Counting to Five for the Government In The Tariffs Case

I was in the Court, and I have a different take on the case.

This morning, I attended oral argument in the tariff case. I was seated shortly after 9:00 a.m. and did not leave until nearly 12:45 p.m. As a result, for nearly four hours, I was completely immune to everything that was said on social media, on prediction marks, and in the press. It seems that shortly after Solicitor General John Sauer sat down, headlines started popping up with a consistent description: the Justices asked "skeptical" questions of the government. Indeed, I suspect these headlines were written formed before Neal Katyal finished his argument for the Respondents.

The live-streaming of oral arguments has been a welcome development. But perhaps one drawback is that people make their assessments of big cases before they are over. And once a narrative takes old, everyone seems to glom onto it. As usual, I have an unorthodox take.

Without question the justices had skeptical questions for the Solicitor General. But several Justices seemed skeptical, and even frustrated by Neal Katyal's presentation. He was polished, but wooden. Far too often, it seemed like he was giving rehearsed answers, which were not entirely responsive to the questions that were asked. Katyal may have also misread the room, and came in far too overconfident after the Solicitor General sat down. This case is close, but I think that ultimately the tariffs are upheld. I say this as someone who has not formed a solid opinion on the matter. I really haven't blogged about the issue, and came into the argument with an open mind.

How do we count to five?

Justice Kavanaugh

Let's start with Justice Kavanaugh. Throughout the argument, he consistently brought up two points.

First, he contended that President Nixon imposed a global 10% tariff under the Trading With the Enemy Act (TWEA), the predecessor statute to IEEPA. Respondent argued that Congress made some important changes to the TWEA regime with IEEPA, but Justice Kavanaugh did not think these distinctions mattered. Neal Katyal repeatedly said that the Trump tariffs were unprecedented. Kavanaugh cited the Nixon tariffs and said "I just think that's a fact." Here Katyal should have picked up on how Kavanaugh was locked in on the Nixon tariffs.

Second, Justice Kavanaugh repeatedly cited FEA v. Algonquin SNG (1976), which involved a statute that used the phrase "adjust imports." Justice Jackson tried to argue that Algonquin was not a textualist decision, but Justice Kavanaugh disagreed. Justice Kavanaugh said that under Algonquin, Congress does not need to use the word "tariff." He then concluded, somewhat sharply, "Your answer." Katyal began his answer and said "There's a lot there, Justice Kavanaugh, so please bear with me." Kavanaugh said he would, but he interrupted Katyal mid-sentence and said, "Algonquin didn't have anything like that but keep going." Kavanaugh actually seemed annoyed with Katyal's argument, which, as I noted above, did not seem responsive to his concerns.

Justice Gorsuch

The second key vote belongs to Justice Gorsuch. Here, I will just focus on Justice Gorsuch's questions concerning the statute. Later, I'll return to Gorsuch's views on delegation. During the seriatim round, Katyal purported to summarize Justice Gorsuch's position. When the Chief gave Gorsuch his turn, be began, "Well, I don't know if I agree with what you say I say, but, at any rate." Like Justice Kavanaugh, Justice Gorsuch looked annoyed. Gorsuch wanted to go back to the "plain language." Through several questions, he suggested that the verb "regulate" is "capacious" and other language may in fact delegate the appropriate power. He then asked a pivotal question:

And just on the plain language, forget about the backdrop of major, do you need major questions to win? I kind of --I kind of think you might.

What exactly was Gorsuch saying here? One reading is that Gorsuch was prepared to find that Congress failed to adequately delegate authority here, and therefore in the absence of a clear delegation, the Court, under the major questions doctrine, should find that the statutory authority is lacking. But I don't think that is the best reading. Rather, Gorsuch seemed to be saying that the plain language of the statute in fact did clearly delegate this authority, and the only way then for Katyal to win would be through some sort of non-delegation argument. In other words, even if Congress did purport to grant this sweeping power of imposing tariffs to the President, that delegation was unconstitutional. Thus, if I'm reading Gorsuch correctly, the government wins on the statutory argument, but loses on the constitutional argument.

Justice Gorsuch then asked Katyal for what turned out to be a key concession. Gorsuch asked Katyal if licenses were "economically the same thing as tariffs." Katyal replied, "Sometimes they can be revenue-raising in the same way." Gorsuch then said that licenses are "economically identical to a tariff [which is] authorized by this statute." Katyal did not push back on the premise of the question. Instead, he talked about "regulate" again. Gorsuch seemed annoyed Katyal wasn't talking about "license." Gorsuch said, "Yeah. I do follow that argument." But he was not persuaded. Katyal tried again, and Gorsuch expressed more frustration:

JUSTICE GORSUCH: Well, you're not answering my question, though, Mr. Katyal. I'm talking about just the plain text here. And you're moving to a major questions or a nondelegation. That's the move you're making, which I think, you know, fine, we can consider that. I'm just talking about on the text, okay? It says by means of licenses or otherwise. You've conceded that licenses are economically equivalent to tariffs. And the statute says by means of licenses or otherwise regulate.

Again, Gorsuch was separating the "plain text" of the statute and the MQD/non-delegation doctrine. Finally, Gorsuch asked what should have been a predictable question about the Indian Commerce Clause. Katyal was stumped.

