Finally (!) finished reading the 170-page (!!) IEEPA/Trump tariffs case, Learning Resources v. Trump.
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Finally (!) finished reading the 170-page (!!) IEEPA/Trump tariffs case, Learning Resources v. Trump. Yes, I’m glad that the immediate result was the Supreme Court clearly invalidating a Trump effort to assert dictatorial power. But the opinions in the case as a group showcase the mediocrity of the Roberts Court as a whole. #LawFedi 1/
Roberts, writing for the Court, failed to deliver a crisp holding and argument, which is the way to tell a would-be dictatorial, anti-constitutional-democracy President what’s what. 2/
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Roberts, writing for the Court, failed to deliver a crisp holding and argument, which is the way to tell a would-be dictatorial, anti-constitutional-democracy President what’s what. 2/
All Roberts should have had to say: the text of IEEPA, read against long-established Congressional practice in the area of delegating any tariff authority to the President, makes plain that Congress did not authorize the President to unilaterally impose tariffs in peacetime. The Constitution assigns this authority to Congress. Therefore, tariffs imposed by Trump under IEEPA fail. 3/
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All Roberts should have had to say: the text of IEEPA, read against long-established Congressional practice in the area of delegating any tariff authority to the President, makes plain that Congress did not authorize the President to unilaterally impose tariffs in peacetime. The Constitution assigns this authority to Congress. Therefore, tariffs imposed by Trump under IEEPA fail. 3/
But because Gorsuch and Barrett had axes to grind, and Roberts needed to bring at least one of them on board, he decided to wade into “the major question doctrine” and go on about statutory interpretation as if this is some sort of deep hermenuetic enterprise. 4/
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But because Gorsuch and Barrett had axes to grind, and Roberts needed to bring at least one of them on board, he decided to wade into “the major question doctrine” and go on about statutory interpretation as if this is some sort of deep hermenuetic enterprise. 4/
Gorsuch, Barrett, and Kavanaugh are in an ongoing war to be the next Scalia: the Conservative Justices’ Statutory Construction Guru (the CJSCG
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️). This position enables the holder to write as if values, including political and ethical ones, are not driving her decisions, nay do not even her mind unconsciously as they makes them. Only words and value-free application of value-free tools of statutory construction determine the positions the CJSCG, to be then decreed by the Court. 5/ -
Gorsuch, Barrett, and Kavanaugh are in an ongoing war to be the next Scalia: the Conservative Justices’ Statutory Construction Guru (the CJSCG
️️). This position enables the holder to write as if values, including political and ethical ones, are not driving her decisions, nay do not even her mind unconsciously as they makes them. Only words and value-free application of value-free tools of statutory construction determine the positions the CJSCG, to be then decreed by the Court. 5/Rather than focus on the substance and foundationally constitutional significance of the outcome of this case, Roberts’ opinion set the stage for Gorsuch, Barrett, and Kavanaugh to reduce it to a battle in their War for the CJSCG Title. Consider, for example, Gorsuch’s concurrence. It takes him two sentences to say he concurs with the Court’s essential point (see my post 3). It then takes him scores of pages to pontificate about the statutory interpretation that he has undertaken to agree. 6/
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Rather than focus on the substance and foundationally constitutional significance of the outcome of this case, Roberts’ opinion set the stage for Gorsuch, Barrett, and Kavanaugh to reduce it to a battle in their War for the CJSCG Title. Consider, for example, Gorsuch’s concurrence. It takes him two sentences to say he concurs with the Court’s essential point (see my post 3). It then takes him scores of pages to pontificate about the statutory interpretation that he has undertaken to agree. 6/
Along the way, Gorsuch not only has to connect all of this to his insistence that there is such a thing as “the major questions doctrine” and this case CANNOT be decided without it; so, he tells Kagan, Sotomayor, and Jackson, anybody in the majority is necessarily committed to the existence of the major questions doctrine. 7/
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Along the way, Gorsuch not only has to connect all of this to his insistence that there is such a thing as “the major questions doctrine” and this case CANNOT be decided without it; so, he tells Kagan, Sotomayor, and Jackson, anybody in the majority is necessarily committed to the existence of the major questions doctrine. 7/
Naturally, Barrett, who wants to be CJSCG as badly as anyone, then has to write her own tome about her approach to statutory construction — which leads her to — surprise, since she’s concurring — take the same position as Gorsuch! 8/
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Naturally, Barrett, who wants to be CJSCG as badly as anyone, then has to write her own tome about her approach to statutory construction — which leads her to — surprise, since she’s concurring — take the same position as Gorsuch! 8/
Kavanaugh’s dissent’s bottom line: there is no problem with the President dictatorially usurping Congress’ tariff power, because, as it turns out Congress has being building up for decades to give Trump whatever dictatorial powers he wants. Alito and Thomas are with this program so they join the dissent. But bc he’s fighting to be CJSCG, Kavanaugh has to write MANY pages on his uniquely correct and distinctive statutory construction method which leads him to say Trump can do what he pleases. 9/
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Kavanaugh’s dissent’s bottom line: there is no problem with the President dictatorially usurping Congress’ tariff power, because, as it turns out Congress has being building up for decades to give Trump whatever dictatorial powers he wants. Alito and Thomas are with this program so they join the dissent. But bc he’s fighting to be CJSCG, Kavanaugh has to write MANY pages on his uniquely correct and distinctive statutory construction method which leads him to say Trump can do what he pleases. 9/
