate can be removed by voters every 2 years.
In 2019, Justices Gorsuch and Thomas and Chief Justice Roberts issued a dissenting opinion in Gundy v. United States to highlight the following about the separation of powers and how it was designed to serve and support not only the liberty, but also the sovereignty, of the people.
"The framers warned us against permitting consequences like these. As Madison explained, '[t]here can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates.’” The framers knew . . . [that] enforcing the separation of powers isn’t about protecting institutional prerogatives or governmental turf. It’s about respecting the people’s sovereign choice to vest the legislative power in Congress alone. And it’s about safeguarding a structure designed to protect their liberties, minority rights, fair notice, and the rule of law. So when a case or controversy comes within the judicial competence, the Constitution does not permit judges to look the other way; we must call foul when the constitutional lines are crossed. Indeed, the framers afforded us independence from the political branches in large part to encourage exactly this kind of 'fortitude . . . to do [our] duty as faithful guardians of the Constitution.' ”
"Our founding document begins by declaring that 'We the People . . . ordain and establish this Constitution.' At the time, that was a radical claim, an assertion that sovereignty belongs not to a person or institution or class but to the whole of the people. From that premise, the Constitution proceeded to vest the authority to exercise different aspects of the people’s sovereign power in distinct entities. In Article I, the Constitution entrusted all of the federal government’s legislative power to Congress. In Article II, it assigned the executive power to the President. And in Article III, it gave independent judges the task of applying the laws to cases and controversies.
To the framers, each of these vested powers had a distinct content. . . . Why did the framers insist on this particular arrangement? They believed the new federal government’s most dangerous power was the power to enact laws restricting the people’s liberty. An 'excess of law-making' was, in their words, one of 'the diseases to which our governments are most liable.' To address that tendency, the framers went to great lengths to make lawmaking difficult. In Article I, by far the longest part of the Constitution, the framers insisted that any proposed law must win the approval of two Houses of Congress—elected at different times, by different constituencies, and for different terms in office—and either secure the President’s approval or obtain enough support to override his veto. Some occasionally complain about Article I’s detailed and arduous processes for new legislation, but to the framers these were bulwarks of liberty."
The opinion pretty much is a recommendation for Congress to formally legislate tariff power to the president. If the indoctrinated continue as the house majority and senate much longer, they might just do that. If so, why do we need congress at all?
Nowadays, 6 to 3 is practically unanimous.
Good.
Republicans in Congress are stunned that they actually have power.
They know they have it. They have simply chosen not to use it in any way that would impede or annoy their lord and master.
The law is clear, many conservatives think the tariffs are horrible, and they get to show they are independent. So yeah.
What difference will this make? How will it be used? Are there going to be suits for reimbursements on lost income? So many questions. Gorsuch is more of a pompous ass than even *I* thought.
So, according to Justice Thomas, Congress can't delegate deprivation of property, but it can delegate taxation of imports. Riiiiight. Silly me - I thought conservatives believed taxation was depriving people of their own money. But apparently that's only when Democrats do it.
The Supreme Court „Actually“ doing his job is the only thing that is worth noting. It was clear to anyone with a brain (everyone aside MAGA) that the Orange Fascist cannot unilaterally pull emergencies out of his fatazz to subjugate and blackmail other Countries while destroying the US and the World Economy in the process.
Great decision! (One hopes Trump and his DoJ will not ignore this one.) But I wonder that they “do, in fact, know how to do law” only when forced to … given how they have give Trump so many passes.
So the clues are that the written decision seems to say “Not this time but hit me up again in the future.” It also seems to hint with the “dwarfs” comment that there might be a salve for The Felon in other big decisions coming down. The birthright citizenship issue springs to mind and actually worries me for this reason. When born in Rome…
What we do know from past pattern, The Felon won’t let this go, and he will do something terrible to distract from his loss.
And find another bogus way to punish the rest of the world … except Russia, North Korea and Hungary.
The only persuasive comment in J. Brett "Kavanaugh Stops" dissent is that the decision "will cause a big mess", and so it will, as I don't believe that the majority offered any guidelines as to what's next.
Kavanaugh is a big mess. “I like beer!!”
"Gorsuch, essentially thinks virtually everyone else is wrong, hypocritical, or both. He, virtually alone, is pure."
Yup. He has quotable language, but two women justices (Barrett and Kagan) basically told him to stop mansplaining. Twenty plus more years of this pompous ass is distressing.
Richard Hasen in his book about Scalia has a chapter on "word games" and what lawmakers actually consider when writing laws. He overlaps with Jackson.
