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PaperclipPerfector  1mo ago (text post)   25598 thread views

Culture War Roundup for the week of February 16, 2026

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So the US Supreme Court struck down most (all?) of Trump's tariffs in a 6-3 ruling, ruling that its use exceeded the International Emergency Economic Powers Act. This appears to have largely been done under the major questions doctrine, the idea that if Congress wants to delegate the power to make decisions of vast economic or political significance, it must do so clearly. The majority ruling is that Trump's attempt to claim and leverage emergency powers overstepped this, plus doubtless other nuances I'm not noting. The Court also opened an entirely different set of worms, as it did not adjudicate if the tariff revenue that had been collected has to be refunded, or even who a refund would go to. I predict great long !lawyer bills~ debates over how, if tariffs are taxes on Americans, which Americans are owed the tax refunds.

(Do I predict the Trump administration will try to use this as a basis to give money to the electorate in a totally-not-buying-votes-before-mid-terms scheme? No, but I think it would be funny if political bedfellows put Democrats on the side of big business importers who will make claims on the refunds even if they passed on costs to American consumers.)

Trump will reportedly make comments soon. While this will be a major policy loss for the Trump administration, and promises to make the next many months 'interesting,' part of my curiosity is what this ruling might hold (or have held) for other court cases in the dockets, there will also be significant geopolitical reflections on this for months and years to come. This ruling wasn't entirely a surprise, and various countries (and the European trade block) had been hedging in part to let the court case play out. We'll see where things go from here, particularly since not all Trump tariff threats were derived from the IEEPA, and so there will probably be some conflation/confusion/ambiguity over various issues.

While I will defer to others for the legalese analysis, I am also interested in what sorts of quid-pro-quos the internal court politics might have had for Roberts to have led the majority here. There are a host of cases on the docket this term, with politically-relevant issues ranging from mail-in ballots to redistricting. While I think the tariffs case was outside any typical 'we accept this case in exchange for accepting that case' deal over which cases get heard, I will be interested if the administration gets any 'surprise' wins.

For longer commentary from Amy Howe of the SCOTUS Blog-

In a major ruling on presidential power, the Supreme Court on Friday struck down the sweeping tariffs that President Donald Trump imposed in a series of executive orders. By a vote of 6-3, the justices ruled that the tariffs exceed the powers given to the president by Congress under a 1977 law providing him the authority to regulate commerce during national emergencies created by foreign threats.

The court did not weigh in, however, on whether or how the federal government should provide refunds to the importers who have paid the tariffs, estimated in 2025 at more than $200 billion.

The law at the center of the case is the International Emergency Economic Powers Act, known as IEEPA, which authorizes the president to use the law “to deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States, if the president declares a national emergency with respect to such threat.” A separate provision of the law provides that when there is a national emergency, the president may “regulate … importation or exportation” of “property in which any foreign country or a national thereof has any interest.”

The dispute at the center of Friday’s opinion began last year, when Trump issued a series of executive orders imposing the tariffs. Lawsuits filed by small businesses and a group of states, all of which say that they are affected by the increased tariffs, were filed in the lower courts, which agreed with the challengers that IEEPA did not authorize Trump’s tariffs. But those rulings were put on hold, allowing the government to continue to collect the tariffs while the Supreme Court proceedings moved forward.

In a splintered decision on Friday, the Supreme Court agreed with the challengers that IEEPA did not give Trump the power to impose the tariffs. “Based on two words separated by 16 others in … IEEPA—‘regulate’ and ‘importation’—the President asserts the independent power to impose tariffs on imports from any country, of any product, at any rate, for any amount of time,” Chief Justice John Roberts wrote. “Those words,” he continued, “cannot bear such weight.” “IEEPA,” Roberts added, “contains no reference to tariffs or duties.” Moreover, “until now no President has read IEEPA to confer such power.”

In a part of the opinion joined by Justice Neil Gorsuch and Justice Amy Coney Barrett, Roberts said that Trump’s reliance on IEEPA to impose the tariffs violated the “major questions” doctrine – the idea that if Congress wants to delegate the power to make decisions of vast economic or political significance, it must do so clearly. “When Congress has delegated its tariff powers,” Roberts said, “it has done so in explicit terms, and subject to strict limits,” a test that Trump’s tariffs failed here.

