"Our Founders Understood That Men Are Not Angels, and We Disregard That Insight at Our Peril When …"

"we allow the few (or the one) to aggrandize their power based on loose or uncertain authority."

A nicely crafted passage from Justice Gorsuch's concurrence defending of 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 lesser power) in today's tariffs case. And here are the two following sentences:

We delude ourselves, too, if we think that power will accumulate safely and only in the hands of dispassionate "people … found in agencies." Even if unelected agency officials were uniquely immune to the desire for more power (an unserious assumption), they report to elected Presidents who can claim no such modesty.

Comments

[JoeFromtheBronx]

The modesty of the President is decreased much more by the wrong-minded removal opinions that Gorsuch supports.

The sentiment is fine if a bit of a platitude. Agencies have various checks, including judicial review. The debate is over the details.

[SRG2]

Nonetheless, Gorsuch's concurrence is very fine.

[JoeFromtheBronx]

It is prime Gorsuch. It has some nice quotable lines mixed (as Barrett and Kagan shows) with more dubious aspects.

[Martinned2]

Wouldn't it have been easier to simply hold that there is no emergency, instead of inventing a constitutional doctrine out of whole cloth?

[Bob from Ohio]

Every constitutional doctrine is invented out of whole cloth.

Strict scrutiny, intermediate scrutiny, rational basis are all invented. No text supports them.

Emergency aid and Exigent Circumstances exceptions to the 4th amendment too.

Many others.

Heck, stare decisis was invented at some point.

[Martinned]

Yes, but that’s doesn’t mean that inventing a new one is a good idea.

[ReaderY]

No. The Supreme Court’s strategy for dealing with Trump has consistently been to find a way to say he doesn’t have the legal power to do something without ever saying he is lying. If they said he was lying in declaring an emergency, that would represent a much greater degree of confrontation than the approach they took. It would be directly and personally criticizing the president and his actions, rather than merely standing off at a distance and neutrally saying the office lacks such and such a power.

In the current political climate, what the Court did is far less likely to provoke Trump into thinking the justices are out to get him and to start openly defying them than saying he lied about the existence of an emergency. This makes the opinion solely about Congress’ text, not about Mr. Trump’s statements and actions.

Sure, it’s probably not the way they’d do things under ideal circumstances, probably not with any other President. But under current conditions, it makes very sound psychological sense, is less likely to put Mr. Trump in a rage, and is more likely to preserve the Court’s relevance as an institution.

Which is in play here. And they know it.

[Martinned]

Trump already put in place a new 10% tariff. How is that non-confrontation working out?

[ReaderY]

Also, only 2 justices of the 6 in the majority, Roberts and Gorsuch, supported applying the major questions doctrine as any sort of new doctrine. Three would not have mentioned it at all. And one, Justice Barrett, wrote a concurrence saying the major questions doctrine was nothing new, just another name for same old same old, and didn’t actually mean anything.

[MaddogEngineer]

No, not unless you want to unravel all the other emergency powers in law. I don't think you actually want to do that.

Actually, I realize you do want to do that, just in the case at this time, a special one-off because Orange Man Bad. Then you will resume supporting this once a sympathetic president is in office, who will wield it in ways that you favor.

(Absent specific statutory definitions, not available here, the judiciary wielding the power to decide "emergencies" is as lawless and authoritarian as the president having it. Maybe more so, being they are not elected and have life tenure. But again, what people like you want. Unless of course it's Republican appointee dominated Supreme Court deciding, which by definition is illegitimate.)

[Martinned]

Those mind reading powers are great, or at least they would be if they weren’t broken. Every president, Republican, Democratic, or Trumpist, should be on a much, much shorter leash. And there is 20 years of VC comments of me saying so.

[Brett Bellmore]

The problem with that approach is that the statutory definition of "emergency" is usually, "the President says there's one, and Congress doesn't disagree."

[Martinned]

Time to bring out Liversidge v Anderson again:

I know of only one authority which might justify the suggested method of construction: “‘When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean, neither more nor less.’ ‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’ ‘The question is,’ said Humpty Dumpty, ‘which is to be master – that’s all.’” (“Through the Looking Glass,” c. vi.) After all this long discussion the question is whether the words “If a man has” can mean “If a man thinks he has.” I am of opinion that they cannot, and that the case should be decided accordingly.

It is the job of the courts to say what the law is, and that includes saying that there is no emergency. I think there are currently something like 30 declared emergencies in the US, some of them decades old, and every single one of them is bullshit.

Just because Congress doesn’t want to offend His Majesty The President and/or doesn’t want to cast a vote their constituents will dislike, doesn’t mean the courts should sign off on a bullshit interpretation of a statute.

[NvEric]

Small bump in the continuing path of Empire, an empire allowed and encouraged by both major parties with silence from the cowed population.

These seemingly fine words from Gorsuch are garbage. Garbage for there're old meaningless words from the distant past expelled to make one feel warm and fuzzy about their lost soul.

Revolution must continue where the People take their rightful place. Progress halted 250 years ago in this thing called Self-Government.