Three Very Short SCOTUS Unanimous Opinions In One Day, But No Tariffs

The Tariffs case is still cooking, but the Court is clearing the brush.

Generally, at the end of June, there is a running angst for a pending significant case. It is unusual to have that sort of anticipation so early in the term, but here we are. In January, the Court has had three hand-down sessions. So far, eight signed opinions have been handed down. None of these cases have been particularly significant. And still not tariffs. The Court seems to have other priorities. You could imagine the Court saying that no other opinions will be issued until tariffs is released, but that has not been the plan.

What is the cause of the delay? Who knows. But let me offer some speculation. The longer this case goes, the more likely that Trump wins, at least in part. There is a stay in place, and new tariffs continue to be imposed. As the Court takes more time, the remedial issue becomes more complicated by the day. At the outset, the plaintiffs sought a preliminary injunction in light of irreparable harm. And as the Court takes more time to write and review, that irreparable harm becomes greater. This ruling does not need to be a ruling for the ages, so iterative rounds of revisions have a diminishing return. After the case was argued, I put the odds at 51/49 that Trump loses. I've now flipped to 51/49 that Trump wins, at least in part.

The three cases decided today were all very short and were unanimous.

Berk v. Choy was a 9-0 reversal. The majority opinion by Justice Barrett was 11 pages.

Ellingburg v. United States was a 9-0 reversal. The majority opinion by Justice Kavanaugh was 5 pages.

Coney Island Auto Parts Unlimited, Inc. v. Burton was a 9-0 affirmance. The majority opinion by Justice Alito was six pages long. Indeed, I watched the argument in Coney Island, which may have been the shortest oral argument in the modern era.

I can't recall a day with three majority opinions that were all unanimous and all so short. Also, I would note that Williams & Connolly was counsel in Coney Island and Ellingburg. Today was a good day for Lisa Blatt and Amy Saharia.

Comments

[dwb68]

Hard to predict.

Trump may lose, but the dissent may say he can impose tarrifs under a different section (Alito hinted this), which Trump would immediately do. So there would not be any relief for the plaintiffs anyway (which might explain why they arent lifting the stay).

I am in the Trump loses but he will immediately reimpose them camp.

[John F. Carr]

Unless tarrifs can be retroactive, a decision against them on narrow grounds requires a refund of billions of dollars.

[Bob from Ohio]

"requires"

SCOTUS can just use its equity powers to say no refunds are necessary, if it wants to split the baby.

[Brett Bellmore]

Ellingburg is nominally unanimous, but Thomas entered a separate concurring opinion, explaining that he thought the ex post facto clause should, properly, apply to civil penalties, too. Well worth reading.

[David Nieporent]

No, it isn't "nominally" unanimous. It's unanimous. A concurrence virtually always makes some argument not made in the lead opinion, or there wouldn't be any reason for it. But it in no way alters the fact that Thomas and Gorsuch "join the Court’s opinion in full."

[Brett Bellmore]

Yes, I know, all I meant was that all 9 hadn't simply joined in the majority position and left it at that.

[Sarcastr0]

nominally:
in name only; officially though perhaps not in reality.

That's not the right word to use.

[Stupid Government Tricks]

And of course you don't know it either, since you didn't supply it, or you're being a dick regardless of whether you know it. My money's on the latter.

[Syd Henderson]

Thomas has a good argument for that, although the Court decided that in this case the restitution law does apply to criminal law so ex post facto may apply. The case is actually pretty interesting.

[Bored Lawyer]

Berk is interesting, because it calls into question application of anti-SLAPP statutes in federal courts. Some allow it, others don't.

[Dr. Ed 2]

I think that Berk will become quite interesting in the inevitable fuselage of litigation against ice guys. I’m acting on the presumption that most if not all of this litigation will be transferred to federal court on the grounds that either the ice guy himself is a resident of another state and/or the US government is a codefendant, as the ice guy is an agent of the federal government.

Taking literally, and I’d like to see a law professor’s review of what the case actually means, Burk appears to say that it’s what’s in the federal rules and not state rules that matters. Well, there’s a lot of things in the state rules and a lot of states, but if SCOTUS says that the federalrules apply, it makes all of the state rules irrelevant. Right?

[Michael P]

You meant fusilade, not fuselage, unless the main body of an aircraft has something to do with that litigation.

[John F. Carr]

Lawsuits against ICE officers acting in their official capacities are governed by the Westfall Act. ICE guy is immune from personal liability. Sometimes the federal government pays. Sometimes sovereign immunity wins.

[Katall]

On tariffs, I think SCOTUS might be waiting to see if Congress tries to rein in the Executive Branch. OTOH, when Justice Robert's cannot get a reasonably priced bottle of French wine, or Justice Kavanaugh has to pay $30 for a pint of Guinness, we might see some action.

[steve sturm]

NAL, while figuring out the remedial issues may be tricky, wouldn’t that imply the Court has (1) decided against Trump and is (2) now figuring out how to apply the remedy?

If they ruled in favor of Trump, there wouldn’t be a remedial issue to deal with, thus nothing holding release of the decision?

