I was not surprised by the three dissenters, as they seem to bow to Trump no matter what. But I was surprised by the other conservative rulings. Admittedly, I'm paying more attention now to the Supreme Court decisions than I did in prior years, and I always commend Gabe for staying objective when explaining things.
I say that because I wasn't aware of the details regarding Biden's push to cancel student debt. So I appreciated the facts being stated that Biden did the same thing that Trump is doing now and he was struck down. And that's all I'm asking for nowadays… For the law to be applied fairly to everyone and not in a partisan way.
That's why I read with interest the section where Gorsuch took the three liberal judges to task for allowing Biden to use that "power" but not allowing Trump. I never thought I'd say this, but I agree with a conservative viewpoint! The law has to be applied the same way to everyone.
I really do appreciate how much Gabe puts into these newsletters. It really does help me feel so much more informed.
Over on the Public Notice Substack this morning, we have Lisa Needham, a regular contributor, complaining that the conservative justices who subscribe to the major questions doctrine apply it selectively on policy-based grounds. They are not consistently pro-Congress. They are only pro-Congress when Congress has passed laws that conform to conservative policy priorities.
That is a major reason why Kagan embraces textualism but not the major questions doctrine. If the Democrats regain the majority next year, we will see how far the conservative justices will really carry major questions to the benefit of Congress.
In this case, the Supreme Court appears to be pro-constitution, in support of a coequal branch of government that Trump is doing his best to sideline. Congress declares war, not the president, absent an emergency. Going to war, or not, seems to me to be the most major question of all.
Trump is fighting an ersatz tariff war, where even penguins aren't safe.
Between Gabe and the WSJ editorial, there is no need to slog thru the actual opinions (although the sparring might be worth it.) The liberals views sounds like a throwback to the concept of the "living Constitution" with the administrative state elites dictating how one should live because the liberal justices just don’t have time. Kagan, at least, tries to give the view some legitimacy with a nod toward textualism. I hope the Major Questions Doctrine lasts. It makes sense, especially where the two parties are fielding Presidential candidates who cater to the ideological extremes and the Court is under duress from claims of partiality. You can tell this was a difficult case when two justices cite Black’s law dictionary and one mentions common sense. Go Congress!
I am sympathetic with Justice Jackson's concurring opinion, trying to revive the historic practice of looking to legislative history for help in construing an ambiguous statute. Scalia was so hostile to legislative history that all the would-be Scalia clones on the Court now treat it as basically irrelevant, but Jackson shows that legislative history of this statute supports the argument that the president cannot rely on it as an authority to impose tariffs.
I read on popular information, that “Section 122 of the Trade Act gives the president the authority to temporarily impose tariffs in response to “large and serious United States balance-of-payments deficits,” not trade deficits. The United States does not have a balance-of-payments deficit, much less a large and serious one.”
Would love to see your careful analysis on this Gabe.
Have read a number of summaries of the opinion, one which Trump has his own very well known opinion of, and yours ranks as about the best over all. Thank you.
Have appreciated Gorsuch since he arrived on the Court. His pairing with Ginsburg was totally unexpected, and his willingness to forge his own path, is very engaging.
Thanks, Gabe. I guess the fundamental point is I'm not sure the arguments that judges were and are acting in a partisan manner holds water if the underlying justification of the executive order in each case is different. (Although I'm sure it did have something to do with it.)
That’s fair. I certainly don’t think the two cases are identical, but I do think they have some pretty big similarities (a president citing a vague statute, and the existence of an emergency, to claim broad and novel powers despite votes by (non-veto-proof) majorities of Congress disapproving of the action) that are hard to ignore and raise serious questions for both the dissenting and concurring trios. (Esp since, for both trios, they just so happened to read the vagueness both times in ways that favored the party that appointed them!)
3 Books over last few months- Pauline Maier's - Ratification, The People Debate the Constitution, 1787-1789; Gordon S. Wood - The Creation of the American Republic 1776-1787; Richard Beeman- Plain, Honest Men, The Making of the American Constitution. These 3 books give one a great perspective on what the framers and the opposition were doing and thinking. For me it is nothing short of amazing, but Gorsuch's position is well grounded. Congress was clearly meant to be the main focus of the democracy, while a powerful executive office, as demonstrated by George Washington and A. Hamilton fleshed things out. I found it very interesting that John Marshall showed up in the debates in Virginia. So the judiciary, or the future of it, was directly involved. Gabe- thanks for the breakdown of the ruling.
Congress needs to pull things back a bit and don't forget - EVERYTHING we give to the Government - and every right is revokable by "We The People". What that looks like and how chaotic it could spin is also up to us. Some day, I hope level heads will again prevail. Where have you gone- Mike Mansfield and Everitt Dirksen?" :)
This is such a wonderful analysis of their positions. Gabe, I have a question: are you considering a book about the Supreme Court? I don't read many nonfiction books, but I would read this one!
Towards end of the article, when you mentioned potential litigation around the new Section 122 tarrifs, I'm wondering whether this will be one of the cases that SCOTUS might dodge. I say that because the president might be able to argue that balance-of-payment deficits are related to foreign policy(the same argument worked for three of the judges in this ruling).
I was not surprised by the three dissenters, as they seem to bow to Trump no matter what. But I was surprised by the other conservative rulings. Admittedly, I'm paying more attention now to the Supreme Court decisions than I did in prior years, and I always commend Gabe for staying objective when explaining things.
I say that because I wasn't aware of the details regarding Biden's push to cancel student debt. So I appreciated the facts being stated that Biden did the same thing that Trump is doing now and he was struck down. And that's all I'm asking for nowadays… For the law to be applied fairly to everyone and not in a partisan way.