The court’s three Democratic appointees – Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson – joined another part of the Roberts opinion, holding that Trump’s tariffs were also not supported by the text of IEEPA. “The U.S. Code,” Roberts noted, “is replete with statutes granting the Executive the authority to ‘regulate’ someone or something. Yet the Government cannot identify any statute in which the power to regulate includes the power to tax.”

Justice Brett Kavanaugh wrote the main dissent, which was joined by Justices Clarence Thomas and Samuel Alito. In his view, Trump had the authority under IEEPA to impose the tariffs because they “are a traditional and common tool to regulate importation.” Moreover, he suggested, although “I firmly disagree with the Court’s holding today, the decision might not substantially constrain a President’s ability to order tariffs going forward … because numerous other federal statutes authorize the President to impose tariffs and might justify most (if not all) of the tariffs at issue in this case.”

Kavanaugh also warned that “[i]n the meantime, however, the interim effects of the Court’s decision could be substantial. The United States may be required to refund billions of dollars to importers who paid the IEEPA tariffs, even though some importers may have already passed on costs to consumers or others.”

(And apologies to @Gillitrut, who posted while I was drafting this.)

the Government cannot identify any statute in which the power to regulate includes the power to tax.

To tax is to regulate and to regulate is to tax, in free market economies.

A functioning Congress is only possible if the senate filibuster is overturned. 51 votes must be able to pass any constitutional law.

More and more people say this. It use to be considered a very necessary check and balance. Now it’s basically made things ungovernable except thru a strong Presidency with the court in your pocket which Trump almost has but not 100%.

I don’t see an issue with the GOP getting rid of the filibuster. They really should never lose the Senate for a generation if they are doing things with some competency.

As it works now it basically means congress never has to do a hard vote.

Well, a tool used in the wrong place and time breaks things. At best a lot of the checks and balances were conceived as “stop horrible thing from happening,” and were meant to be used judiciously and only to stop seriously bad things from happening. Now, basically, no bills can pass unless they beat the filibuster, and since congress is pretty evenly split, most bills don’t meet the standard.

If either party was doing things with some competency the country wouldn't be in this mess.

I'm pretty sure one reason why they keep the filibuster around is that it's a great way to keep votes from happening that they don't want without everyone having to tip their hand and vote against.

Discourse around politics love to treat idealogies as a hivemind but the reality is that there's a lot of disagreement between people who are otherwise allied with each other. Even without the filibuster why should we expect a Trump tariff bill to pass? Democrats are opposed to Trump having more power and (this might be shocking to some youth who have only experienced Trump) many Republicans are still capitalists and free traders who believe in free trade and free markets.

So if you have the filibuster then you can just have the few known for crossing the lines take the fall and defect away from the president while you get to still vote for the tariffs you don't actually like or want and not draw his ire. There are even multiple examples of senators/house representatives doing a similar reverse style strategy that if you already have enough votes to pass then you can be one of the "good ones" and follow the party line even if you don't support it.

Opponents of the tariffs technically won both votes, thanks to a small faction of Republicans who broke ranks. But the margins were so thin that a presidential veto seems inevitable and likely insurmountable.

There are more opponents of Trump's tariffs than just the people who broke ranks, but just like Rep McClintock they had no reason to take aggro when the votes were already there to win. Reason calls it cowardly, I agree but I think it's a rather reasonable cowardness.

It lets politicians have their cake and eat it too. They don't have to push through things they don't actually agree with while also not having to upset the base (or increasingly the child president) by getting to say "nothing we can do". Signal your loyalty without having to sacrifice your beliefsOnly drawback is that it's harder to do the stuff they do like, but it's a cost they've accepted.

I'm not sure this reasoning works; tariffs were actually in place for more than a year. Are you, hypothetical republican senator that doesn't want tariffs but also doesn't want to offend Trump or his loyalists, satisfied with how things played out? You get to preserve the appearance of loyalty... but you also get tariffs. How would you be worse off if you held your nose and voted for tariffs if you get them either way? Or if tariffs are truly unacceptable to you, wouldn't you want to be able to vote them down?

I can maybe see a way to thread this needle -- the tariffs were eventually struck down, after all... only to be immediately replaced with 'new' tariffs under a different legal theory. Theoretically this one has a time limit, but who at this point believes such technicalities will stop Trump from doing whatever he wants? He'll just come up with some other excuse.

