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.
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!)
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.
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.
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.
Very very helpful work Gabe. Thank you so much.
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!)
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.
Maybe the Supreme Court is signaling their birthright citizenship decision which would forever end birth tourism? Bring it.
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.