MR. KATYAL: I don't know that I have a position on that. It maybe is a little too afield for me to…

Who played Justice Gorsuch in Katyal's moots? Did no one bring up the Indian Commerce Clause? General Sauer addressed this point directly during his rebuttal, so the government was ready.

Justice Barrett

The third key vote was Justice Barrett.

Justice Barrett wrote in her new book that for many cases, she comes into arguments leaning in one direction or the other. But for some difficult cases, she is undecided. Here, I got the sense that she was truly trying to grapple with a complex statute. She asked probing questions of the Solicitor General, but I didn't get the sense that she landed on a clear answer. But Justice Barrett seemed to get animated during Justice Gorsuch's seriatim round. She was not getting Katyal's answers.

During her seriatim round, she picked up immediately on the word "license" in the statute.

JUSTICE BARRETT: So this license thing is important to me. And do you agree that pursuant to IEEPA, the President could impose --could regulate commerce by imposing a license fee?

Again, the very thing that Katyal did not want to talk about with Gorsuch, Barrett found important. How did Katyal respond?

MR. KATYAL: Sorry. Could you say that again?

The question was loud and clear. I'm not sure what Katyal missed. Justice Barrett repeated the question again, nearly verbatim:

JUSTICE BARRETT: Could the President regulate commerce under IEEPA by using a licensing fee?

Katyal then tries to backtrack of what he should have told Justice Gorsuch earlier:

MR. KATYAL: Not a fee. So I should have said this earlier. But license is different from a licensing fee. IEEPA and TWEA authorize licenses, not license fees. And no President has ever charged, to my knowledge, fees under those two statutes for the licenses. So fee is impermissible. License is okay.

Then Barrett nailed him for doubling back:

JUSTICE BARRETT: But I thought you conceded to Justice Gorsuch there was no difference between a tariff and a licensing fee functionally.

MR. KATYAL: Well, if the --if the licensing fee is just to --I didn't concede that.

JUSTICE BARRETT: Okay.

I sensed a tinge of sarcasm in Barrett's "Okay." Barrett asked if the government can "license exportation." Katyal replied it could not. Barrett said, "I actually looked into this." She gave as an example a ban on exporting products that have national security implications. Barrett asked if "licensing could be used in that sense, not as a revenue-raising measure" Katyal said "Exactly." A moment earlier he said the government could not do so. During rebuttal, SG Sauer mentioned rare-earth metals as an example of such products.

The arguments continued in a similar fashion. Barrett said "I don't understand that" and "maybe I'm just not tracking." She just seemed frustrated with the arguments.

Barrett's final question considered the remedy. She said it would be a "mess" to process reimbursements. Katyal tried to describe an orderly process. Barrett interjected mid-sentence, "So a mess."

On balance, Justice Barrett did not seem convinced that the government lost under the statute, and she was not even prepared to think about what the remedy should be if the Court were to reach that ruling. I think she is a likely vote for the government here.

Chief Justice Roberts

The Chief Justice began his day with an unusual interjection. During bar admissions, one of the movants listed many names, and then forgot to reference the qualifications. The Chief interrupted and asked for the qualifications. The movant said he was satisfied with their qualifications, and the proceeding moved on.

During the oral argument, Chief Justice Robert was paying close attention. He counted how many times that the Solicitor General cited Dames & Moore, and then insisted the decision was narrow.

CHIEF JUSTICE ROBERTS: Counsel, you --you've already mentioned Dames & Moore three --three times, which surprises me a little because the Court in Dames & Moore went out of its way to say that it was issuing a very narrow decision it pretty much expected to apply only in this case.

Roberts then proceeded to read several excerpts from Dames & Moore, a case decided during his term (though I question how much input he actually had). Roberts stressed that the decision was good for one ride.

Indeed, he made this same point in Bank Markazi:

The majority suggests that Dames & Moore supports the validity of §8772. But Dames & Moore was self- consciously "a restricted railroad ticket, good for this day and train only." Smith v. Allwright, 321 U. S. 649, 669 (1944) (Roberts, J., dissenting). The Court stressed in Dames & Moore that it "attempt[ed] to lay down no gen- eral 'guidelines' covering other situations not involved here, and attempt[ed] to confine the opinion only to the very questions necessary to [the] decision of the case." 453 U. S., at 661; see also American Ins. Assn. v. Garamendi, 539 U. S. 396, 438 (2003) (GINSBURG, J., dissenting) ("Notably, the Court in Dames & Moore was emphatic about the 'narrowness' of its decision.").

I've noticed in the past that Roberts has not cited Dames & Moore. Now, we know why. He took Rehnquist at his words, and treated the decision as a ticket good for one ride. Roberts no doubt reads Bush v. Gore in the same fashion.

Roberts also insisted that customers pay tariffs. He used the example of customers paying higher costs for a car. Maybe the Chief bought a car recently?

During Katyal's time, Roberts asked some tough questions about presidential powers. I think the Chief is grappling with this issue.

Who will win?

Contrary to the hot takes, I think the government ekes this one out. The vote might be weird. What happens if Justice Gorsuch finds that the best reading of the statute is that the President has the authority to issue the tariffs, but then holds that such a delegation of authority violates the non-delegation doctrine. If four other Justices agree with Gorsuch's reading of the statute, there are five vote to recognize the statutory delegation, and still reverse. I don't think anyone other than Justice Thomas might join Gorsuch on the constitutional argument. In that case, the lower court is reversed and the tariffs survive. This might be akin to Justice Powell's vote in Bakke. Or, if Chief Justice Roberts decides he wants to keep this case for himself, he will give the fifth vote to uphold the statutory authority, with many limiting principle.

