From Prof. Jack Goldsmith (Harvard) on the Tariff Decision

"A massive defeat for the president and an extraordinary affirmation of the Supreme Court's power."

An excerpt from his Executive Functions post today; note that his and Curtis Bradley's Foreign Affairs, Nondelegation, and the Major Questions Doctrine, 172 U. Pa. L. Rev. 1743 (2004) was heavily cited both by Justice Gorsuch's concurrence and Justice Kavanaugh's dissent:

A very significant aspect of the Chief Justice's [Major Questions Doctrne] analysis is that three conservative justices embraced it to rule against President Trump's signature policy. And they did so in the most difficult possible context, with an issue involving national security and foreign affairs.

This is a rebuttal to those who have claimed that the Court, or at least those three justices, invoke the doctrine opportunistically and politically to hurt Democratic presidents. And I think it signals more clearly than ever that, going forward, this Court is going to view broad delegations of statutory authority to a president to act, and/or extravagant presidential interpretations of authorizations to act, with skepticism. The three justices firmly committed here to the MQD can (if they wish) ensure that outcome in a case of just about any political configuration.

To the extent this is true, it is a hugely important complement to the Court's emerging broad view of the unitary executive. Put another way, it is a vindication of Sarah Isgur's view that the tradeoff on the Court for enhancing vertical unitary presidential control is "for the court to rein in Congress's bad habit of delegating vast and vague powers to the executive branch," including through MQD.

It also puts in a better light the Court's interim orders to date in Trump 2.0, a large number of which, due to the application strategy of the Solicitor General, involved issues of vertical control. The tariff opinion gives the lie to the notion that the Court is in the bag for the president and also makes its approach to issues of presidential power in Trump 2.0 both clearer and more nuanced….

[T]he Trump press conference [following the decision] was an amazing portrait of a president who claims to be unbound by law seethingly acquiescing in a court ruling on "an important case to me" that he abhorred with every fiber of his body. It is clear the administration will use every alternative legal tool at its disposal to replicate or go further in deploying international economic weapons. That is its legal prerogative. But still, Trump's anger combined with his acquiescence in the ruling elevated the Court and was a remarkable testament to its power….

Comments

[Please, Daivd, Seek Help]

I would think someone whose position is that the conservative justices are ideologically in the tank for conservative presidents and just acting according to ideological whims, is not likely to update their priors here: tariffs are an issue that until recently did not have the ideological valence it now does. In 2015 there was approximately zero emphasis on tariffs as a policy tool and not a huge gulf between parties in disposition towards trade restrictions. Trump moved the Republican Party single-handedly. So someone who is skeptical of the principled commitment to the MQD might simply say that Thomas and Alito and Kavanagh are closer to being in the tank for Trump and the other three Republican appointees have more traditionally conservative or laissez-faire views.

I am not saying I quite adopt that position. I quite liked Gorsuch's concurrence and it struck me as probably sincere and honest. But I don't think Goldsmith's argument is likely to convince a skeptic in terms of applicability broader than this specifically weird off-dimensional issue.

[BFranklin1776]

Let's be honest here. The Democrats oppose the tariffs because Trump is spearheading them.

If the Kenyan or the pedophile had put them in place, they'd be cheering them on.

[LexAquilia]

Like Gorsuch described.

[Katall]

Nope. Most democrats understand that tariifs hit the poor hardest. They might support higher taxes, but not general tariffs. Trump, however seems to like higher taxes in the form of non-congressionally approved tariffs.

[BFranklin1776]

Given that corporate America absorbed most of the tariffs, they didn't hit the poor at all. They hit the rich. I guess the Democrats are the party of the rich now.

[Katall]

I thought that conservatives opposed taxing corporations because they 'just passed on the costs to their customers.'

[BFranklin1776]

Some conservatives might believe that. Not me.

[Frank Drackman]

An exercise of "Raw Judicial Power"
I just thought that up, ought to patent it. (Thinking, not the phrase, that would be "Copyright")
Borrowing from the Late Great's Van Zant, Rossington, and King,
"I Hope Neil Gore-Sucks will remember,
Southern Man don't need him around, anyhow"
I'm not saying by Gore-Sucks "not being around" I want him to get the Charlie Kirk Treatment, I'm thinking more Abe Fortas, who resigned over a mere $20,000/year retainer ($180,000 in 2026 Shekels)
Yes, Lex, paid by a Hebrew, (We call it, one Hebrew doing another Hebrew, a "Solid)
Hope Gore-Sucks Glans is as Pristine as the Virgin Mary, because if it's not........
What do I predict??
"Pain" (HT C. Lang)

Frank

[Katall]

What?

[BFranklin1776]

I'm not sure how this is an affirmation of the Supreme Court's power. The decision came from within, not some external force. The Supreme Court's power in this case, like every other, comes from the willingness of the people to obey them.

[bloocow2]

I've no comment on the legality or effects of this decision on the American people. But as a citizen of one of the many countries that Trump has levied tariffs on for no good reason, I'm pretty happy with the decision!

[BFranklin1776]

How much in tariffs does your country levy on America?

[10x25mm]

John Roberts just raped the Ukrainians. All of Trump's anti-Russian oil tariffs are gone. The defeat of Ukraine is only a matter of time now.

[bloocow2]

You do know that Congress can vote to impose tariffs, right?

[BFranklin1776]

Congress will never vote to do anything that is in the best interest of America, because the globalists always will have enough power to block anything.

[jb]

Trump didn't put tariffs on Russian oil, because Biden had already banned its import. Nice try, though.

[not guilty]

To this point I have read only the syllabus, not the decision, but I am not sure yet that the discussion of the Major Questions Doctrine is precedential under Marks v. United States, 430 U.S. 188 (1977), which held that:

When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, "the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds."

Id., at 193, quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976) (opinion of STEWART, POWELL, and STEVENS, JJ.).

It appears that Justice Kagan filed an opinion concurring in part and concurring in the judgment, in which Justices Sotomayor and Jackson joined. Justice Gorsuch observed in his full concurrence:

Past critics of the major questions doctrine do not object to its application in this case, and they even join much of today’s principal opinion. But, they insist, they can reach the same result by employing only routine tools of statutory interpretation. Post, at 1 (KAGAN, J., joined by SOTOMAYOR and JACKSON, JJ., concurring in part and concurring in judgment). Meanwhile, one colleague who joins the principal opinion in full suggests the major questions doctrine is nothing more than routine statutory interpretation. Post, at 1 (BARRETT, J., concurring). Still others who have joined major questions decisions in the past dissent from today’s application of the doctrine. Post, at 1 (KAVANAUGH, J., joined by THOMAS and ALITO, JJ., dissenting). Finally, seeking to sidestep the major questions doctrine altogether, one colleague submits that Congress may hand over to the President most of its powers, including the tariff power, without limit. Post, at 1–2 (THOMAS, J., dissenting).

Assuming this description of the respective positions taken by various members of the Court to be correct, it would appear that the Kagan opinion is essential to the judgment and represents "concurre[nce] in the judgments on the narrowest grounds" withing the meaning of Marks, supra.

As a practical matter going forward, it may not matter. Chief Justice Roberts and Justices Thomas, Alito, Gorsuch and Kavanaugh are committed in principle to the major questions doctrine, so that may carry the day in any particular case.