And, actually, this way you get the worst of both worlds; if the tariffs stood, you'd at least get the revenue. This way you get all the economic damage -- the true harm done by tariffs is in the transactions that don't take place, not in the ones that do -- and a $200 billion hole in the budget. And it's not even as though consumers will be made whole. Refunds will go to the people who filed the paperwork, because that's easy, and not to the people who actually bore the incidence of the tax, which has essentially no relation to those accounting details.

I think the actual reason the Senate doesn't want to govern is simpler and more cynical: if voters can't recall a single thing their senator did, they re-elect them. With a baseline 90%+ incumbent re-election rate, there's just nothing to be gained by rocking the boat. (That is, if maintaining their position is the only thing they care about, which is a model I've been given little reason to doubt.)

My naive take was that it's almost impossible for the game of partisan tit for tat to not end with the filibuster gone.

But the Senate has been resistant to going all the way despite Trump suggesting it. I suppose their desire to matter outweighs their desire to stick it to the other team.

The senate has a different dynamic driven by very, very long terms of service. Eventually, yes, they'll yeet the filibuster in a fit of partisan shitflinging- but there just hasn't been enough turnover. I suspect the democrat optimates will come to regret it, but eh, it's gonna go.

ROBERTS, C. J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II–A–1, and II–B, in which SOTOMAYOR, KAGAN, GORSUCH, BARRETT, and JACKSON, JJ., joined, and an opinion with respect to Parts II–A–2 and III, in which GORSUCH and BARRETT, JJ., joined. GORSUCH, J., and BARRETT, J., filed concurring opinions. KAGAN, J., filed an opinion concurring in part and concurring in the judgment, in which SOTOMAYOR and JACKSON, JJ., joined. JACKSON, J., filed an opinion concurring in part and concurring in the judgment. THOMAS, J., filed a dissenting opinion. KAVANAUGH, J., filed a dissenting opinion, in which THOMAS and ALITO, JJ., joined.

If you ever see an opinion announcement like that, you are about to read some grade-A incomprehensible giberish. I didn't even bother reading the opinion after that. Good luck to the lawyers of the future tasked with figuring out which parts are holdings and which parts are dicta.

I don't know why the court even bothers issuing these kinds of rulings. Fractured opinions are always worse than useless, sowing confusion and wasting everyone's time. Better to GVR and at least not fuck up the precedent any more than you have to.

looks like something that costs $1000/hour to read

I, II-A-1, and II-B are holdings. The only major difference was that the conservatives in the majority invoked the Major Question Doctrine and the liberals thought the statutory language was sufficient. The upshot is that the president can't unilaterally invoke tariffs under the Act.

Eh, it's pretty simple. The 6 in the majority only really disagreed about whether the result is reached by MJD (R,G,B) or by regular statutory construction (S,K,J).

Gorsuch's concurrence doesn't add more except to call out both the dissenters and the liberal wing for their hypocrisy, and especially to roast Thomas.

Hardly incomprehensible, but I totally agree that there isn't now a clear marker of whether future arguments that hinge on MJD will stand or not.

Gorsuch's concurrence doesn't add more except to call out both the dissenters and the liberal wing for their hypocrisy, and especially to roast Thomas.

I think Gorsuch's concurrence is going to be the most-cited part of this case going forward simply because he finally takes the court to task for the MQD and actually engages with it in a meaningful and internally consistent way. At the very least it's going to spawn a decade of law review articles.

The across the board tariffs are back already, under Section 122 of the Trade Act of 1974. And the per-country tariffs are on their way back. Trump really has learned from his opposition. Just drag out unfavorable decisions, then make a small change and start the process all over again.

This would still leave him with having to pay back some 200 billion dollars, I think.

And nobody would assume that SCOTUS would let get Trump away with his next harebrained tariff scheme, so the money companies pay in tariffs might just be considered a credit extended to the US.

This would still leave him with having to pay back some 200 billion dollars, I think.

No, since SCOTUS didn't say the money had to be refunded, that'll be ANOTHER court case. And he'll probably claim the new tariffs are retroactive, which will be yet another case.

And nobody would assume that SCOTUS would let get Trump away with his next harebrained tariff scheme

All commentators seem to agree the Section 122 tariffs are on solid ground for at least 150 days. After that, Congress has to approve to renew... but Trump could just declare another emergency if they're not, and if anyone objects... well, it's ANOTHER court case.

It's the Star Wars meme.

Now that the Supreme Court got rid of the tariffs, the prices are going to go down!

...the prices are going to go down, right?

It would be... silly to assume that these situations weren't gamed out WELL in advance.

It wouldn't even require coordinating with any of the Justices. Just have three backup plans ready to go, open the appropriate box based on what the decision says.

An LLM could write up a viable alternative with <10 minutes of prompting too, once fed the opinion.

Welcome to the future, kids.

Actually that hits on another thing that's been nagging at me.

I don't think our Justice system is AT ALLLLLLLLLL prepared for handling a deluge of litigation fueled by savvy (key point) attorneys who use LLMs to craft aggressive motions, and draft clever briefs in support, and then if they lose on appeal, find gaps in the decision to keep on doing the thing they wanted to do, but with a different underlying justification.

Supreme Court took a year to make one ruling on the Tariff issue. The Administration hops through the gaps left in said decision. If it takes another year for any other case to reach them, the Admin will presumably hop through the gaps in the next decision too.

I will bring up an old suggestion I've made before: Train up 9 LLMs on the writings of the most famous SCOTUS Justices in our history, selecting for some ideological diversity... then let them rule on cases.

It is unclear to me how the existence of LLMs creates or exacerbates this problem when,

a) the current amount of legal writing vastly exceeds the amount which will ever be appealed, and probably exceeds by one hundredfold the amount which will ever reach the Supreme Court

b) lawyers already have a tremendous amount of incentive to find and close/open gaps in arguments or decisions, and draft clever briefs

c) there is an upper limit to how clever or insightful a slurry of writing can be, given that it still has to be relatable to the people reading it (unless you're venturing far into Sapir-Whorf theory) and grounded in their ideas or principles. I am not skeptical that in (3/5/10/40) years a good LLM or similar machine will be able to, for example, take 20 terabytes of code or data and do brilliant and useful and efficient things to it - but I don't think there are 25 legitimate and continually-deepening modes of analyzing the effect the 1973 fisheries act has on some relevant constitutional or administrative law/principle that would require responses by the SC.

the current amount of legal writing vastly exceeds the amount which will ever be appealed, and probably exceeds by one hundredfold the amount which will ever reach the Supreme Court

Yes, this is why SCOTUS has a ton of informal and formal criteria for selecting which cases are worth their time to hear.

But it seems obvious to me that there was a hard bottleneck on how quickly litigants can react to new caselaw and that Courts intentionally avoid making drastic rulings that cause sweeping changes so any given court decision is going to have gaps in it which they will likewise be slow to 'plug.'

I suspect now its as easy as "read this Appellate decision and find me six possible loopholes or procedural methods to delay its implementation to achieve my client's goals, make sure to check the entire corpus of Law Journal Articles for creative arguments or possible alternative interpretations of existing law. Make no mistakes."

(and I'm leaving aside the issue of JUDGES using LLMs to find and create bases for favorable rulings)

There gonna start just one strike your out disbarment for LLM usage they really don’t have a choice for a lot of reasons

I could imagine adding CivPro rules that discourage wanton LLM use. I don't see how they effectively enforce them.

hallucination appears in your brief = disbarment

I suspect now its as easy as "read this Appellate decision and find me six possible loopholes or procedural methods to delay its implementation to achieve my client's goals, make sure to check the entire corpus of Law Journal Articles for creative arguments or possible alternative interpretations of existing law. Make no mistakes."

I don't know that this is a big improvement over Westlaw, at the societal level. At the level of an individual lawyer, maybe, but bigshot appellate firms have a lot of legal hours to noodle on these problems and clients who will pay for those hours.

And my impression is litigants react to changes in caselaw very quickly. If SCOTUS makes a major decision, interested litigators will move very rapidly to bring cases under that new decision. Look at how many shots gun rights groups have taken at SCOTUS recently.

If SCOTUS makes a major decision, interested litigators will move very rapidly to bring cases under that new decision. Look at how many shots gun rights groups have taken at SCOTUS recently.

I don't disagree with this overall, but I want to make it clear that I think they'll be even faster.

Bruen was handed down in 2022 and it took a couple years for states to get really creative rules and rulings on the books... and of course SCOTUS has been agonizingly slow to address these matters.

I'm suggesting that in this new world, SCOTUS could hand down a decision, and by the next week various state legislatures could be passing bills that are competently written specifically to thwart/loophole those decisions.

So my definition of "reacts very quickly" assumes speedier action due to LLM assistance.