Ultimately, I think I wind up where Justice Gorsuch did: the statute likely confers the authority on the President to impose regulatory tariffs, but that capacious delegation violates the non-delegation doctrine.

***

Prior to the argument, Jason Willick wrote that Michael McConnell should have taken the podium instead of Neal Katyal. He explained that the respondents should have selected the conservative McConnell over the "partisan liberal lawyer." With the benefit of hindsight, I think Willick was correct. Michael McConnell clerked with Chief Justice Roberts the term that Dames & Moore was decided. He served with Justice Gorsuch on the Tenth Circuit. He traveled in the same law professor circles as Justice Barrett. McConnell would have been uniquely situated to bring this argument forward. And it would have been so much more powerful for an actual proponent of the separation of powers to argue this case. Indeed, at one point, Justice Alito ridiculed Katyal for making a non-delegation doctrine argument that he likely would not raise in any other context. Alito said, "I found it interesting to hear you make the nondelegation argument, Mr. Katyal. I wonder if you ever thought that your legacy as a constitutional advocate would be the man who revived the nondelegation argument." An uncomfortable laughter followed. Even Justice Kagan, who was Katyal's former boss, suggested that one of his arguments "cuts against" him.

I don't think Katyal was the right advocate for this job. If the government prevails, I think eyes will turn to him.

 

Comments

[thesafesurfer]

I'm buying good cheese to enjoy with the vintage Democrat whines over an executive branch win.

[ReaderY]

I must confess I don’t understand the math. If 4 justices find the statute does not authorize these tariffs, and Justice Gorsuch finds they do but the statute is unconstitutional as Professor Blackman suggests, the Administration still loses.

[wvattorney13]

I think that's right. It would definitely be a unique line up but what you would have is 5 votes that say "the President cannot impose these tariffs." There would not be a controlling opinion or rationale. Just that the tariffs go bye-bye.

[ReaderY]

It would hardly be the first time the Court has had a splintered majority.

[Greg J]

The math proposed is that 2 find the Statute unconstitutional. They lose (This is a position I'm comfortable with, but not sold on)

5 agree that under the law as written, Trump has the power to impose tariffs (a position I agree with). Since the law is NOT being struck down altogether, therefore Trump's tariffs are legal.

My position is that you can strike down the law, but if you're not going to do that, Trump wins, because the greater power (embargos0 includes the lesser power (tariffs). So I can easily see Gorsuch providing the 5th vote for Trump in this scenario.

[Josh R]

If Gorsuch is one of the 5 and also one of the 2, then there aren't 5 votes for upholding this statute as applied to tariffs. You end with a plurality opinion (the three liberals) that conclude the statute doesn't authorize tariffs and a concurrence in the judgement by Gorsuch (joined by another justice) that the statute as applied to tariffs is unconstitutional.

[Greg J]

Not necessarily

Because what I would rule would be "I don't believe that Congress should give the President the power to unilaterally impose an embargo. But The majority disagrees. And if the President has the power to impose an embargo, he has the power to impose tariffs. Therefore until there's a majority for removing the embargo power I vote for tariffs."

There's your 5th vote

[Josh R]

What majority? In your hypo, only four justices concluded Congress can give the President the power to unilaterally impose an embargo.

[Greg J]

No, in my hypo *7* Justices believe that Trump can unilaterally impose an embargo, because that power is clearly granted by the law.

4 believe he can unilaterally impose an embargo, but can't just impose tariffs. And that position is wretched bullshit without the slightest shred of logical coherence. Because the law does not clearly deny the President the power to impose tariffs, and a tariff is in many ways just a weak embargo.

3 think he can unilaterally impose an embargo or tariffs.

2 think he can't unilaterally impose an embargo, but think if they've lost on that, then they're going to be coherent and agree that he can impose tariffs, too.

I don't know what Josh's number are, but those numbers get you to 7 for the law is constitutional, and 5 for tariffs

[Josh R]

Let me see if I have this right.

Gorsuch (and one other) conclude the statute authorizes embargoes and tariffs but violates the constitution's non-delegation principle. But because the other 7 have concluded the statute authorizes embargoes and does not violate the constitution, Gorsuch (and other) will treat that conclusion as binding precedent and give up the ghost on non-delegation. That will result in a 5-4 decision in favor of the tariffs.

I very much doubt Gorsuch will fold on that conviction because there is no binding precedent. The four votes against the tariffs will simply state the statute doesn't authorize tariffs without concluding anything on embargoes, including whether an assumed embargo authorization violates non-delegation.

[Greg J]

There is NO rational basis for saying that a President who can unilaterally impose embargoes can't unilaterally impose tariffs.

Not when the law that gave him the embargo power did not explicitly deny him the tariff power.

So a rational decider would say "I would toss the whole law. But since we're keeping it, Trump has the power to impose tariffs." Because you're not following a principle when you allow things the principle doesn't allow. Now you're just playing politics. Which a good judge won't do

[DSC]

I don’t understand the “tariffs as lesser power than embargo” argument. An embargo isn’t just a grander version of a tariff. They do different things. A tariff raises revenue. An embargo does not. Just because one is, on the whole, more severe than the other doesn’t suggest that delegation of embargo power necessarily includes delegation of tariff power.

