Let’s Talk Tariffs: A Closer Look At The SCOTUS Opinions

Turning from the big picture to the finer points, here are assorted observations about specific parts of the decisions.

Last Friday, the U.S. Supreme Court issued its long-awaited, eagerly anticipated decision in * Learning Resources, Inc. v. Trump*—aka the tariffs litigation. As I mentioned yesterday in

Judicial Notice, the ruling actually covered two consolidated cases,

Learning Resourcesand

Trump v. V.O.S. Selections, Inc.—and, funnily enough, the case that gave its name to this landmark precedent,

Learning Resources, got dismissed for lack of jurisdiction.

As I mentioned on the SCOTUSblog live blog, the Court handed down Learning Resources as I was boarding a plane, on my way home from a speaking engagement. This wound up being good timing: I downloaded the opinions and pored over them during my four-hour flight, giving them a closer read than usual (a much better way to pass the time than trying to work using United’s terrible Wi-Fi).

Now that we’ve had a few days to sit with Learning Resources—all 170 pages of it, spread out over seven separate opinions—let’s discuss. This is a Notice and Comment (N&C) post, so all readers can comment, not just paid subscribers.

This post assumes familiarity with the opinions. If you’re looking for a good summary of the decision or an overview of where the different justices came out on the various issues, this ain’t it; I refer you instead to Adam Feldman’s analysis for SCOTUSblog, Jack Goldsmith’s write-up at Executive Functions, or the many other commentaries that I mentioned yesterday in Judicial Notice or that Howard Bashman has been compiling over at How Appealing.

Here are my miscellaneous musings:

The nice thing about predictions is that nobody except you remembers when you’re wrong—but when you’re right, you can claim vindication. So allow me to claim vindication: in my post-argument

recap, I correctly predicted the 6-3 breakdown and the lineups of the justices. Chief Justice John Roberts wrote an opinion for the Court holding the tariffs unlawful, which was joined by Justices Sonia Sotomayor, Elena Kagan, Neil Gorsuch, Amy Coney Barrett, and Ketanji Brown Jackson. Justice Brett Kavanaugh wrote the principal dissent, which was joined by Justices Clarence Thomas and Samuel Alito.In that same post-argument analysis, I highlighted the “problematic tension” in the government case between denying the tariffs are revenue-raising while crowing about the revenue they’re raising. Chief Justice Roberts called this out in his opinion, noting that “the Government admits—indeed, boasts—the economic and political consequences of the IEEPA tariffs are astonishing.” (p. 11)

The Federal Circuit’s per curiam

opinionheld that the International Emergency Economic Powers Act (IEEPA) did not authorize these specific tariffs—i.e., “the tariffs imposed by the Executive Orders” challenged in this litigation. In a concurrence, Judge Tiffany Cunningham, joined by three colleagues, took a broader position: “we write separately to state our view that IEEPA does not authorize the President to imposeanytariffs” (emphasis added). The SCOTUS majority wound up siding with Judge Cunningham: “we hold that IEEPA does not authorize the President to impose tariffs”—full stop. (p. 20)The Roberts opinion, barely hitting the 21-page mark, was short and sweet. Chief Justice Roberts—while not as terse as his predecessor (and former boss), Chief Justice Rehnquist—kept it concise. This struck me as the right choice, for an opinion that Chief Justice Roberts knew would be read by an unusually high number of laypeople.

I’m guessing the Chief had this opinion ready quite some time ago—and might have been annoyed at the delay introduced by his colleagues and their 150 pages of additional writings (especially Justice Gorsuch’s 46-page concurrence). Considering the importance of the issue and how eagerly the opinion was awaited, would it have been wise for the Court to have issued a bottom-line ruling ASAP, with “opinions to follow”? Perhaps.