I'm suggesting that in this new world, SCOTUS could hand down a decision, and by the next week various state legislatures could be passing bills that are competently written specifically to thwart/loophole those decisions.

Are you sure this hasn't already happened? Trigger laws already exist, which accomplish the same thing in substance.

Either way, it seems to me that the bottleneck now is mostly the legislative schedule and the court's hearing schedule. If legislatures and courts use LLMs to speed things up (far-out now but not impossible), I could see real gains being made to the speed there the entire cycle.

I guess the logical end-point of this is multi-agent negotiation between the LLM representatives of the state, the legislature, the courts, and various interest groups, all negotiating, passing, and striking down new laws millions of times a year. Humans might not notice this, of course, since at this point the laws might mostly bind the LLMs...

(Hope this isn't a repost, looks like my first comment got eaten by the cyber gremlins!)

More comments

In a society as litigious as the US, the slowness of the courts is effectively an Omnicausal problem at this point. Not just in taking a year to decide on tariffs for the SC, but even state and local courts are swamped.

Why do more than 95% of criminal cases end up in plea bargains? Because the court simply can not handle actually taking them to trial unless you wanted a trial set long after everyone involved is dead. And plea bargains suck, they punish innocents (who can't afford to wait the absurd amount of time for an actual trial) and let guilty criminals get away with lesser punishments (because the terms have to be really generous compared to what a trial sentence may end up in). Seriously look at almost any case where someone got off absurdly light for a crime and you'll also notice that they almost always pled guilty in it because again, over 95% of criminal cases end in a plea bargain of some kind.

The clogging up of immigration courts is one major part of the crisis we had, asylum applicants could take years an average of four for a case to be resolved. Keeping them locked up for that whole time is wasteful and inhumane, but letting them out creates an obvious exploit.

How about other issues like say, a landlord wanting to evict a bad tenant? A hearing in some of the busier counties could take you a few months. Want to build an energy transmission line? Have fun spending more than a decade on various legal challenges. You might be a parent unable to see your child for more than a year because of custody disputes being unsettled.

This ain't just a US problem either, Canada and the UK apparently have it even worse with the backlogs in some areas. It didn't use to be this bad so clearly it's possible for a functional court system to actually go at a timely manner, but it's hard to pinpoint exactly what is causing this issue and how to fix it.

IANAL but it seems to me that a big part of the problem comes from common law resting on case law and therefore requiring that complex cases are ground out to a satisfactory conclusion. There seems to be no concept of ‘it would take a year to solve this complex case and all the claims and counter claims but you’ve got a week so do whatever you can’.

Also it feels that the nature of case law means that over any reasonable amount of time there will naturally be erosion of the original intent.

Which due to sheer population, judge polarization and information sharing circa today is going faster and faster

It could genuinely be fixed (in the short term) by spending a LOT more money on the court system to get competent judges, clerks, assistants to process cases in a timely fashion, update systems to modern tech to increase throughput, and Marshall necessary resources to enforce the court's rulings too.

But Courts are inherently a cost center for any government. Indeed, in Florida, the statutory trend is to draft laws to discourage litigation at every turn. Requiring extra procedural hoops before filing is permitted, forcing pre-suit negotiations or even mediation, and now they're starting to restrict the ability to collect attorney's fees.

No government that I know of actively expands its judicial resources to scale with its economy or population.

There are some issues that have to funnel through the courts (Probate, the disposition of a dead person's stuff, being one of them), but beyond that, in their function as dispute resolver can still 'work' by making the process as ardurous and unpleasant as necessary for the parties to consider cooperation the strictly superior option.

My REAL suspicion is that AI will get good enough at predicting case outcomes that it will discourage active litigation/encourage quick settlements, as you can go to Claude, Grok, and Gemini and feed it all the facts and evidence and it can spit out "75% chance of favorable verdict, likely awards range from $150,000 to $300,000, and it will probably take 19-24 months to reach trial."

And if the other party finds this credible, the incentive for solving things cooperatively become obvious.

Didn't the Qing make a law that reporting a crime to the police, where the accused was found not guilty, would be punished more severely than the actual crime, so as to discourage undue involvement of the legal system in people's affairs? Or am I remembering wrong?