Kagan in her concurrence quickly agrees with Roberts’ opinion’s “conclusion, as [she does] with the bulk of the principal opinion’s reasoning.” But having been told by Gorsuch what she thinks, Kagan writes at some length to tell him no, she does not. This does yield some of the best writing in the case by anyone, though the passage is fleeting and buried in a footnote:… 10/
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Kagan in her concurrence quickly agrees with Roberts’ opinion’s “conclusion, as [she does] with the bulk of the principal opinion’s reasoning.” But having been told by Gorsuch what she thinks, Kagan writes at some length to tell him no, she does not. This does yield some of the best writing in the case by anyone, though the passage is fleeting and buried in a footnote:… 10/
“JUSTICE GORSUCH claims not to understand this statement, insisting that I now must be applying the major-questions doctrine, and his own version of it to boot. See ante, at 17 (concurring opinion) ("My concurring colleagues all but endorse it today"); ante, at 2, 7, 18 (similar). Given how strong his apparent desire for converts, see ante, at 2-26, I almost regret to inform him that I am not one. But that is the fact of the matter.” Kagan, footnote 1. 11/
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“JUSTICE GORSUCH claims not to understand this statement, insisting that I now must be applying the major-questions doctrine, and his own version of it to boot. See ante, at 17 (concurring opinion) ("My concurring colleagues all but endorse it today"); ante, at 2, 7, 18 (similar). Given how strong his apparent desire for converts, see ante, at 2-26, I almost regret to inform him that I am not one. But that is the fact of the matter.” Kagan, footnote 1. 11/
@heidilifeldman@mastodon.social you can be a Supreme Court justice and still, apparently, have to deal with Reply Guys as your peers.
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“JUSTICE GORSUCH claims not to understand this statement, insisting that I now must be applying the major-questions doctrine, and his own version of it to boot. See ante, at 17 (concurring opinion) ("My concurring colleagues all but endorse it today"); ante, at 2, 7, 18 (similar). Given how strong his apparent desire for converts, see ante, at 2-26, I almost regret to inform him that I am not one. But that is the fact of the matter.” Kagan, footnote 1. 11/
Thomas has his own dissent, which I am not dignifying with comment. /12
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Thomas has his own dissent, which I am not dignifying with comment. /12
I saw "Thomas dissents" and thought, well that can only be good news, then. LOL
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Thomas has his own dissent, which I am not dignifying with comment. /12
The United States is under attack by an anti-constitutional, authoritarian President. The current Supreme Court cannot manage a crisp 6-3 decision about one small component of the regime’s disregard for the Constitution and for Congress. What we got instead
️ 13/13
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Thomas has his own dissent, which I am not dignifying with comment. /12
there is no possible way to dignify thomas. he showed he was slime at his confirmation hearing and nothing he has ever done in the SCOTUS has ever contradicted that.
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The United States is under attack by an anti-constitutional, authoritarian President. The current Supreme Court cannot manage a crisp 6-3 decision about one small component of the regime’s disregard for the Constitution and for Congress. What we got instead
️ 13/13@heidilifeldman Thanks for the thread! So I guess the conservative doctrine of strict constructionism and adherence to original intent is dead, eh? (Of course, they drove a stake through that quaint concept with the immunity ruling in '24.)
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Gorsuch, Barrett, and Kavanaugh are in an ongoing war to be the next Scalia: the Conservative Justices’ Statutory Construction Guru (the CJSCG
️️). This position enables the holder to write as if values, including political and ethical ones, are not driving her decisions, nay do not even her mind unconsciously as they makes them. Only words and value-free application of value-free tools of statutory construction determine the positions the CJSCG, to be then decreed by the Court. 5/I would like to remind the readers that in 2000 Scalia (and every other justice then seated) lit their entire jurisprudence career - which turned out to be written on nitrocellulose.
Scalia outlived his reputation considerably, imo.
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The United States is under attack by an anti-constitutional, authoritarian President. The current Supreme Court cannot manage a crisp 6-3 decision about one small component of the regime’s disregard for the Constitution and for Congress. What we got instead
️ 13/13@heidilifeldman Thank you for proving I got today's daily Roberts curse right. https://c.im/@msbellows/116115096883612516
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Finally (!) finished reading the 170-page (!!) IEEPA/Trump tariffs case, Learning Resources v. Trump. Yes, I’m glad that the immediate result was the Supreme Court clearly invalidating a Trump effort to assert dictatorial power. But the opinions in the case as a group showcase the mediocrity of the Roberts Court as a whole. #LawFedi 1/
The Federalist Society will be very disappointed with that assessment.
Koch Network was aiming for complete incompetence & corruption.
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Kavanaugh’s dissent’s bottom line: there is no problem with the President dictatorially usurping Congress’ tariff power, because, as it turns out Congress has being building up for decades to give Trump whatever dictatorial powers he wants. Alito and Thomas are with this program so they join the dissent. But bc he’s fighting to be CJSCG, Kavanaugh has to write MANY pages on his uniquely correct and distinctive statutory construction method which leads him to say Trump can do what he pleases. 9/
@heidilifeldman who was it that paid kavanaughs couple hundred k debt??