On the other hand, the justices punted on refunds, sending the issue back to the lower courts. It will probably take weeks or even months for anything to happen as a practical matter (as trade lawyers told Jeff John Roberts of

Fortune). So issuing a bottom-line ruling more quickly wouldn’t have changed anything immediately anyway.In addition to remedies, two other issues that the Chief’s opinion notably didn’t discuss were (1) whether a president’s declaration of an “emergency” under IEEPA is reviewable by courts, and (2) whether Trump can re-impose his tariffs under other authorities. (I’m not counting footnote 4, acknowledging that Justice Kavanaugh’s dissent raises this possibility, since it then goes on to state that “[w]e do not speculate on hypothetical cases not before us.” (p. 16))

I enjoyed Justice Gorsuch’s “I’ll take all comers” concurrence, in which he seemingly went after pretty much all of his colleagues. As a friend who’s a pro-wrestling fan quipped, “Gorsuch taking on everyone from the top rope!” Or see this tweet by Jacob Ben-David Linker, invoking

Seinfeld—which is why Sarah Isgur and David French ofAdvisory Opinions(AO) referred to the Gorsuch opinion as the “Festivus Concurrence.”If you (like me) agree with the AO slogan of “Congress, do your job,” you’ll love the last paragraph of the Gorsuch concurrence. I jotted down in my notes that it was “a paean to congressional power” (and subsequently saw that Catie Edmondson described it in pretty much the same way in

The New York Times).When the Court decided

Biden v. Nebraska, the student-loan forgiveness case, I fell in love with Justice Barrett’s famous concurrence about the major-questions doctrine (aka the “babysitter concurrence”). But Justice Gorsuch’s critique of the ACB view of MQD gave me… food for thought. After reading both the Gorsuch and Barrett concurrences inLearning Resources, I’m not sure where I stand.There was precious little humor in the 170 pages. One of the few laugh lines came—unsurprisingly—from Justice Kagan: “Justice Gorsuch claims not to understand [my view that ordinary statutory interpretation can dispose of this case], insisting that I now must be applying the major-questions doctrine, and his own version of it to boot. Given how strong his apparent desire for converts, I almost regret to inform him that I am not one.” (Almost.)

Justice Jackson wrote a concurrence trying to defend the use of legislative history in statutory interpretation, but her evidence was kinda “meh.” She might have had a point if, say, the legislative history involved a few individual members of Congress pushing for adding explicit “tax” or “tariff” language, then getting shot down—with members of the majority saying, “Of course ‘regulate importation’ doesn’t allow tariffs, and that’s the way we like it.”

What was up with Justice Thomas’s dissent, arguing that Congress can delegate huge swaths of authority to the president? I share Ilya Somin’s take in

The Atlantic(gift link): “Such a position would run roughshod over the text and original meaning of the Constitution, and create a dangerous form of near-monarchical presidential power.”Some CT dissents are important and prophetic, foreshadowing the future direction of the Court, while others are esoteric, even head-scratching—and this one was the latter. I also agree with Sarah Isgur’s comment on AO that Justice Gorsuch had a “killshot” against Justice Thomas’s concurrence: regardless of whether Congress

candelegate certain powers to the president, the issue here is whether Congressdiddelegate—and the best reading of IEEPA is that it did not.On the whole, I liked Justice Kavanaugh’s dissent; it was clear and well-written, and it caused me to conclude that this case was closer than I originally thought. But I was puzzled by two observations in the dissent, which struck me as neither here nor there: (1) suggesting that “the Court’s decision might not prevent Presidents from imposing most if not all of these same sorts of tariffs under other statutory authorities,” and (2) noting that “the refund process is likely to be a ‘mess.’” I suppose they could be justified as helpful to the many non-lawyers who Justice Kavanaugh knew would wind up reading the opinions, since they highlight the limits of the majority decision—but they don’t really advance the legal analysis.

Justice Kavanaugh frequently invoked the Federal Circuit dissent of Judge Richard Taranto—which I liked, as a rhetorical matter. Why? Judge Taranto, an Obama appointee, is hardly some MAGA judge—and the fact that he dissented in the Federal Circuit shows that the issues in this case, rather than being purely ideological, are ones that smart judges acting in good faith can disagree about.

So those are my random reflections. What are your thoughts? Please take my poll below, and please share your opinions in the comments of this N&C post. I look forward to engaging with your views.

Earlier: