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The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
New in City Journal: "Trump's Tariff Loss Is the Worst Judicial Defeat in Presidential History"
"From Jefferson to Lincoln, Nixon to Bush, no president’s agenda has been so thoroughly undercut by the Supreme Court."
Has any President ever lost such a significant case before the Supreme Court? I don't think so. That is the theme of my latest piece in City Journal, titled "Trump's Tariff Loss Is the Worst Judicial Defeat in Presidential History."
Here is the introduction:
How bad was President Trump's loss last week at the Supreme Court in the tariffs case? Really bad.
How does this defeat compare with other losses suffered by presidents at the Court? There is no sugarcoating it: the Roberts Court handed Trump the worst judicial defeat in presidential history.
There isn't even a close second. Not Richard Nixon's Watergate case. Not Franklin D. Roosevelt's New Deal setback. Not Harry S. Truman's attempt to seize steel mills. Not George W. Bush's War on Terror losses. None were in the same ballpark as the ruling in Learning Resources v. Trump. Even when those presidents lost, their own appointees generally ruled in their favor—in contrast to Trump, who saw two of his own nominees rule against him.
The results suggest that Trump will suffer many more defeats in the remainder of his second term—often through the votes of justices he selected.
And the conclusion:
All these defeats pale in comparison with the tariffs case. While Justice Kavanaugh argued that the president could use other powers to accomplish the same ends, time will tell whether a majority of the Court would reject these grounds, as well. In any case, the Learning Resources ruling has greatly diminished tariffs' utility as a bargaining chip, since negotiators on the other side of the table now have ample reason to believe that the courts will bail them out.
It remains to be seen whether the Supreme Court will continue to hobble President Trump for the remainder of his second term, but the tariff ruling suggests a rocky road ahead.
I think we are already seeing that Trump's efforts to use alternative statutory authorities will not work.
I am dreading what might come at the State of the Union tonight.
Final Version, "Data Scanning and the Fourth Amendment"
Especially relevant for United States v. Chatrie, the geofence warrant case.
I am pleased to post the final version of my new article Data Scanning and the Fourth Amendment, just out in the Boston College Law Review. Here's the abstract:
An important question of Fourth Amendment law has recently divided courts: When government agents conduct a digital scan through a massive database, how much of a "search" occurs? The issue comes up in diverse contexts including geofence warrants, reverse keyword searches, tower dumps, and Internet pen registers. When a government agent runs a filter through a massive database, resulting in a list of hits, is the scale of any Fourth Amendment search determined by the size of the database, the filter setting, or the filter output? Fourth Amendment law is closely attuned to the scale of a search. No search means no oversight, small searches ordinarily require warrants, and limitless searches are categorically unconstitutional. But how broad is a data scan?
This Article argues that Fourth Amendment implications of data scans should be measured primarily by filter settings. Whether a search occurs, and how far it extends, should be based on what information is exposed to human observation. This standard demands a contextual analysis of what the output reveals about the dataset based on the filter setting. The proper question is what information is expressly or implicitly exposed, not how much raw data passes through the filter or what the raw data output says expressly. The implications of this approach are then evaluated for a range of important applications, among them geofence warrants, reverse keyword searches, tower dumps, and artificial intelligence queries.
As it happens, the issues discussed in the article may be resolved sooner than anyone (or at least I) expected. Last month, the Supreme Court agreed to hear United States v. Chatrie, the geofence warrant case I have blogged about here at Volokh over the years. Chatrie could be resolved in several ways. But one of the easier paths would be to use the case to resolve the split on how warrants work for scanning through large databases, which I think rests on the data scanning question analyzed in the article.
Oral argument in Chatrie is scheduled for April 27th. As always, stay tuned.
My New Boston Globe Article on Why "Trump's New Tariffs are Another Dangerous Presidential Power Grab"
The article explains why the new Section 122 tariffs are illegal, and courts should strike them down, when (as is likely) lawsuits are filed against them.
Today, the Boston Globe published my article, "Trump's New Tariffs are Another Dangerous Presidential Power Grab" (non-paywall link here). Here is an excerpt:
On Friday, the Supreme Court struck down the sweeping tariffs President Trump had imposed under the International Emergency Economic Powers Act of 1977. In a 6-3 decision, the court rightly held that IEEPA does not authorize tariffs.
Among the cases the court decided with this ruling was V.O.S. Selections Inc. v. Trump, which the Liberty Justice Center and I filed on behalf of five small businesses harmed by the tariffs. The ruling was a major victory for the constitutional separation of powers and the rule of law. The justices rightly held that no one man can impose tariffs at will; under the Constitution, the power to tax is reserved to Congress.
As Chief Justice John Roberts Jr. explained in his majority opinion, Trump could not rightfully claim the power to "impose tariffs on imports from any country, of any product, at any rate, for any amount of time."
But in the aftermath of the decision, Trump has attempted to reconstitute his tariff power by reinstating most of the tariffs using a 1974 law. If allowed to stand, this action would undermine the constitutional system almost as much as the IEEPA tariffs did.
Shortly after the court's decision, Trump issued a proclamation invoking Section 122 of the Trade Act of 1974 to impose 10 percent global tariffs. The next day, he increased the rate to 15 percent — though as of Tuesday, the administration implemented only 10 percent tariffs. Section 122 only permits tariffs for up to 150 days in response to "fundamental international payments problems" that cause "large and serious United States balance-of-payments deficits" or "an imminent and significant depreciation of the dollar," or are to cooperate with other countries in addressing an "international balance-of-payments disequilibrium."
As conservative legal commentator Andrew McCarthy explained in National Review, none of these legal preconditions to the use of Section 122 exist. Nor is the scheme part of some plan of international cooperation.