[Greg J]

A tariff may not raise much revenue, it may mostly just act as an embargo by decreasing imports because they now cost too much.

A tariff that's targeted to decrease imports, rather than to raise money, is a "lesser embargo".

[wvattorney13]

This highlights why I don't like the "greater includes the lesser" argument. It is based solely on how the argument is framed. When you say it, the comparison doesn't work.

But you could easily reframe it and say that an embargo is a denial to Americans of all access to a foreign good. A tariff is a denial to Americans of all access to a foreign good EXCEPT when a tariff has been paid. If the President can deny access to a good altogether, they surely he can deny access to a good most of the time, but for one exception.

[Greg J]

I don't understand your point.

THe fact that someone misses the obvious, and has to have it pointed out, doesn't mean the obvious should stop being obvious.

If you can be put in jail for 10 years for a crime, then you can be put in jail for 5 years for it, because the greater includes the lesser.

If you don't want the military involved in law enforcement, then you might pass a law that saws they can kill drug smugglers in international waters (because at that point they're pirates, & the Navy has the power to kill pirates), but not arrest them. Then the greater wouldn't include the lesser, because the law explicitly excluded it.

But since this law didn't explicitly exclude tariffs, they're there

[F.D. Wolf]

The majority’s contrary conclusion rests first on stilted textual analysis. The majority picks the statute apart piece by piece in an attempt to escape the meaning of the whole. But the whole—the expansive delegation—is so apparent that the majority has no choice but to justify its holding on extra-statutory grounds. So the majority resorts, as is becoming the norm, to its so-called major-questions doctrine. And the majority again reveals that doctrine for what it is—a way for this Court to negate broad delegations Congress has approved, because they will have significant regulatory impacts. Thus the Court once again substitutes itself for Congress and the Executive Branch—and the hundreds of millions of people they represent—in making this Nation’s most important, as well as most contested, policy decisions.

Biden v. Nebraska, 600 U.S. 477, 533-34 (2023) (Kagan, J., dissenting).

I saw one analyst predict a 5-4 decision in favor of the importers with the majority consisting of Roberts, Gorsuch, Kagan, Sotomayor, and Jackson, but, unless the three liberals are willing to sign on to any opinion that says, "Trump loses", then I find it difficult to imagine exactly what the one opinion those five could sign on to would look like.

Gorsuch seems intent on resuscitating the "nondelegation doctrine", a moribund relic of the Lochner days that the Court has not invoked since 1935. I find it very difficult to see the three liberals (or even Roberts) getting on board with that. Roberts, who I am fairly certain would assign the case to himself if he is in the majority, whichever side that is, who wrote the majority opinion in Biden v. Nebraska, likes "major questions". Would the three liberals readily embrace MQD, given their excoriating dissent in Biden? I guess we'll see.

[ReaderY]

Kagan could simply find that outside of a war situation when the President has inherent Article II powers, the word “regulate” does not include a power to tax. She could do this as a matter of ordinary statutory interpretation without invoking any special doctrine.

Or she could join a compromise with Gorsuch holding that modifying taxes requires special clarity in delegation language or has a special non-delegation doctrine just for the subject.

[David Nieporent]

I saw one analyst predict a 5-4 decision in favor of the importers with the majority consisting of Roberts, Gorsuch, Kagan, Sotomayor, and Jackson, but, unless the three liberals are willing to sign on to any opinion that says, "Trump loses", then I find it difficult to imagine exactly what the one opinion those five could sign on to would look like.

Not sure why you think that's necessary. "Kagan, Sotomayor, and Jackson, concurring in Parts I, II-A through C, and IV except for footnote 7, and concurring in the judgment."

[SMP0328]

Exactly. In this scenario, the Liberal Justices would be either "concurring in part and concurring in the judgment" or simply "concurring in the judgment." Even if there's a majority against President Trump, there's no way the Liberal Justices would agree to breathe new life into the nondelegation doctrine.

[MaddogEngineer]

I agree with you here that a fractured mess of overlapping concurrences is perhaps the most likely outcome. Blackman has done a reasonable job here of summarizing the philosophies of the possible 5 votes, which support this speculation. Just like the CIT and Federal Circuit decisions, a mishmash of theories.

[David Nieporent]

Just to be clear, while I think a fractured mess is entirely plausible, I am not making a prediction that it's "most likely." I am just pushing back on the odd implication by F.D.Wolf that a fractured mess means that Trump wins. As long as 5 agree on the underlying point that Trump can't impose these tariffs here, he loses, regardless of what the reasons each of those 5 have. They don't have to sign onto the same opinion; they just have to agree on the result.

(Obviously their respective reasoning may affect how Trump can attempt to circumvent their ruling. (Not circumvent in the sense of wrongdoing; just accomplishing the same thing by other means.) That’s what Biden did with student loans, for instance, though SCOTUS later rejected those other means, too.)

[Brophy]

A strong interest in reviving or imposing a stricter version of the nondelegation doctrine is generally supported by several conservative justices on the Supreme Court, though the lineup has recently shown some fluctuation.

Justice Neil Gorsuch is arguably the most vocal proponent of a stricter nondelegation doctrine, arguing for a significant departure from the Court's long-standing "intelligible principle" test, which is a relatively lenient standard for upholding Congressional delegations of power to the Executive Branch. His position, which advocates for a much more robust application of the doctrine, was laid out in a significant dissent in the 2019 case, Gundy v. United States.