I don't know that LLMs really could add much since any lawyer would be able to give you a ballpark on likelihood of success and the award range. The thing with civil litigation is that discovery can take time, and high value cases with good evidence will always be given priority. For the trial docket I work off of, a case can go from filing to trial in under a year, and most cases don't take much longer. And this is a relatively complex type of litigation where that's already pushing it as far as having enough time to develop the case is concerned. But cases that are if lower value or have evidentiary issues can take a decade to resolve, not through any fault of the court but because the attorney responsible isn't motivated to list them for trial until the ducks are all in a row.

not through any fault of the court but because the attorney responsible isn't motivated to list them for trial until the ducks are all in a row

I mean, I'd just point out that this answers your initial thought:

I don't know that LLMs really could add much since any lawyer would be able to give you a ballpark on likelihood of success and the award range.

Any lawyer can give you the ballpark, but the LLM now makes it 'viable' to file and prosecute a suit as long as it is expected to be barely EV positive.

The cost of getting 'all ducks in a row' should go down substantially.

By getting all your ducks in a row I'm not referring to anything that an LLM can accomplish. I'm referring to things like making sure you have witnesses lined up for deposition and things of that nature, since you don't want to wait until the start of discovery before looking for them. This is mostly and issue in wrongful death cases, where you can't just depose the plaintiff to get the evidence and often need to track down third parties. Whether or not you can get a case off the trial list after discovery closes depends on the custom of the attorneys in the area in which you're practicing. There's one firm I deal with a lot that has a habit of listing cases they don't do anything with and having them removed (some trial terms my caseload is disproportionately made up of these perennials that never seem to go off, including one from 2013 with a crazy plaintiff who refuses to settle anything and whose attorney keeps listing it and removing it to keep the guy happy, or so I assume); I never oppose these motions, because I (and my clients) prefer to maintain a good working relationship with the firm over forcing the issue to get a single case dismissed. Other practice areas aren't so cordial and laid back, and plaintiff's attorneys aren't going to list cases unless they're sure they'll actually go off.

My REAL suspicion is that AI will get good enough at predicting case outcomes that it will discourage active litigation/encourage quick settlements, as you can go to Claude, Grok, and Gemini and feed it all the facts and evidence and it can spit out "75% chance of favorable verdict, likely awards range from $150,000 to $300,000, and it will probably take 19-24 months to reach trial."

As I understand it a lot of commercial / divorce / etc outcomes are already predictable and it doesn’t make people less litigious.

SORT OF.

In the more emotionally-driven areas (so yeah, outside of commercial), like divorce and contested probate, sometimes people genuinely just want to inflict the process as a punishment on the other side... and sometimes emotions flip and what looked like a surefire drawn-out fight gets resolved in a weekend.

Lawyers are still bound to do what their clients want, after all. But if a lawyer can pull up their AI Case Analyzer and say "Look, its not just my opinion, the Computer is telling you that even if we drag this out for two years your best outcome is an additional 10-15k over the offer that's on the table now" maybe we avoid some conflict.

(one can hope that clients can see reason, this might be a fool's bet)

It will be interesting to see if people view the LLM as more authoritative, though. Lawyers will take losing cases if they are going to be paid for them.

Especially at the smaller scale where there's a ton of emotive considerations and people are infrequently engaged with the legal system.

I don't think justice systems in general are ready for this. Indeed, they're already vulnerable to this now, and they depend on other social institutions to carry out their will (just as they always have done- courts don't actually have legions).

That said, what prejudice (and the dismissal thereupon) is also happens to be defined by the court. As is who even takes appeals.

[At least it's an argument for having fewer laws- but then, that might not be advantageous since "just ban everything and never hear any appeals because fuck you lolol" is already what happens most of the time in 2A cases and doesn't even require dismissing cases like that.]

Another win for the free market, another win for the free people.

Kavanaugh also warned that “[i]n the meantime, however, the interim effects of the Court’s decision could be substantial. The United States may be required to refund billions of dollars to importers who paid the IEEPA tariffs, even though some importers may have already passed on costs to consumers or others.”

I seem to recall the argument for why they didn't need to grant a stay on the tariffs was that resolving them after would be easy. (Edit, yes they did claim this and they were very certain about it too) Did something change in the meantime or was that claim a lie? But even more so the argument doesn't make much sense to begin with "they shouldn't have to return stolen money because it would be difficult" just encourages stealing more money.

There is a simple solution to this, President Trump could try to get his tariff agenda passed in Congress. Unfortunately for him we all know this won't happen in part because many of his fellow Republicans don't support it and won't put their name to a pro tariff bill because the people do not want it

This is a win for American democracy, where a single election does not give full permission for every unpopular idiosyncracy and niche policy a politician wants. They must convince the others. A point that justice Gorsuch makes himself

President Trump could try to get his tariff agenda passed in Congress.