A balance of payments deficit can only arise in a fixed exchange-rate system, like the one the United States had before 1973, when the federal government took part in the Bretton Woods system of fixed exchange rates backed by US gold reserves. In that situation, the United States could experience a shortage of official currency reserves when demand for dollars at the fixed rate increased, or a shortage of gold arose. Since the introduction of floating exchange rates in 1973, that problem has been eliminated. As Nobel Prize-winning monetary economist Milton Friedman explained in 1967, "a system of floating exchange rates completely eliminates the balance-of-payments problem. The [currency] price may fluctuate but there cannot be a deficit or a surplus threatening an exchange crisis." When Section 122 was enacted in 1974, it was not yet clear whether the flexible exchange rate system would continue indefinitely. Since it did, Section 122 has never been used until now…
The Section 122 tariffs will likely soon be challenged in court. If judges wrongly defer to Trump's claims that a balance-of-payments crisis exists, Section 122 could become the kind of blank check for executive imposition of tariffs that the court rejected in the IEEPA case. When the president invokes sweeping emergency powers like those of IEEPA or Section 122, courts must ensure that the emergency in question actually exists. Otherwise, we risk a dangerous expansion of executive power.
In his concurring opinion in the IEEPA case, Gorsuch warned that if courts failed to police executive power grabs, "[o]ur system of separated powers and checks-and-balances threatens to give way to the continual and permanent accretion of power in the hands of one man." That principle applies to Trump's latest tariff power grab, as well.
The rest of the article explains why the major questions and nondelegation doctrines bolster the case against the Section 122 tariffs, and why broad judicial deference to the president on Section 122 would likely allow him to easily circumvent the 150 day time limit required by the statute, thereby converting into the kind of boundless tariff authority the Supreme Court clearly rejected in the Learning Resources case.
For links to my other writings on the tariff litigation and its aftermath, see here.
UPDATE: Phil Magness has a Wall Street Journal article on the same issue, making similar arguments.
Does Section 230 Immunize Twitter's Knowing Possession of Child Sex Abuse Materials?
A recently filed cert petition presents this important issue to the U.S. Supreme Court.
Section 230 immunity is an expansive, largely court-created doctrine that often renders online platforms immune from civil suits for any content they maintain. The immunity's sweeping scope is quite controversial, as it seems to extend to online platform protections against civil suits that other entities and individuals do not enjoy. I recently helped file a cert petition presenting compelling facts illustrating the need for narrowing the expansive immunity that lower courts have read into section 230. Justices Thomas and Gorsuch have previously called for review of the scope of section 230 immunity. Because this petition presents the issue cleanly, I hope that the Court will grant it.
The issue arises through a provision in the Communications Decency Act, which encourages "Good Samaritan" acts to keep objectionable content off the internet. 47 U.S.C. §230(c). The Act states internet platforms are not liable for "good faith" acts to remove such content. Section §230(c)(2)(A). It clarifies that platforms may exercise that editorial control without being "treated as the publisher or speaker." Section 230(c)(1).
In the case at hand, the Ninth Circuit construed the Act to immunize an internet platform's knowing and deliberate decision to keep "child pornography" on the internet—a federal crime so damaging that Congress expressly allows victims to seek civil penalties. (The images are better described as "child sex abuse materials, or CSAM, but we have followed the current legal nomenclature.) In response to repeated alerts that child pornography depicting the minor petitioners (John Doe 1 and John Doe 2) was on its platform, Twitter asked for John Doe 1's ID—verifying that he was a minor. Twitter, in its own words, "reviewed the content" showing coerced sex acts by minors. But Twitter then decided "no action will be taken." The video proliferated—and Twitter profited—until a Department of Homeland Security official intervened.
The victims sued. Twitter claimed immunity. The Ninth Circuit agreed that Section 230 precludes federal civil penalties for that knowing sexual exploitation of children.
In our recently filed cert petition, we present two important questions:
1. Whether section 230's Good Samaritan immunity applies to the knowing possession and distribution of child pornography.
2. Whether section 230's Good Samaritan immunity applies to knowingly benefiting from a sex-trafficking venture.
You can read our entire petition here, but I want to highlight several key aspects.
The Saving Construction in NFIB and the Anti-Saving Construction in Learning Resources
Six justices found that the best reading of statute supports the government, but only three applied the major question doctrine. Why wasn't this a reversal?
In NFIB v. Sebelius, the votes were unusual. Five justices held that the ACA's mandate could not be supported by Congress's commerce powers. Five justices also held that under the best reading of the statute, the penalty enforcing the ACA's mandate cannot be construed as a valid exercise of the taxing power. Chief Justice Roberts, however, used these findings of unconstitutionality as a necessary predicate to applying the saving construction.
This part of the opinion is not well-understood. Some critics charged that Roberts's analysis of the commerce clause was unnecessary since he ultimately upheld the law as a valid exercise of the taxing power. The speculation was that Roberts wanted to gift conservative some jurisprudential victory on the Commerce Clause while upholding Obamacare. The Chief Justice could only get to the saving construction after fully considering whether the law was otherwise unconstitutional. Under the saving construction, the Chief Justice was able to construe the penalty as a tax. To be sure, Roberts acknowledged the saving construction wasn't the best reading of the statute, but it was a reasonable reading for purposes of constitutional avoidance. Justices Ginsburg, Breyer, Sotomayor, and Kagan joined that portion of the saving construction, giving it five votes, and making that a majority opinion.