Justice Gorsuch: “MAGA—lookit me! Chief Justice, big me!”
It’s kind of Mr. John Roberts, Chief Justice of the United States Supreme Court, to take a moment to make me laugh.
“Shortly after taking office, President Trump sought to address two foreign threats: the influx of illegal drugs from Canada, Mexico, and China…and “large and persistent” trade deficits…The President determined that the drug influx had “created a public health crisis,”...and that the trade deficits had “led to the hollowing out” of the American manufacturing base and “undermined critical supply chains.”” This interesting juxtaposition had me imagining the president's concern that the influx of illegal drugs is hollowing out their US manufacture and distribution.
But that was just a warmup.
“The Framers…gave Congress “alone . . . access to the pockets of the people.” The Federalist No. 48, p. 310 (J. Madison). The Framers did not vest any part of the taxing power in the Executive Branch…The Government thus concedes that the President enjoys no inherent authority to impose tariffs during peacetime.”
The Government does? It does now.
Better yet, “The Court has long expressed “reluctan[ce] to read into ambiguous statutory text” extraordinary delegations of Congress’s powers.”
The Court has? Wonderful! Please feel free to be as reluctant as you like, since no text vests in Congress a power to revest its own powers, undoing the people’s vestitures.
The Court now believes it has consistently held that “Congress would not have delegated “highly consequential power” through ambiguous language.”
What’s the current count of extraordinary delegations of Congress’ powers by ambiguous statutory text? Of delegating highly consequential power through ambiguous language?
In one sentence the Court has declared them all unenforceable.
The CJ quickly qualifies that one, requiring the Court’s own designation of a “major question.” Still wonderful!
Mind you, extraordinary delegations of Congress’ powers by plain language remain enforceable. Extraconstitutional powers, little things Congress has been vesting in presidents since The Decision of 1789, are untouched. But somewhere a law student is already checking statutory language for vagueness and majorness of question, a fairly silly doctrine since what requires constitutional text can hardly be minor.
“Against that backdrop of clear [???] and limited [???] delegations, the Government reads IEEPA to give the President power to unilaterally impose unbounded tariffs and change them at will. That view would represent a transformative expansion of the President’s authority over tariff policy.” Now that sounds more like the Government I know.
Exhausted by so much accuracy, the decision drops into characteristic error, relying on history (nowhere does the Constitution so empower history) and caselaw (Amdt VII expressly bars this one in federal cases, except to keep juries’ findings of fact consistent). And characteristically sets finance over human rights with, “The stakes here dwarf those of other major questions cases.” But more goodies are coming.
“There is no exception to the major questions doctrine for emergency statutes. Nor does the fact that tariffs implicate foreign affairs render the doctrine inapplicable. The Framers gave “Congress alone” the power to impose tariffs during peacetime…And the foreign affairs implications of tariffs do not make it any more likely that Congress would relinquish its tariff power through vague language, or without careful limits.” Hello, Iran? And could you please pass it on to Gaza? Their phones may be out.
The Court even discovers to its own apparent amusement that IEEPA is unconstitutional at least where it authorizes the President to “regulate . . . exportation.” §1702(a)(1)(B). “[T]axing exports is expressly forbidden by the Constitution.” Correct! I can no longer let them off reading the text. The Justice have demonstrated their literacy and nothing, nothing will budge me from this ever again.
Citing (especially Black’s) is not reading, but still. “The term “regulate,” as ordinarily used, means to “fix, establish, or control; to adjust by rule, method, or established mode; to direct by rule or restriction; to subject to governing principles or laws.” CJ Roberts has literally expressed that “to regulate” is to legislate. “To fix” something sets it in stone, if you don’t mind a reference to Moses the lawgiver. The root of “to establish” is “statute.” I see “to adjust by rule; to direct by rule or restriction,” but as head of the Judicial Conference the Chief Justice can’t be expected to find the rulemaking power is Congress’ just yet. Wait for an environmental case.
But, “to subject to governing…laws.”
Pause.
Pause some more.
OK, I have to go on, because Justice Barrett is squirming to have me read about Congress’ “birth-right power.”
Tariffs are of course taxes, and Republicans hate ‘em even more than Democrats. Since I'm laughing too hard to read any more, I'm going to have to hold out hope for at least FedSoc to whine that to “block during the pendency of an investigation…[or] 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” is in some manner to tax.
Hello, Venezuela?
Reading your report, it sounds like members of the Court are kind of fighting and getting snippy with each other. Interesting.