Joining Justice Gorsuch in his dissent in the Gundy case were Justice Clarence Thomas and at that time Chief Justice John Roberts, indicating their agreement that the Court should fundamentally reconsider its nondelegation jurisprudence.

Justice Samuel Alito has also expressed an openness to revisiting the doctrine, although he concurred only in the judgment in Gundy because he did not believe that specific case was the right vehicle to invalidate a statute under the existing precedent. His opinion in that case served as an invitation for future challengers to bring the issue back to the Court.

Justice Brett Kavanaugh also signaled his sympathy for a stricter doctrine by praising Justice Gorsuch's scholarly dissent in Gundy as warranting "further consideration in future cases," even though he did not participate in that decision. However, in the more recent 2025 case, FCC v. Consumers' Research, Justices Roberts, Kavanaugh, and Barrett all joined the majority opinion, which rejected a nondelegation challenge, suggesting they are not yet fully committed to the forceful, sweeping application sought by Justice Gorsuch.

Therefore, while Justices Gorsuch, Thomas, and Alito have consistently shown the strongest and most immediate willingness to revive the doctrine, Justices Roberts and Kavanaugh have, at different times, either joined a dissent or expressed interest in revisiting the doctrine, though their votes in the latest relevant case suggest a more measured or uncertain position on its imminent, sweeping reinvigoration.

[wvattorney13]

They say that you get a different impression by being in person but that is wildly different than what I got from the audio.

I think Barrett, Gorsuch, Roberts, and Kavanaugh are there, but they would prefer to be there for a better reason that the Respondents are giving. Gorsuch especially would vote for them if they would just whisper the word "non-delegation." But they won't.

[David Nieporent]

They can rule for any reason they want, though. I said yesterday that I thought there was a clear majority against Trump but it might be fractured. But all that matters (for these purposes) is that there are 5 votes against the tariffs, whatever the reasons. MQD, NDD, plain meaning, whatever.

[Jett's Pop]

Exactly so. That's why the post does not make any sense. It does not matter if five Justices believe that the statute authorizes the tariffs if one (or more) of them thinks the statute is unconstitutional.

[MaddogEngineer]

Blackman's summary of each justicies position here is reasonably good. But his Real Housewive's kremlinology from being the room where it happens lets him make irrelevancies seem like they matter. When they do not.

[EllaWilson]

The Executive determines what is a national emergency, not the Judiciary.

[Milhouse]

Irrelevant. Congress says what the executive can do in an emergency, and the judiciary determines what it is that Congress said.

[Greg J]

Congress apparently said that the President can stop all imports if he thinks that the best way to deal with the emergency.

Congress did NOT say "but he can't impose tariffs to deal with them emergency".

If he can completely stop trade with an embargo, he can slow it down with tariffs. The greater power includes the lesser.

Unless you can get to 5 on "President can't unilaterally impose an embargo" (and I don't think you can) then you don't have a coherent position for "President can't impose tariffs".

[Milhouse]

First, he contended that President Nixon imposed a global 10% tariff under the Trading With the Enemy Act (TWEA), the predecessor statute to IEEPA.

Kaytal should have read Eugene Volokh's post here on VC, and he would have known how to answer that. According to an eyewitness, it is simply not true that Nixon imposed that tariff under TWEA.

[OpinionsVary]

They did mention that actually but earlier in the arguments.

[No One Of Consequence]

Yup. And the Government said that regardless of what was said at first, the Nixon administrations consistent litigating position was that it was in fact done under the TWEA. Nixon just didn't want to put it in those trems when selling it to the public (and foreign allies).

[ReaderY]

I have to say Respondents’ lawyer appeared unprepared. He made several big mistakes, including conceding that licenses were “economically” equivalent to tariffs and then totally backtracking later and arguing that the statute only authorizes licenses that merely give permission without raising revenue. This issue was central to his statutory interpretation claim and I’m astonished he didn’t prepare more carefully. He also was unprepared for Gorsuch’s Indian Commerce Clause question.

[David Nieporent]

Katyal did screw up the license question, but cleaned it up, as did Gutman (who I thought was impressive). This isn't like figure skating, where scoring is continuous throughout your routine, and if you fall you lose points that you can't get back just by getting up and continuing with your program. If he said something wrong but then fixed it, the fact that he provided the helpful answer is all that matters.

The Indian thing was just silly. It's Gorsuch's weird little obsession, but the decision in this case is not turning on anything to do with Indians. I guess this is a new lesson for SCOTUS practitioners: in your moots, come up with any even remotely tangential (yes, that's an oxymoron) way to bring Indians in.

[MaddogEngineer]

You may think Gorsuch's Indian thing is weird, but it's also relevant from an originalist perspective. And instead of dismissing it as weird, I'd think you would be encouraged as it's also the kind of principle that makes overturning the Insular cases more likely.

But I get it, people (maybe not you) who think originalism is fundamentally unprincipled won't understand why someone like Gorsuch might fixate on the Indian clause constitutionalism.

[wvattorney13]

I have to admit that even as an originalist, I can't see what the Indian Commerce Clause has to do with this case. At all.

Relations with Indian tribes have always been sui generis. We treat them in ways like a foreign government but also as a dependent and conquered people. It is unique in our law and does not translate into foreign relations and certainly has no relevance to this question.