Learning Resources operates in something of a mirror fashion. Chief Justice Roberts, as well as Justices Gorsuch and Barrett, found that under the major questions doctrine, the plaintiffs would prevail. While constitutional avoidance in NFIB compelled a saving construction, constitutional avoidance in Learning Resources compelled an anti-saving construction. For a duly-enacted statute, the Court reads the statute to uphold Congress's handiwork. But for a novel executive branch interpretation of an old statute, the Court reads the statute to cut against the President's handiwork. To use Justice Gorsuch's phrasing, "When Congress failed to speak clearly, courts put a thumb on the scale in favor of delegated power. " In other words, Congress puts a thumb on the scale against the executive branch.
The only way that Roberts, Gorsuch, and Barrett could have reached the Major Questions Doctrine is by finding the plaintiffs do not prevail under the best reading of the statute. I'll admit this point is not stated expressly in the opinion. Part II-A-2 of the Chief's opinion sort of just jumps into MQD without explaining why. And Justice Kagan does not join II-A-2. But why apply this canon (whatever the basis) if the plaintiffs plainly win under the statute? Justices Kagan, joined by Justices Sotomayor and Jackson, found that the plaintiffs had the best "straight-up" reading of the statute. But these three refused to join the Court's application of the Major Questions Doctrine. Kagan wrote, "For all those reasons, straight-up statutory construction resolves this case for me; I need no major-questions thumb on the interpretive scales."
I think Kagan is right that there is a big difference between "straight-up" statutory interpretation, and MQD statutory interpretation. Whether you approach this from the perspective of substantive canons (like Justice Gorsuch) or "common sense" (like Justice Barrett), the MQD is doing something different than the traditional tools of statutory interpretation. When I went to law school two decades ago, and studied statutory interpretation, the MQD wasn't really a thing. Sure we read Brown & Williamson and a few other cases, but no one thought this was a revolutionary doctrine. But it is a thing now. If the MQD is simply another name for statutory interpretation, then why call it something else?
I think the Roberts opinion has to be seen as expressly rejecting this "straight-up" reading of the statute. Otherwise, there would be no need to go down the Major Questions Doctrine route. In NFIB, the Chief Justice made clear why he was applying the saving construction. But in Learning Resources, the Chief Justice did not explain why he was applying the anti-saving construction. Indeed, Roberts could have joined Kagan's opinion, which endorsed the plaintiffs' statutory reading. But that didn't happen.
Justices Kavanaugh, joined by Justices Thomas and Alito, found that the plaintiffs do not prevail under the "straight-up" reading of the statute, nor do they prevail under the Major Questions Doctrine. Justice Kavanaugh found that "In the foreign affairs context, including tariffs, the longstanding rule is simple: Interpret the statute as written, not with a thumb on the scale against the President." Here, "as written" means "straight-up." I think Kagan and Kavanaugh are on the same page here.
Let's count the votes.
Three justices clearly found that the "straight-up" reading of the statute, without the major questions doctrine, supports the government: Kavanaugh, Thomas, Alito. Three justices would have necessarily needed to find that the "straight-up" reading of the statute, without the major questions doctrine, supports the government: Roberts, Gorsuch, Kavanaugh. I count six votes for this position. Three justices found that the statute can be read, under the major questions doctrine, to support the plaintiffs: Roberts, Gorsuch, and Barrett.
Six should beat three. So why was this case a reversal? The simple answer is that Justice Kagan, Sotomayor, and Jackson stated that they concurred in the judgment. But concurring in a judgment does not create a judgment. The judgment should be determined based on which interpretative position garners the most votes. Here, there are six votes to reject the lower court's reasoning on the statute. This is not a case like Marks where no single interpretive position garners a majority. There is a majority, but the Justices do not wish to acknowledge it. You cannot turn a dissent into a concurrence by labelling it as concurring in judgment. Here, a majority of the Court squarely rejected the plaintiffs' statutory argument, and only three members adopted the plaintiffs' backup argument under the MQD. Why did the government lose?
All of the above analysis would be wrong if the major questions doctrine is not viewed as some sort of avoidance canon. But if it's not an avoidance canon, what is it? I realize there is an ongoing debate in the literature, and on the Court, about what triggers the MQD. But I think everyone would agree that it is always the first step, where possible, to apply a "straight-up" method of statutory interpretation. The sort of statutory interpretation we all learned in law school decades ago. In other words, if Justice Kagan is right, then there is no need to ever consider the major questions doctrine. And unlike NFIB, Justice Kagan did not join the anti-saving construction.
I realize this issue is largely academic, as the judgment says "affirm," but I don't think the answer is so clear.
Update: I had an extended exchange with a colleague who is a federal courts expert.
He said that Roberts has no obligation to reject the straight up-reading. He can jump straight ahead to the MQD.
He said further that even if Roberts had expressly rejected the straight up reading, while Kagan refused to embrace MQD, there would still be an affirmance because six votes voted to affirm. After all, Justices are under no obligation to provide any reasoning. They can simply vote to affirm or reverse.
I will consider both of these points further.
Update 2: I think Justice Kavanaugh's opinion is consistent with my initial read:
In an ordinary statutory interpretation case, I amconfident that a majority of this Court would flatly rejectthe plaintiffs' exceedingly weak statutory arguments and would hold that IEEPA's authorization for the President to "regulate . . . importation" during national emergenciesincludes the power to impose tariffs.Notably, the Court today does not claim that the phrase"regulate . . . importation" on its own excludes tariffs as a matter of ordinary statutory meaning. Only three Members of the Court, JUSTICE SOTOMAYOR, JUSTICE KAGAN, and JUSTICE JACKSON, do so. THE CHIEF JUSTICE's opinion in Part II–A–2, which is joined only by JUSTICE GORSUCH and JUSTICE BARRETT, instead relies on the major questions doctrine. The majorquestions doctrine is an important canon of statutoryinterpretation that the Court has applied in a number of significant cases over the last 45 years. See Industrial Union Dept., AFL–CIO v. American Petroleum Institute, 448 U. S. 607, 645 (1980) (plurality opinion).