It certainly does. While reading Coney-Barrett’s comment I could almost hear the elementary school chant of “Fight! FightI FightI Fight!”.
Justice Thomas sometimes highlights that he's a fraud and a charlatan. This is one of those times. No originalist (or ANYONE) fulfilling the oath to support and defend our Constitution against domestic enemies) can plausibly believe that Congress can delegate to the president the power to impose the tariffs Trump illegally imposed.
One of the primary purposes of the entire American Revolution was to preclude "taxation without representation." Representation to the people of the American Revolution meant something specific--representation in Parliament. That principle (and more) was addressed explicitly in our Constitution. Representation to the people who wrote and ratified our Constitution meant specifically in the House of Representatives (hence the name).
In Article I the People commanded that "All Bills for raising Revenue shall originate in the House of Representatives." Trump, himself, repeatedly insisted that his so-called tariffs had the purpose of raising revenue. There's no way Congress can delegate such power to the President. This always has been one of the most important pillars of the separation of powers between executive and legislative branches.
This particular power (and the restraint on the power) of the House of Representatives always has been one of the most important pillars of the separation of powers between the sovereign people and all our public servants. There's a crucial protection that is even more fundamentally structural than the separation of powers (between legislative and executive branches) that underlies the command (by the People) that "All Bills for raising Revenue shall originate in the House of Representatives."
The members of the House of Representatives are the representatives of the people who (from the outset) were most directly and most often subject to the approval or removal by the people. The second sentence of Article I emphasized that the people can replace any or even all the members of the House every 2 years: "The House of Representatives shall be composed of Members chosen every second Year by the People of the several States." That is a crucial limitation on the power of the House to initiate laws for which we, the people, will have to pay.
It wasn't until the Seventeenth Amendment (in 1913) that the people reserved to themselves the power to elect Senators directly. And to this day, only 1/3 of the Senate can be removed by voters every 2 years.
In 2019, Justices Gorsuch and Thomas and Chief Justice Roberts issued a dissenting opinion in Gundy v. United States to highlight the following about the separation of powers and how it was designed to serve and support not only the liberty, but also the sovereignty, of the people.
"The framers warned us against permitting consequences like these. As Madison explained, '[t]here can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates.’” The framers knew . . . [that] enforcing the separation of powers isn’t about protecting institutional prerogatives or governmental turf. It’s about respecting the people’s sovereign choice to vest the legislative power in Congress alone. And it’s about safeguarding a structure designed to protect their liberties, minority rights, fair notice, and the rule of law. So when a case or controversy comes within the judicial competence, the Constitution does not permit judges to look the other way; we must call foul when the constitutional lines are crossed. Indeed, the framers afforded us independence from the political branches in large part to encourage exactly this kind of 'fortitude . . . to do [our] duty as faithful guardians of the Constitution.' ”
"Our founding document begins by declaring that 'We the People . . . ordain and establish this Constitution.' At the time, that was a radical claim, an assertion that sovereignty belongs not to a person or institution or class but to the whole of the people. From that premise, the Constitution proceeded to vest the authority to exercise different aspects of the people’s sovereign power in distinct entities. In Article I, the Constitution entrusted all of the federal government’s legislative power to Congress. In Article II, it assigned the executive power to the President. And in Article III, it gave independent judges the task of applying the laws to cases and controversies.
To the framers, each of these vested powers had a distinct content. . . . Why did the framers insist on this particular arrangement? They believed the new federal government’s most dangerous power was the power to enact laws restricting the people’s liberty. An 'excess of law-making' was, in their words, one of 'the diseases to which our governments are most liable.' To address that tendency, the framers went to great lengths to make lawmaking difficult. In Article I, by far the longest part of the Constitution, the framers insisted that any proposed law must win the approval of two Houses of Congress—elected at different times, by different constituencies, and for different terms in office—and either secure the President’s approval or obtain enough support to override his veto. Some occasionally complain about Article I’s detailed and arduous processes for new legislation, but to the framers these were bulwarks of liberty."
We already have a big mess due to the failure of most of the Roberts court to assert their independence from Trump.
The opinion pretty much is a recommendation for Congress to formally legislate tariff power to the president. If the indoctrinated continue as the house majority and senate much longer, they might just do that. If so, why do we need congress at all?
You’re right, Roberta, but in a significant way, if they forfeit their power because of fear of “their lord and master,” they may as well not have it.
Ach, Gorsuch—It’s really all about me! Wonder where he got that?
I waited for your comment for my first restack of the day.