[dwb68]

Contrary to the hot takes, I think the government ekes this one out.

Blackman is always a contrarian indicator. Both fantasy scotus and polymarket predict a win for the respondents. Sauer lost when he said that the President could impose tariffs for climate change. This court is not a fan of the administrative state, even when its Trump.

The opinion will be limited to the emergency statute. Alito's dissent will say that the government can reimpose the tariffs under a different section, so it will be a pyrrhic victory for the respondents.

[wvattorney13]

"This court is not a fan of the administrative state, even when its Trump."

This is what people miss. I would guess that Roberts, Barrett, Kavanaugh, and probably Gorsuch all really don't like Trump that much.

[David Nieporent]

Interestingly, the three he appointed! But that dislike didn't stop them from issuing an insane immunity ruling in his favor two terms ago.

[JoeFromtheBronx]

That's different. Once they decide against the Administration, they "don't like Trump." It's like concern about the courts interfering with legislative discretion until local school boards teach the wrong things to elementary school children.

[David Nieporent]

Blackman is always a contrarian indicator. Both fantasy scotus and polymarket predict a win for the respondents. Sauer lost when he said that the President could impose tariffs for climate change. This court is not a fan of the administrative state, even when its Trump.

Gorsuch in particular was persuaded by the "one way ratchet" argument.

The opinion will be limited to the emergency statute. Alito's dissent will say that the government can reimpose the tariffs under a different section, so it will be a pyrrhic victory for the respondents.

It wouldn't be. As Katyal pointed out, there were clear reasons why Trump hasn't tried to rely on those other statutes: they don't give him the sweeping power he asserts here.

[dwb68]

What Katyal said yesterday and what Sauer will later argue and what the Supreme Court will accept are three different things. Alito signaled Trump can reimpose tariffs under different authority.

[David Nieporent]

Alito was the one who was basically hinting that SCOTUS should rule on that now to save time, but none of the other justices were interested in exploring that.

[CommentMonkey]

"This court is not a fan of the administrative state, even when its Trump."

To the extent the court is skeptical of the administrative state, it is primarily, if not entirely, based on concern that independent agencies or bodies are not subject to the President's control. Thus, they should not be allowed to perform executive functions.

These tariffs were imposed directly by the President. Same with the hypothetical climate change tariffs. The court's skepticism of the administrative state doesn't seem to me to have any bearing on this case.

[David Nieporent]

Blackman is always a contrarian indicator.

This is purely strategic on his part. If he makes the same prediction as everyone else, nobody's going to notice even if it's correct. If he makes a contrarian prediction and he's right, he will never let anyone forget that he did so. And if he's wrong, well, he put in just enough caveats that he can shrug and say, "Well, I never said I was certain."

[Bubba Jones]

Blackman is just trying to get a job from Trump.

[wvattorney13]

I said in the other thread that I think non-delegation is the way to go. Suppose Congress unambiguously passed a statute that said that during times when the budget is out of balance that the President can set income tax rates at the appropriate amount.

Would anyone seriously believe that such a law is constitutional? If not, why are tariff rates materially different?

[David Nieporent]

Wow. I had thought it would be 7-2 against Trump, but after reading Prof. Blackman's "analysis," I think it's more likely to be 9-0 against Trump.

[Greg J]

Yeah! just like it was 9-0 against Trump in the Colorado case!

Or, wait, that was 9-0 FOR Trump

[David Nieporent]

I don't know why MAGA people are so stupid.

1) While many people thought Trump should lose the Colorado case, I don't think there was a single person who thought he would. We've gone over this many times.

2) My comment was what-I-thought-was-obvious sarcasm mocking Prof. Blackman, not an actual prediction. I still think 7-2 is likely.

[Greg J]

You morons were giving all sorts of brain dead bullshit arguments about why he "should" lose, that were such complete and worthless crap that not even KJB would agree with any of them

There was NO "should" there, other than "I hate Trump therefore bad things should happen to him."

Which is the exact same argument you're making here

9-0

It wasn't 9-0 because they wanted comity, it was 9-0 because there wasn't so much as one single rational, reasonable, or remotely valid argument for your position that the 14th Amendment gave State gov't officials new powers they never had before

[David Nieporent]

Unfortunately, one has to meet the justices where they are, so Katyal couldn't take the position that this whole "foreign affairs" thing is unconstitutional, atextual bullshit and the president has no special foreign affairs powers (in peacetime) besides being the only person who can speak for the U.S. in talking to other countries.

"This will affect our relations with other countries, so therefore it's an Article II issue" has no place in constitutional interpretation. Anything the U.S. does could affect our relations with other countries. So what? Can the next Democratic president ban assault weapons on his own initiative under the imagined foreign affairs power because many of those weapons, after being manufactured and put on the market, are smuggled to foreign countries, upsetting those countries? Of course not.

Or climate change, as the justices asked about? (They asked about it under the president-declaring-a-fake-emergency topic, though.) Obviously climate change is "foreign facing," as Sauer termed it. That fact, though, gives the president zero legal authority to regulate it.

[Greg J]

Article II
Section 1

The executive Power shall be vested in a President of the United States of America.

Funny, I don't see anything there about "only in wartime"

[David Nieporent]

Funny, I don't see anything about "foreign affairs" being part of "the executive power."

[Greg J]

Really? I didn't realize you were that stupid / ignorant.