And Footnote 17:
17Of course, if the major power does not fall within the generally worded text as a matter of ordinary statutory interpretation, the major questions doctrine is not implicated or necessary to apply because the Government's statutory argument fails to begin with.
Don't Go to the State of the Union
Let the Wilsonian Nightmare End
Over at The Dispatch, I have a new piece on the State of the Union address and why the justices should stay home. After President Obama caused a stir by criticizing the Court for its Citizens United decision during the State of the Union address, I wrote an article on presidential criticisms of the judiciary in public speeches and on the evolution of the State of the Union address. Chief Justice John Roberts complained after that episode that the event seemed like a presidential pep rally. Well, no duh. The State of the Union is a presidential pep rally. That was Woodrow Wilson's goal when he started the modern tradition of an annual in-person speech to a joint session of Congress.
One can see why such a platform is politically useful to the president. But no one else should play along, or pretend that the State of the Union is some kind civic ceremony. It is, and has always been, a vehicle for the president to bully Congress into doing what he wants. There is no reason for the justices to attend such an event, and no reason for the opposition members of Congress to show up either.
From the piece:
Who knows what Trump might choose to say in this State of the Union address, just days removed from this signature loss in the Supreme Court and with a long track record of losses in the lower courts. Will the justices be required to "sit there expressionless" as the president's "cheering and hollering" supporters surround them and the president himself looks down on them and calls them fools and perhaps announces his own court-packing plan?
Now would be a good time for the Wilsonian experiment to come to an end. It seems like it is only a matter of time before the Republican prediction from back in 1913 comes true and a president is greeted with a cacophony of boos. Instead of Democrat House Speaker Nancy Pelosi waiting until the end of a Trump presidential address to show her disdain by ripping up his speech, a future House speaker might take the opportunity to show even less restraint while sitting on camera behind the president. Rather than a single member of Congress shouting "liar" at President Joe Biden during his speech, a partisan majority might decide to shout down the president with jeers and boos. After the midterm elections, an emboldened new Democratic congressional majority might simply refuse to invite President Trump to the chambers to deliver a speech at all. He can, after all, deliver a speech from the White House lawn any time he wants.
Court Requires That Vulgar Criticism of Mayor Be Obscured, but Eventually Changes Course
From a press release by Daniel A. Horwitz (Horwitz Law, PLLC), who prevailed in the case; I've worked with him before and generally quite trust his work (plus I looked through the source material myself as well):
Following a multi-month prior restraint that forbade local citizen Glenn Whiting and his affiliated entity Liberty Property Services from displaying the message "Mayor Larry Eaton tells citizen FUCK you after Court said city violated law," District Attorney Stephen Hatchett's obscenity lawsuit against Liberty Property Services must be dismissed, McMinn County Circuit Court Judge J. Michael Sharp has ruled. A copy of the Circuit Court's dismissal order is accessible here: https://horwitz.law/wp-content/uploads/Order-Regarding-Motion-to-Dismiss.pdf.
Arrest of Commenter at City Council Meeting for Accusing Police of Being "Fascist" and "Pro Domestic Abuse" Violated First Amendment
An excerpt from yesterday's long decision by Chief Judge Stephanie Rose (S.D. Iowa) in Petersen v. City of Newton:
The constitutional violations alleged in this case stem from the enforcement of Newton's Derogatory Comments Rule …, which prohibited speakers from making "derogatory statements or comments about any individual" during the public comment portion of city council meetings….
[In August 2022,] Newton Police Officer Nathan Winters arrested Tayvin Galanakis during a traffic stop—an incident that drew Petersen's attention to the police department. Petersen investigated and discovered that Officer Winters was subject to a civil no-contact order related to domestic abuse allegations. When Petersen submitted public records requests seeking information about how the department had handled the matter, the City denied them….
Petersen attended the October 3, 2022 city council meeting to speak during the public comment period. He began reading prepared remarks characterizing the police department as "violent" and "pro domestic abuse." Mayor Hansen interrupted, declared Petersen in violation of the Rule, and directed Chief Burdess to remove him from the meeting. When Petersen insisted on finishing his remarks, Chief Burdess arrested him for disorderly conduct. This arrest was unprecedented—no one had ever been arrested at a Newton city council meeting before. Yet, at this same meeting, other speakers made critical comments about city officials that Mayor Hansen permitted under the Rule.
Today in Supreme Court History: February 24, 1930
2/24/1930: Chief Justice Charles Evans Hughes takes oath.
Open Thread
What’s on your mind?
UC's National Center for Free Speech and Civic Engagement $15K Non-Residential Fellowships (Applications Due March 21)
From the webpage:
Applications are due by Monday, March 30th at midnight. If you have questions, please feel free to contact freespeechcenter@uci.edu or register for an info session. [Information Session: February 24, 2026, at 12pm PT | 3pm ET.]
About the Center
The UC National Center for Free Speech and Civic Engagement explores the intersection of expression, engagement and democratic learning and considers what can be done to restore trust in the value of free speech on college campuses and within society at large….
About the Fellowship
Each year, the Center selects fellows from a broad range of disciplines and backgrounds such as law, journalism, higher education, social science, technology and government. The Center welcomes candidates from all backgrounds to apply, and invites a wide range of innovative projects. As part of the University of California, the Center is committed to promoting diversity and equal opportunity in its education, services and administration, as well as research and creative activity.
