"No Recipe for a Republic"

"[C]ontinual and permanent accretion of power in the hands of one man," stemming from broad readings of Congressional delegation to the Executive.

Another nicely crafted passage from Justice Gorsuch's concurrence today in the tariff case, further defending the "major questions doctrine"—the principle that "ambiguous language" in a statute shouldn't be seen as delegating "highly consequential power" to the Executive Branch, even if it can be read as delegating lessers power:

Another feature of our separation of powers makes the major questions doctrine especially salient. When a private agent oversteps, a principal may fix that problem prospectively by withdrawing the agent's authority. Under our Constitution, the remedy is not so simple. Once this Court reads a doubtful statute as granting the executive branch a given power, that power may prove almost impossible for Congress to retrieve. Any President keen on his own authority (and, again, what President isn't?) will have a strong incentive to veto legislation aimed at returning the power to Congress.

Perhaps Congress can use other tools, including its appropriation authority, to influence how the President exercises his new power. Maybe Congress can sometimes even leverage those tools to induce the President to withhold a veto.

But retrieving a lost power is no easy business in our constitutional order. And without doctrines like major questions, 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.

Comments

[JamesMarkels]

The Chief Justice's opinion: Trump doesn't have tariff powers under the IEEPA because of the major questions doctrine and a matter of straight statutory interpretation.

Kagan, Sotomayor, Jackson: We think it's just a matter of straight statutory interpretation.

Barrett: I think the major questions doctrine is basically statutory interpretation.

Kavanaugh, Thomas, Alito: The major questions doctrine doesn't apply here, and statutory interpretation should yield the opposite result.

Thomas: Congress can just sign away its power to the President.

Gorsuch: Except for the Chief, y'all are frickin' hypocrites.

[MollyGodiva]

Josh Marshall wrote today:
"Indeed, today’s decision is actually an indictment of the Court. These tariffs have been in effect for almost a year. They have upended whole sectors of the U.S. and global economies. The fact that a president can illegally exercise such powers for so long and with such great consequences for almost a year means we’re not living in a functional constitutional system. If the Constitution allows untrammeled and dictatorial powers for almost one year, massive dictator mulligans, then there is no Constitution."

[Stupid Government Tricks]

He, and you, are just noticing this, in a case which only took a year? Look at this case: https://www.scotusblog.com/2026/02/scotustoday-for-thursday-february-19/

Kid was caught driving a stolen car. Three years later, an appeals court ruled the cop had no probable cause to wonder why a car was backing up with a rear door open and broken glass.

The entire judicial system is soaked in slowness. And this one year case, including trial and appeal, gets his attention?

[Purple Martin]

With regard only to your point and not to the outcomes of either case, One of things is not like the other; both of these things are not the same. (Court of Sesame Street, circa 1970's.)

Your probable cause case, while important to those directly involved, is just one highly bounded instantiation of a broad topic already addressed by likely hundreds of court decisions, and which will be addressed by hundreds more in the future. On your main issue (justice delayed is justice denied I assume?) it's a single data point, invisible by itself, meaningful only as it's consolidated within other data categorizations. Its delayed resolution will have only an extremely attenuated impact (as one of millions of data points) on the larger questions involved and the future path of the American Experiment.

Josh Marshall is making his point in the context that this Tariff decision and last year's SCOTUS Presidential Immunity decision—both about Executive Power—are existential cases, meaningfully influencing the potential of America's continued existence as a constitutional, federated, democratic republic (and not to be overly dramatic, the future of Western Liberal Democracy).

So yes, Marshall's thesis is correct: even a one year delay in its resolution is meaningful in a way that even lengthier court delays are not. One of things is not like the other; both of these things are not the same.

[Stupid Government Tricks]

You can change the subject to your heart's content, but they do both indeed show the same systemic problem of a judicial system which moves too slowly to be called a justice system.