"Negotiating with foreign powers" is an inherently Executive task. Approving the results is a power given to the Legislature. But doing the negotiations, doing the conversation, is an Executive one.

Glad I could help educate you there.

[wvattorney13]

" besides being the only person who can speak for the U.S. in talking to other countries."

Under your view, he wouldn't be saying much of anything except, "I dunno, let me run that by the Senate" over and over again.

[David Nieporent]

Well, yes. The president cannot make treaties without the senate's approval. That's explicit.

While it's not controlling, I think Scalia's dissent in Zivotofsky — joined by Roberts and Alito — is far more compelling than the majority: the president has virtually no exclusive powers related to "foreign affairs."

[grb]

Did anyone else find this humorous?

Blackman : "I say this as someone who has not formed a solid opinion on the matter. I really haven't blogged about the issue, and came into the argument with an open mind."

Really now! Blackman's mind is "open" only as long as it takes to figure which position curries favor best with the White House. That judgeship or administration post ain't gonna nominate itself.

[John F. Carr]

Without digging into the precedent, my feeling is a "license fee" is a user fee that recovers the cost of administering a program rather than a tax that serves to raise revenue.

[David Nieporent]

Yes, but the larger point was that the statute authorizes licenses, not license fees at all.

[jmh530]

The debate in the oral argument was that license fees were economically similar to tariffs, but it all got mucked up with licenses being economically similar to tariffs.

[windycityattorney]

Also, and I could be wrong, when someone pays for a 'license' to do something...it's more like a one time fee good for a set period of time.

Licensing every single item of trade coming into a port every time an item arrives at port doesn't seem practical to me. Especially when its by the shipping container load. I.e, imagine having to get 10,000 separate licenses per container for whatever the hell item is being imported. Say it be shoes or clothes or lawn mowers or whatever.

[wvattorney13]

That is certainly the ideal but it never works that way in practice. See CCW fees. Plus, would courts then be in the business of determining how much the administration really costs?

What is the scope of the program? Should a hunting license only pay for the marginal cost of issuing a license or should it encompass all of the wildlife management costs? Should hunters have to pay for all wildlife management when everyone benefits from it and hunters are doing their part already to manage wildlife?

What if the staff is bloated and you don't need a second executive secretary of hunting licensure? Can the courts order the guy fired? Or the fee to go down by the salary/number of licenses?

[John F. Carr]

Courts manage to distinguish fees from taxes. When distinguishing fees from taxes, courts do not generally require efficiency or precision.

Example of a similar distinction: The city of Newton, Massachusetts charged a fee to use a field. Plaintiff was injured on the field, allegedly due to the city's negligence. If the fee was to recover the city's costs, plaintiff would lose thanks to a state law related to recreational use of land. If the fee was to raise revenue ordinary tort rules applied. Marcus v. City of Newton, 462 Mass. 148 (2012).

[David Nieporent]

I think you're making a category error here. The issue is not "How must a licensing fee be set?" Congress can set a fee for a license at a trillion dollars if it wants, such that several such licenses would cover the entire deficit. The issue is, "What distinguishes something called a licensing fee from a tax, such that Congress, not the president, has to impose it?"

[jmh530]

I agree with the general sentiment that Neal Katyal didn't do as good of a job as I would have liked. However, you don't mention that the Oregon AG who went after him cleared up some of the issues relates to licenses and license fees. I think Coney Barrett votes against the government on that basis. So the question is whether one more of the conservative justices would vote with her.

[wvattorney13]

I fail to see the distinction between licenses and license fees. Licenses cost money. We have hunting licenses, drivers licenses, vehicle license, law licenses, etc. We have to pay for every single one of those.

Assuming that this would be the one "free" license, it is just assumed that the taxpayer should have to eat that cost?

I take the point that a court could rule that an excessive license fee is invalid as it is simply a tax in disguise. But a reasonable licensing fee is not assumed by the requirement of a license? That is a rather stilted read, IMHO.

[David Nieporent]

In the context of international trade there are often licenses. You probably read about them in the context of "export licenses" of various weapons or sensitive goods. As was discussed at oral argument, the government does not appear to charge a fee for these licenses.

[No One Of Consequence]

Why does everyone weitiing these articles seem to assume that Hustice Thomas is so obviously a vote for the Administration that he's hardly worth mentioning?

[MaddogEngineer]

Yes, I've been mulling this over in the back of my mind. Thomas being a rather recent participant in oral arguments, let alone big cases, I didn't have a feel for the implications of his questions. They seem to set up his big picture doctrinal competing concerns.

I'm much more confortable assuming Alito likely to defer to the executive authority of a president he's philosophically aligned with.

It's just like people forget that Thomas has been rather firm about the meaning of the birthright citizenship clause.

[steve sturm]

NAL…

Was there no discussion of the ‘emergency’ aspects of this case, as in whether current conditions constitute an emergency for the purposes of imposing tariffs. In my mind, if there’s no emergency, then the issue of tariffs is moot.

And while I’d prefer that the courts don’t get to micro-managing the executive branch, I am more concerned about allowing ANY President the ability to declare an emergency, similar to concerns about letting ANY President get to make the call of such things as ‘invasion’, ‘insurrection’ and so on.

[MaddogEngineer]

Short answer: no.

Loss of legislative veto likely explains how original design was blown up. And why judges were not given statutory criteria to determine a legitimate emergency. Because it's a kind of political question, that Congress thought it could have the final word about.