Over the course of the fellowship, each fellow completes a project. Work products can take many forms such as (but not limited to) qualitative/quantitative research, curricular modules, toolkits or training programs/pilots. We are focused on projects that address current issues affecting students, staff, administrators and faculty and will have a direct impact on individuals and communities across campuses. For more information about the work of previous fellows, click here….
This 18 month non-residential fellowship will run from July 1, 2026 through December 31, 2027. Selected fellowships will be awarded $15,000 to support their work.
This year we are particularly interested in projects that address the following issues:
My New Dispatch Article on the Tariff Decision, its Implications - and a Key Issue the Court Did Not Resolve
The Court stopped a massive presidential power grab, but did not resolve a crucial issue about judicial review of executive use of emergency powers.
Today, The Dispatch published my new article (gift link) on the Supreme Court's tariff decision, entitled "The Supreme Court Spurns a Presidential Power Grab." Here's an excerpt:
On Friday, the Supreme Court ruled on three cases challenging President Donald Trump's massive system of tariffs imposed under the International Emergency Economic Powers Act of 1977 (IEEPA). In a 6-3 decision, the court rightly held that IEEPA does not give the president the power to impose tariffs. Among the cases decided was VOS Selections Inc. v. Trump, which the Liberty Justice Center and I filed on behalf of five small American businesses harmed by the tariffs (we were later joined by prominent litigators Neal Katyal and Michael McConnell). The decision is important for its impact on tariffs, and as a rejection of a sweeping executive power grab. But it also raises a crucial broader—and as yet unresolved—issue: how much deference to give presidential invocations of sweeping emergency powers. That issue is central to various cases working their way through the courts, and may soon arise again in the tariff context….
The main basis for the court's ruling is that IEEPA does not even mention the word "tariff," and has never been used to impose them by any previous president during the statute's nearly 50-year history. The power to "regulate" importation, which IEEPA does grant in some situations, does not include a power to impose taxes.
But an additional crucial factor was the sheer scope of the authority claimed by Trump. As Chief Justice John Roberts noted in his opinion for the court, the president claimed virtually unlimited power to "impose tariffs on imports from any country, of any product, at any rate, for any amount of time…"
Under Trump's interpretation of the law, the president would have virtually unlimited tariff authority, similar to that of an absolute monarch of the kind King Charles I aspired to be. The court decisively rejected this aspiration to unconstrained presidential power. Roberts' majority opinion, a concurring opinion by Justice Neil Gorsuch, and one by Justice Elena Kagan (writing for all three liberal justices) all, in different ways, emphasized this aspect of the case. As Gorsuch put it, "Our system of separated powers and checks-and-balances threatens to give way to the continual and permanent accretion of power in the hands of one man. That is no recipe for a republic…"
But the judiciary's future ability to constrain dangerous presidential power grabs depends in large part on an issue the court managed to avoid in the IEEPA case: whether and to what extent to defer to presidential assertions that an extraordinary situation exists justifying the invocation of sweeping emergency powers.
The article goes on to discuss how the issue of deference is likely to come up in potential litigation over Trump's efforts to use Section 122 of the Trade Act of 1974 to impose a new set of sweeping tariffs:
The issue of how much deference to give to presidential invocation of emergencies is also likely to arise again in the context of tariffs. Within hours of the court's decision, Trump issued an executive order using Section 122 of the Trade Act of 1974 to impose 10 percent global tariffs, before upping the rate to 15 percent the next day. But Section 122 only permits tariffs in response to "fundamental international payments problems" that cause "large and serious United States balance-of-payments deficits" (which are not the same thing as trade deficits), "an imminent or significant depreciation of the dollar," or to cooperate with other countries in addressing an "international balance-of-payments disequilibrium." As prominent conservative legal commentator Andrew McCarthy explains in an insightful article for National Review, these preconditions for the use of Section 122 do not exist. There is no "fundamental international payments problem," and the United States does not have a balance-of-payments deficit. In addition, Section 122 tariffs can only remain in force for up to 150 days unless extended by Congress.
But when the Section 122 tariffs are challenged in court (as they likely will be), judges will have to decide whether to defer to Trump on the question of whether the statutory prerequisites are met. And when the 150-day period expires, they may also have to decide whether Trump can extend it simply by claiming a new balance-of-payments problem has arisen. If judges (mistakenly) give him broad deference, Section 122 could become a blank check for presidential tariff-setting that the Supreme Court just denied him in the IEEPA case.
How Should The Non-Delegation Doctrine and the Major Question Doctrine Apply to Foreign Affairs?
Justices Thomas and Kavanaugh raise important issues that Justice Gorsuch and Chief Justice Roberts do not fully address.
In an earlier post, I observed that Learning Resources is not really a constitutional law case. The bulk of the Chief Justice's controlling opinion focuses on statutory interpretation, sprinkled with some major question analysis. But there is very little straight-up conlaw.
Justice Thomas, as usual, is in a league of his own. He wrote a through study of how the non-delegation doctrine ought to apply to different types of enumerated powers. In short, Congress cannot delegate "core" powers to the President because the exercise of those powers can deprive people of the private rights of life, liberty, and property. By contrast, Congress can delegate "non-core" powers to the President because the exercise of those powers would, at most, violate public rights, which are mere privileges, and would not deprive people of life, liberty, and property. I think you need to read the entire dissent to understand the full breadth of Thomas's vision, but these paragraphs offers a succinct summary:
The Constitution's separation of powers forbids Congress from delegating core legislative power to the President. This principle, known as the nondelegation doctrine, is rooted in the Constitution's Legislative Vesting Clause and Due Process Clause. Art. I, §1; Amdt. 5. Both Clauses forbid Congress from delegating core legislative power, which is the power to make substantive rules setting the conditions for deprivations of life, liberty, or property. Neither Clause prohibits Congress from delegating other kinds of power. Because the Constitution assigns Congress many powers that do not implicate the nondelegation doctrine, Congress may delegate the exercise of many powers to the President. Congress has done so repeatedly since the founding, with this Court's blessing.