That's why I read with interest the section where Gorsuch took the three liberal judges to task for allowing Biden to use that "power" but not allowing Trump. I never thought I'd say this, but I agree with a conservative viewpoint! The law has to be applied the same way to everyone.
I really do appreciate how much Gabe puts into these newsletters. It really does help me feel so much more informed.
Over on the Public Notice Substack this morning, we have Lisa Needham, a regular contributor, complaining that the conservative justices who subscribe to the major questions doctrine apply it selectively on policy-based grounds. They are not consistently pro-Congress. They are only pro-Congress when Congress has passed laws that conform to conservative policy priorities.
That is a major reason why Kagan embraces textualism but not the major questions doctrine. If the Democrats regain the majority next year, we will see how far the conservative justices will really carry major questions to the benefit of Congress.
In this case, the Supreme Court appears to be pro-constitution, in support of a coequal branch of government that Trump is doing his best to sideline. Congress declares war, not the president, absent an emergency. Going to war, or not, seems to me to be the most major question of all.
Trump is fighting an ersatz tariff war, where even penguins aren't safe.
Between Gabe and the WSJ editorial, there is no need to slog thru the actual opinions (although the sparring might be worth it.) The liberals views sounds like a throwback to the concept of the "living Constitution" with the administrative state elites dictating how one should live because the liberal justices just don’t have time. Kagan, at least, tries to give the view some legitimacy with a nod toward textualism. I hope the Major Questions Doctrine lasts. It makes sense, especially where the two parties are fielding Presidential candidates who cater to the ideological extremes and the Court is under duress from claims of partiality. You can tell this was a difficult case when two justices cite Black’s law dictionary and one mentions common sense. Go Congress!
I am sympathetic with Justice Jackson's concurring opinion, trying to revive the historic practice of looking to legislative history for help in construing an ambiguous statute. Scalia was so hostile to legislative history that all the would-be Scalia clones on the Court now treat it as basically irrelevant, but Jackson shows that legislative history of this statute supports the argument that the president cannot rely on it as an authority to impose tariffs.
Very very helpful work Gabe. Thank you so much.
I read on popular information, that “Section 122 of the Trade Act gives the president the authority to temporarily impose tariffs in response to “large and serious United States balance-of-payments deficits,” not trade deficits. The United States does not have a balance-of-payments deficit, much less a large and serious one.”
Would love to see your careful analysis on this Gabe.
Have read a number of summaries of the opinion, one which Trump has his own very well known opinion of, and yours ranks as about the best over all. Thank you.
Have appreciated Gorsuch since he arrived on the Court. His pairing with Ginsburg was totally unexpected, and his willingness to forge his own path, is very engaging.
Was Biden's student loan forgiveness executive order based on IEEPA?
Hi Scott, no - he used a law called the HEROES Act. A bit more about that law here: https://www.wakeuptopolitics.com/p/july-6-2023
Thanks, Gabe. I guess the fundamental point is I'm not sure the arguments that judges were and are acting in a partisan manner holds water if the underlying justification of the executive order in each case is different. (Although I'm sure it did have something to do with it.)
That’s fair. I certainly don’t think the two cases are identical, but I do think they have some pretty big similarities (a president citing a vague statute, and the existence of an emergency, to claim broad and novel powers despite votes by (non-veto-proof) majorities of Congress disapproving of the action) that are hard to ignore and raise serious questions for both the dissenting and concurring trios. (Esp since, for both trios, they just so happened to read the vagueness both times in ways that favored the party that appointed them!)
I just want to add that it's been great to have a civil discourse in the comments section on the internet 🙂 Thanks, Gabe!
3 Books over last few months- Pauline Maier's - Ratification, The People Debate the Constitution, 1787-1789; Gordon S. Wood - The Creation of the American Republic 1776-1787; Richard Beeman- Plain, Honest Men, The Making of the American Constitution. These 3 books give one a great perspective on what the framers and the opposition were doing and thinking. For me it is nothing short of amazing, but Gorsuch's position is well grounded. Congress was clearly meant to be the main focus of the democracy, while a powerful executive office, as demonstrated by George Washington and A. Hamilton fleshed things out. I found it very interesting that John Marshall showed up in the debates in Virginia. So the judiciary, or the future of it, was directly involved. Gabe- thanks for the breakdown of the ruling.
Congress needs to pull things back a bit and don't forget - EVERYTHING we give to the Government - and every right is revokable by "We The People". What that looks like and how chaotic it could spin is also up to us. Some day, I hope level heads will again prevail. Where have you gone- Mike Mansfield and Everitt Dirksen?" :)
Wow Gabe, this was just excellent!!
This is such a wonderful analysis of their positions. Gabe, I have a question: are you considering a book about the Supreme Court? I don't read many nonfiction books, but I would read this one!
Tender, soft citizens, so palsied by power,
Can we rally and march through Liberty's dark hour?
Freedom ain't free,
She takes work to be:
By shared sweat alone shall our Republic yet flower.
Fabulous analysis. Thanks.
Thanks for the article!
Towards end of the article, when you mentioned potential litigation around the new Section 122 tarrifs, I'm wondering whether this will be one of the cases that SCOTUS might dodge. I say that because the president might be able to argue that balance-of-payment deficits are related to foreign policy(the same argument worked for three of the judges in this ruling).
What do people think about this?
Do you read popular information? Here’s Judd’s response to these new tariffs that may help, and I’m hoping Gabe will throw his informed analysis into the ring on this one. https://popularinformation.substack.com/p/trumps-new-tariffs-are-just-as-illegal?r=dzorf&utm_medium=ios
Maybe the Supreme Court is signaling their birthright citizenship decision which would forever end birth tourism? Bring it.