[windycityattorney]

True. But they did argue over whether a tariff is a tax. The govt argued it is not...it is a form of 'regulation' (to fit the statutory language). Many justices seemed skeptical of that.

But the implication of it being a tax is obviously important due to the Congress' specific delegated power to raise and levy taxes. But does this court want to decide the case on non-delegation grounds? I bet Gorsuch would like that. The others? I don't know. Could they simply decide it on textualist grounds that the statute doesn't use the word tariff and rely on major questions doctrine? Could be more votes for that approach than non-delegation. Lots of ways for the administration to lose.

[MaddogEngineer]

Blackman's personal grandiosity aside, I just find it amusing that the issues that arose at oral arguments had little resemblance to the things commenters on prior blog entries said about the tariff case.

There's no way the statute authorized the president to implement these tariffs! It never says "tariff" anywhere! And there was no actual emergency! Judges absolutely can second guess the president on that! Massive tariffs are overreach! (for unspecified reasons)

Meanwhile during the oral arguments, the most attention the justices paid to the emergency question was the counter-question that a future Democrat president could slap tariffs on cars because of a climate emergency. Without any serious rebuttal to that about constitutionality or statutory limitations. Certainly why I oppose on policy grounds. That's an argument to repeal the statute, not find it illegal. Unless one wants to principled and revive the non-delegation doctrine, which would be fine with me.

Talk of Nixon implementing some tariffs under predecessor statute with carryover language into the new one, and precedent that the language authorized tariffs. That Congress apparently did not find his actions objectionable enough to clarify the wording.

No "threshold" was discussed, above which a president has gone too far with tariffs. At least a line any judge could rightly declare. Pretty much an all or nothing deal, not being a little bit pregnant. Despite prior Resistance™ proclamations, it appears that only massive tariffs trigger MQD scrutiny, while a few tariffs do not. The question debated was whether the president had this authority at all, not only denied if he went too far.

And then there is this whole historical business of licenses, and capacious language of "regulate". New to me, didn't read any amicus briefs in advance.

Best counterargument to all that against Trump's tariffs is why tariffs at all, if other authorized means are available: quotas, embargoes, licenses. That is a much more nuanced question than Orange Man Bad. I do think the Orange Man is bad, but that's not a legal argument.

I would welcome new precedent (or overturning older ones) to limit the president's authority. What I heard during oral arguments was that there are ripple effects to that. Which I would welcome, but I suspect others would not. Hence some of the special pleading I've endured, because it's Trump doing this.

[River]

I don't think the counting works that way. If we end up with four conservatives saying the statute authorizes the tariffs and that is constitutionally fine, one or two saying the statue authorizes the tariffs and that violates the constitution, and three or four justices saying the statute does not authorize the tariffs, that is only four votes for the tariffs and five against. The government looses. You may not get much clear precedent from that, but on the actual question in the case it is a clear loss for the government.

[Greg J]

I would be willing to toss the law, entirely.

If can't get a majority for taking away President's power to unilaterally impose an embargo, I can see no rational argument for why tariffs are a bridge too far.

So no, "the whole law sucks, but it's not going to be struck down" does not translate to "therefore he can't do tariffs".

[wvattorney13]

Because tariffs, unlike an embargo, are the exacting of revenue out of the pockets of an American importer doing a lawful business. He has the right to keep his own money unless and until Congress imposes a tariff on him.

The Constitution sets that limit.

[Greg J]

Any embargo takes $$$ out of Americans' pockets, too, because now they are forced to buy the much higher priced American good.

Or, it, like a tariff, takes nothing out of Americans' pockets, because they just don't buy the good.

The Constitution gave Congress the power to impose tariffs and embargoes. Congress passed that power on to the President with the "emergency powers" law.

Totally fine w/ SCOTUS saying "the law is invalid, President can't do either." But it's insane to say he CAN do embargoes, but can't do tariffs, when the law doesn't restrict.

[David Nieporent]

If can't get a majority for taking away President's power to unilaterally impose an embargo, I can see no rational argument for why tariffs are a bridge too far.

Um, because the statute expressly mentions embargoes but not tariffs? (No, it doesn't use the word "embargo," but it expressly says that the president can "prohibit any transactions," and "prevent or prohibit, any … importation or exportation of … any property in which any foreign country or a national thereof has any interest by," which is what an embargo is.)

Also, your framing is wrong; the issue is whether the president was ever given the power; if he wasn't, saying so is not "taking away" that power.

[wvattorney13]

Can the President "prohibit any transactions" upon which a tariff has not been paid?

[David Nieporent]

Well, since there is no legal mechanism for imposing a tariff, there is no legal mechanism for paying or collecting a tariff, so that would simply be an embargo as it would prohibit all transactions.

[Greg J]

The greater power includes the lesser power, David.

Unless the law explicitly denies the lesser power, which this one didn't.

A tariff, by driving up the cost of a foreign god, and making it less competitive with American ones, decreases the importation of that good.

If you can block it altogether, then you can just decrease it, if that, in the President's sole judgement, is the "best" way to deal with the "emergency".

Which is why "emergency powers" laws suck

[River]

I have no idea why you think that is a reply to anything I said.

[Hugh]

The fact that no one even bothers to ask how Alito will vote on this, and the only mention of him in this account is his cheap shot at Katyal, tells me how fundamentally unserious he is. Impeach him.