The power to impose duties on imports can be delegated. At the founding, that power was regarded as one of many powers over foreign commerce that could be delegated to the President. Power over foreign commerce was not within the core legislative power, and engaging in foreign commerce was regarded as a privilege rather than a right. Early Congresses often delegated to the President power to regulate foreign commerce, including through duties on imports. As I suggested over a decade ago, the nondelegation doctrine does not apply to "a delegation of power to make rules governing private conduct in the area of foreign trade," including rules imposing duties on imports. Department of Transportation v. Association of American Railroads (2015) (opinion concurring in judgment). Therefore, to the extent that the Court relies on "'separation of powers principles'" to rule against the President at 8 (opinion of Roberts, C. J.), it is mistaken.
At first blush, there is something counterintuitive about Thomas's theory. The powers listed in Article I, Section 8 would have to be bifurcated based on a line that appears nowhere in the text: core, and non-core. The majority opinion says that the "power of the purse" is a "core congressional power." And as Justice Gorsuch notes in his concurrence, the text of Article I, Section 8, lists all of the powers in one block.
Section 1 of Article I vests "[a]ll legislative Powers herein granted" in Congress and no one else. Section 8 proceeds to list those powers in detail and without differentiation. Neither provision speaks of some divide between true legislative powers touching on "life, liberty, or property" that are permanently vested in Congress alone and "other kinds of power[s]" that may be given away and possibly lost forever to the President.
That was my first blush. But after stewing on the matter for a few days, Thomas starts to make sense of something I have long intuited: not all of the powers in Article I, Section 8 are actually legislative; some are executive in nature. Here, Justice Thomas cites Michael McConnell's discussion of the King's "prerogative" power:
Congress also has many powers that are not subject to the nondelegation doctrine. "We now think of the powers listed in Article I, Section 8 as quintessentially legislative powers, but many of them were actual, former, or asserted powers of the Crown, which the drafters decided to allocate to the legislative branch." M. McConnell, The President Who Would Not Be King (2020) (McConnell); accord, Zivotofsky v. Kerry (2015) (Thomas, J., concurring in judgment in part and dissenting in part). These include the powers to raise and support armies, to fix the standards of weights and measures, to grant copyrights, to dispose of federal property, and, as discussed below, to regulate foreign commerce. Art. I, §8; Art. IV, §3. None of these powers involves setting the rules for the deprivation of core private rights. Blackstone called them "prerogative" powers, and sometimes "executive." By one count, 13 of the 29 powers given to Congress in Article I were powers that "Blackstone described as 'executive' powers."
Thomas shows that the early Congresses delegates to the President the power to exercise these non-core powers without limitation.
For most of American history, the nondelegation doctrine was understood not to apply to these powers. Contra (Gorsuch, J., concurring). "The early congresses felt free to delegate certain powers to President Washington in broad terms." McConnell 333. Thus, the Constitution gives Congress the power to support armies, Art. I, §8, cl. 12, but Congress in 1789 delegated to the President the power to establish regulations for benefits to veterans wounded in the Revolutionary War. The Constitution gives Congress the power to grant patents, Art. I, §8, cl. 8, but Congress in 1790 delegated to executive officials the power to grant patents in their discretion. The Constitution gives Congress the power to borrow money, Art. I, §8, cl. 2, but Congress in 1790 delegated to the President the power to borrow up to $12 million on behalf of the United States in his discretion. The Constitution gives Congress the power to raise armies, Art. I, §8, cl. 12, but Congress in 1791 delegated to the President the power to raise an army of 2,000 troops in his discretion. And, as I explain further below, the Constitution gives Congress the power to regulate foreign commerce, Art. I, §8, cl. 3, but early Congresses often delegated to the President the power to regulate foreign commerce.
I've lost track of the literature studying how the early Congresses delegated power. But maybe one way to make sense of some of these statutes is that Congress could delegate what were executive "prerogative" powers without regard to non-delegation concerns. I need to give this topic more thought.
As for the major question doctrine, I think Justice Kavanaugh has the better argument. It should have no applicability on the foreign affairs context.
Second, in any event, the Court has never before applied the major questions doctrine in the foreign affairs context, including foreign trade. Rather, as Justice Robert Jackson summarized and remains true, this Court has always recognized the "'unwisdom of requiring Congress in this field of governmental power to lay down narrowly definite standards by which the President is to be governed.' " Youngstown Sheet & Tube Co. v. Sawyer (1952) (concurring opinion) (quoting United States v. Curtiss-Wright Export Corp. (1936)). In foreign affairs cases, courts read the statute as written and do not employ the major questions doctrine as a thumb on the scale against the President.
Kavanaugh is certainly correct that Roberts is wrong to extend the MQD to foreign affairs for the first time without much consideration.
The Chief Justice's opinion's reliance on the major questions doctrine in this foreign affairs case is a first—a novel and unprecedented use of the major questions doctrine to invalidate Presidential action taken pursuant to congressional authorization in the foreign affairs area. I firmly disagree with that use of the major questions doctrine here. In the foreign affairs context, including tariffs, the longstanding rule is simple: Interpret the statute as written, not with a thumb on the scale against the President.
I think I'm done writing about Learning Resources for now. Let's see what tomorrow brings.