Another thought: Trump’s threatening tariffs for this and that might be providing additional ammo (is it really a national emergency that Trump wasn’t awarded the Nobel?) to the No votes, and they’re holding up release in order to include the additional ammo in the decision?

[SRG2]

Alternatively, Thomalito are deliberately holding things up so that when they can delay no longer, they can argue that it's been going on for so long, it would be disruptive to rule against Trump.

[Lee Moore]

I don't see the problem with requiring tariffs to be repaid if they're illegal. OK I see it might be inconvenient for the government, but so what ? They've got a printing press, and they're not shy about using it. And if the government levies taxes on you when they're not entitled to, it would be alarming for the court to say "just stop that you naughty boys. But keep the cash."

PS As previously stated, I think the argument that tariffs are not a species of regulation of imports is feeble, but that's an entirely different question.

[Da5id]

I very much hope Trump loses on Tariffs. The recent "I'll raise your tariffs unless you give us Greenland" makes it even harder for the administration to argue that they are "emergency" actions. But have no idea how it will play out.

I wonder if there is any chance the court will punt and effectively say "fuck you Congress, defend your own prerogatives and don't keep making us be the bad guys". The constitutional system doesn't function well when Congress isn't coming anywhere close to fulfilling its role.

[Lee Moore]

What role did you have in mind ? It passed some legislation a while back, the Executive acted, in its opinion in accordance with that legislation, some folk disagreed, and the question is winding its way through the courts - and much quicker than such matters normally wind.

Were you thinking they should hurry up and impeach a few District Court judges ? I share that sentiment, but since the constitution requires a two thirds majority in the Senate to remove a judge, it would be a bit of a waste of time.

Of course Congress could rush out and pass some more legislation amending the President's powers in relation to tariffs, but that would require them to agree on what amendments to make, and maybe they don't. And they'd have to agree to the extent of two thirds majorities in both chambers, if they were to try amending in the direction that you seem to favor. Easier for them to amend it in the direction you do not seem to favor. So maybe best for you if they continue to sit on their hands ?

[Da5id]

I mean Congress could either remove the President's powers to do emergency tariffs or to amend them to make them more circumscribed. If Congress cared about defending it's taxing prerogatives and wasn't spineless/ineffectual they'd have done that by now.

I don't see a need to impeach judges.

If SCOTUS doesn't throw up their hands, I'd hope for a decision that like the Biden loan thing says it is a "major question" whether to impose large/broad tariffs and Congress can't give that power away. But who knows.

[F.D. Wolf]

Congress, under the IEEPA, can override the President's declaration of an emergency through a joint resolution. A resolution to override Trump's declaration of an emergency in the tariff case was introduced in the Senate and was tabled by a vote of 50-49.

[Lee Moore]

If SCOTUS doesn't throw up their hands, I'd hope for a decision that like the Biden loan thing says it is a "major question" whether to impose large/broad tariffs and Congress can't give that power away.

IANAL but I think you're confusing two different things :

1. whether and to what extent Congress can delegate its taxing powers to the executive branch has to do with the "non delegation doctrine" and it applies, if it applies, whether Congress has spoken clearly or not. So if this is the doctrine you're hanging your hat on, you can't complain about Congress abdicating. Because Congressional delegation of tariff power would be unconstitutional whatever it said in its laws. The practical difficulty is in crafting a version of the non-delegation doctrine that would forbid delegating tariff power, but allow delegating other regulatory powers - on which delegation nine tenths of the modern adminsitrative state hangs. If you're rooting for the non-delegation doctrine to save us from Trump's tariffs, you're rooting for the Rand Paulization of the federal government.

2. the "major questions" doctrine is that Congress must be assumed not to hide elephants in mouseholes - ie unless it's explicit, the courts will not presume a "slaying of the firstborn power" within the meaning of "pest control" in a statute about weedkiller.

In this case the statute permits the regulation of imports, which the government claims includes levying tariffs, on the basis that tariffs are a form of import regulation. Which they obviously are. But in the very same clause in which the power to regulate imports is granted, is the power to block an import entirely.

Thus to run the major questions doctrine you need to claim that the power to tax an import is a greater power than the power to block it altogether. Which is a logical absurdity. If an import is blocked, it is blocked. You cannot import the thing. If that same import is taxed, you get a choice - import and pay, or don't import. The latter is equivalent to the block. But the former allows you - if you choose - to circumvent the block, by paying the tariff. The tariff is therefore necessarily a lesser power than the block.

There are no doubt plausible arguments that could be raised about Trump and his tariffs, but "major questions" is not one of them.

[F.D. Wolf]

If the Court rules against Trump in the tariff case, one option it might exercise is to make relief exclusively prospective, striking down the tariffs as illegal, but denying any refunds for any already paid.

It did something similar just recently in Office of the U.S. Trustee v. John Q. Hammons Fall 2006, LLC (2024). The Court had previously struck down a system that charged debtors disparate fees in bankruptcy court, depending on which district they filed in. This case involved a group of debtors seeking an estimated $326 million in refunds for overpaid fees. The Court, in a 6-3 opinion by Justice Jackson, denied that relief, citing the "extreme disruption" that would result and the "enormous bill for taxpayers". The tariffs case would involve refunds in the hundreds of billions.