Climate Change Goes Back to the Supreme Court -- Colorado Edition
The Supreme Court granted certiorari in Suncor Energy v. County Commissioners of Boulder County
On today's order list there is only one grant of certiorari, but it is a big one: Suncor Energy (U.S.A.) v. County Commissioners of Boulder County. This is one of the climate change tort suits filed by state and local governments against fossil fuel companies under state law, and it will unquestionably be one of the biggest cases of the term (almost certainly next term given the Court's calendar).
In granting certiorari the Court expanded on the questions presented by the petition for certiorari. The QP offered by Suncor was as follows:
Whether federal law precludes state-law claims seeking relief for injuries allegedly caused by the effects of interstate and international greenhouse-gas emissions on the global climate.
In granting the petition, the Court added a second question:
In addition to the question presented by the petition, the parties are directed to brief and argue the following question: Whether this Court has statutory and Article III jurisdiction to hear this case.
Where did this come from? When Suncor initially petitioned for certiorari, Boulder waived its right to file a brief in opposition. Some number of justices wanted to know what Boulder really thought, however, and the court requested that Boulder file a brief explaining why, in their view, the case was not cert worthy. In its filed response, Boulder offered four QPs, both to raise the jurisdiction question, as well as to note potential distinctions buried within Suncor's suggested QP:
- Whether this Court has statutory jurisdiction to review the interlocutory decision of the Colorado Supreme Court.
- Whether this Court has Article III jurisdiction to review the interlocutory decision of the Colorado Supreme Court.
- Whether the Clean Air Act impliedly preempts the state law tort claims advanced in this case.
- Whether the structure of the Constitution impliedly preempts the state law tort claims advanced in this case without regard to whether Congress intended to preempt those claims.
The first two of these suggested QPs were almost certainly the basis for the Court's added question, but the Court folded them into a single question, just as it accepted Suncor's QP formulation folding together statutory and constitutional arguments for preemption.
As longtime readers know, I believe the arguments for statutory preemption have no legal basis, while the structural arguments are a form of preemption through penumbra. That said, I believe there are serious questions about the scope of the defendants' conduct and potential relief that can be properly offered by a state court--questions that have been complicated by recent Supreme Court decisions in related areas such as National Pork Producers and Mallory. Greater clarity and consistency on this score would be welcome.
The timing of this grant is also interesting in that the arguments for federal preemption of state-law-based climate tory claims will be unquestionably weaker if, as the administration is arguing, the Clean Air Act provides no meaningful basis upon which to regulate greenhouse gases--let alone if Massachusetts v. EPA is overruled.
For those interested, here are my prior posts on this subject:
- Why State Common Law Nuisance Claims Against Fossil Fuel Companies Are Not Preempted, Oct. 27, 2021;
- Third Circuit Rejects Oil Company Efforts to Remove Climate Claims to Federal Court, Aug. 17, 2022;
- Oil Companies Fail to Convince the Eighth Circuit Climate Cases Should Be Removed to Federal Court (Updated), Mar. 25, 2023;
- Is Climate Change Going Back to the Supreme Court? (Minnesota Edition) [UPDATED], Dec. 11, 2023;
- D.C. Circuit Rejects Oil Company Attempt to Remove District's Climate Suit to Federal Court, Dec. 19, 2023;
- William Barr Responds on American Petroleum Institute v. Minnesota, Dec. 26, 2023;
- Supreme Court Takes a Pass on Minnesota Climate Change Case, Jan. 8, 2024;
- Are State Law Climate Change Tort Suits Preempted by Federal Law?, May 3, 2024;
- Supreme Court Denies Certiorari in Climate Tort Suits, Jan. 13, 2025;
- Supreme Court Rejects Red State Attempt to Sue Blue States Over Climate Suits, Mar. 10, 2025;
- William Barr Discovers the Economics of Tort Law (and Misrepresents the Law Governing Interstate Pollution), Nov. 3, 2025;
- Placing Climate Tort Litigation in Context (Updated), Nov. 7, 2025;
- A Second Round with William Barr on Litigation Over Interstate Pollution, Dec. 2, 2025;
- Court Dismisses Trump Administration Effort to Block Michigan Climate Lawsuit, Feb. 4, 2026.
The Roberts Court Rejects Trump's Tariffs
An initial take on Learning Resources v. Trump.
Last Friday's opinion for the Court in Learning Resources v. Trump was mercifully short. The full stack of opinions, not so much.
The dueling opinions give us academic types lots of interesting material to chew on, including what to make of the fact that four separate opinions embrace the major questions doctrine, but do so in different ways, and how to assess Justice Thomas' suggestion that the nondelegation doctrine should be understood as much as a matter of due process as Article I vesting.
In the meantime, Learning Resources is an unquestionably important opinion. I wrote up some of my initial thoughts for Civitas Outlook. My column begins:
On Friday, the Supreme Court issued a sharp rebuke to the Trump Administration, rejecting the President's attempt to use the International Emergency Economic Powers Act (IEEPA) to impose tariffs on foreign nations. President Trump had asserted the "extraordinary power to unilaterally impose tariffs of unlimited amount, duration, and scope." Yet in Learning Resources v. Trump, Chief Justice John Roberts, writing for a six-justice majority, concluded that IEEPA "does not authorize the President to impose tariffs," period. In this conclusion, the Chief Justice was joined by the Court's three liberals — Justices Sotomayor, Kagan, and Jackson — and two of Trump's three appointees to the Court —Justices Gorsuch and Barrett. Justice Kavanaugh dissented, joined by Justices Thomas and Alito.
Learning Resources was the first case in which the Supreme Court reviewed one of the second Trump Administration's policy initiatives on the merits, and, as was so often the case during Trump's first term, the Administration came up short. However much authority the President may have to impose tariffs under other statutes, and however much deference the executive branch is due in other contexts, the Trump Administration's "Liberation Day" tariffs were a bridge too far.
Read the rest here.
Litigation Breeds Litigation + Follow-Up to Lawsuit Against Pro-Palestinian / Anti-Semitic Protesters Outside Synagogue
From Friday's decision by Judge Shalina Kumar (E.D. Mich.) in Susselman v. Attorney Grievance Comm'n (for more on the Sixth Circuit's decision rejecting the underlying lawsuit against the protesters, see this post):
Plaintiffs Marc Susselman … sue[s] the Michigan Attorney Grievance Commission ("[AGC]"), its Board of Commissioners, and Michael Goetz, in his official capacity as the Administrator of the [AGC] (collectively, "Defendants"), alleging violations of [his] First and Fourteenth Amendment rights….
In 2019, Susselman learned that a group of protesters were in front of Beth Israel synagogue holding signs with messages that included "Jewish Power Corrupts", "Resist Jewish Power", and "No More Holocaust Movies." These protests had been occurring every Saturday morning since 2003, and Susselman felt compelled to file suit in federal court seeking an injunction "placing reasonable time, place and matter restrictions on [the protesters'] conduct, e.g., requiring that they be a certain distance from the synagogue property; that they be prohibited from protesting during the time period when the Sabbath service was being conducted; and that the number of protesters, and the number of signs they used, be limited to a reasonable number." …
Defendants in that case moved to dismiss the complaint asserting plaintiffs did not have standing to sue, and the protestors' conduct was protected by the First Amendment. Judge Roberts ultimately agreed with defendants that plaintiffs did not have standing to sue because their emotional distress did not constitute a concrete injury, and defendants' conduct was protected by the First Amendment "even if it disturbs, is offensive, and causes emotional distress." The case was dismissed.
Susselman appealed Judge Roberts' decision dismissing the case, challenging her ruling that plaintiffs' emotional distress did not constitute a concrete injury. The Sixth Circuit reversed Judge Roberts' ruling that plaintiffs did not have standing, but ruled that the protestors' signs were protected by the First Amendment….
Defendants moved for attorney fees on the basis that the lawsuit was frivolous, and Judge Roberts awarded fees in the amount of $158,721.75 to be paid jointly and severally by plaintiffs and Susselman. Susselman, convinced that Judge Roberts' rulings in the case were "motivated either by anti-Semitic sentiments, or by anti-Israel, pro-Palestinian sentiments, or by both…." appealed Judge Roberts' decision. The Sixth Circuit affirmed the attorney fee award, agreeing the lawsuit was frivolous and found that the record did not support Susselman's claims that Judge Roberts was biased against his clients. Susselman then filed a petition for certiorari with the Supreme Court, which was denied.
On October 18, 2022, Susselman filed a formal complaint against Judge Roberts with the Sixth Circuit. In his complaint he asserted that "by virtue of the statements in her decisions which, taken together, had the distinct appearance of being anti-Semitic and/or anti-Israel, she had violated the Canons of the Code of Conduct of United States Judges.["] Chief Judge Sutton dismissed Susselman's complaint on September 7, 2023. Susselman filed a petition to have his complaint be reviewed by a judicial counsel of the Sixth Circuit, and on March 26, 2024, the court issued an order affirming Chief Judge Sutton's dismissal of the complaint against Judge Roberts.
Amazon Could Be Liable for Selling Product Used to Commit Suicide, Coupled with Promotion of a "Suicide Instruction Book"
From Thursday's Scott v. Amazon.com, Inc., decided by the Washington Supreme Court (opinion by Justice Helen Whitener); the lawsuit was brought by the families of four people who committed suicide, three adults (ages 18, 19, and 27) and one minor (age 17):
Amazon sells … "Loudwolf Sodium Nitrite" and "HiMedia GRM417-500G Sodium Nitrite." Each of the four decedents ingested the sodium nitrite they purchased from the Amazon website. According to Plaintiffs, sodium nitrite is used in laboratories for research and medical purposes, and it is also used in meat preservation. When used as a meat preservative, sodium nitrite is one of many ingredients. Curing salts typically call for sodium nitrite of 6.0 percent purity.
HiMedia Sodium Nitrite is 98.0 percent pure and Loudwolf Sodium Nitrite is 99.6 percent pure. Once ingested, sodium nitrite takes just minutes to produce enough methemoglobin to impair oxygen transport in the blood and cause hypoxia. Plaintiffs alleged that there is no legitimate household use for high purity sodium nitrite….
Plaintiffs alleged that Amazon promoted the sale of sodium nitrite on its website alongside other products that would assist in carrying out suicide. They contend that the Amazon website included recommended products, such as Tagamet to consumers who viewed sodium nitrite products. According to the Plaintiffs, Tagamet is an acid reduction medicine that suicide forums recommend purchasing to prevent life-saving vomiting that occurs when sodium nitrite is ingested.
Other products Plaintiffs identified being recommended on Amazon's website to customers who viewed sodium nitrite products include a small scale and a book titled The Peaceful Pill Handbook. Plaintiffs alleged that The Peaceful Pill Handbook is a suicide instruction book that devotes a chapter to lethal inorganic salts, which contains instructions on how to use sodium nitrite to die by suicide. The book states that sodium nitrite is readily available online and provides a hyperlink to the sodium nitrite products on the Amazon webpage.
Plaintiffs alleged that Amazon routinely sent reminder e-mails, with advertisements for these products, to customers who viewed sodium nitrite products on the webpage. In addition, Plaintiffs contend that one-star customer reviews from grieving family members about how the sodium nitrite product was being used for suicide were deleted by Amazon.