Even if unnecessary legally, this would be preferable because it would curb the enthusiasm of other governments to try to wait it out for a few years.

This is a win for American democracy

Really more of a win for checks and balances on democracy. These tariffs are a perfect example of how democracy run amok can be destructive. Having the supreme court in place can save the people from their own bad decisions.

I seem to recall the argument for why they didn't need to grant a stay on the tariffs was that resolving them after would be easy. Did something change in the meantime or was that claim a lie? But even more so the argument doesn't make much sense to begin with "they shouldn't have to return stolen money because it would be difficult" just encourages stealing more money.

Not having stopped this with a temporary injunction is a total fuckup on the SCOTUS part.

And of course any tariffs paid will have to be paid back, but the damage to the economy is already done.

There is a simple solution to this, President Trump could try to get his tariff agenda passed in Congress.

Of course, even that would not save him from having to pay back the tariffs people already paid, because anything else would be retroactive.

Of course, even that would not save him from having to pay back the tariffs people already paid, because anything else would be retroactive.

Theres no rule against retroactive tariffs and taxes, only retroactive criminal law.

Okay, not a constitutional rule.

But I suppose it might actually be against WTO rules.

Basically, any country which makes use of retroactive tariffs is not someone you would want to do business with. Nothing stopping them from nationalizing your company by retroactively applying a 500% tariff on all of the goods you have been importing in the last decade. This would not be much better or worse than just deciding to nationalize your company outright. Investors and creditors tend to hate such things.

Now, in this particular case, the retroactive tariffs would merely replace the unconstitutional ones. So one might frame it as "dear Mr foreigner, we had a minor judicial hiccup with the precise process of how to enact the tariffs, but don't worry, the amount on your bill is still correct".

Of course, the situation might be more accurately described as a chief of police deciding that local shops will need to pay for protection, and when a court says that this is not actually how things work, the city council instead tries to reframe the protection money as taxes so that they can keep it.

But if Congress will not authorize Trump's tariffs (which I believe and hope they won't), then all of that is moot.

A good indicator would be what a claim against the US gov for bogus tariffs is worth on the market at the moment, but it seems that these are not publically traded.

Sure in general. In this case where a retroactive tariff is merely enforcing an original tariff that was rescinded for technical legal reason seems different.

Basically, any country which makes use of retroactive tariffs is not someone you would want to do business with. Nothing stopping them from nationalizing your company by retroactively applying a 500% tariff on all of the goods you have been importing in the last decade.

And yet companies keep doing business with countries which are known to outright nationalize companies. It would be nice if doing shit like that had the high cost you might expect, but they don't.

Especially in the case where the retroactive change is meant to fix an issue with an existing tax. See https://www.law.cornell.edu/supremecourt/text/512/26

a win for American democracy

And specifically an advantage of it over Westminster systems, where the Executive is just the party with the most votes in the Legislature (even if a minority government) and actually have the power to impose retaliatory tariffs at the snap of their fingers.

I don't think a parliamentary system would typically find itself in this particular mess, where the executive wants to do something that he could not possibly find the votes for in the legislature.

That still often requires some amount of buy-in within the coalition (or additional support from outside when people within disagree) instead of just a single person getting to impose their personal will on every policy.

Another win for the free market, another win for the free people.

Another moment of absolute chaos, in which half-assed policies make it basically impossible for the hypothetical manufacturer looking to plan to produce goods in America to plan ahead and invest.

Luckily things are looking to be a bit more stable now at least. Admins typically put their best foot forward legally speaking so this one getting struck down greatly increases the likelyhood of other tariff arguments in the same manner, which we can assume are weaker than the best foot forward, getting struck too.

Trump might be able to find a more watered down version that does work, the same way Biden found a watered down form of student loan forgiveness but just the same it'll be watered down.

Speaking of chaos though, the admin is definitely going to try to make refunds a mess. And unfortunately even if they do it properly many Americans may now end up effectively double taxed due to paying tariff surcharges passed on by the importers and paying the refunds back for the illegal tariffs to those same importers. A lot of it going to Howard Lutnick's son whose firm has been buying up tariff refund privileges in exchange for immediate cash to handle the additional costs his father's actions helped cause!

Luckily things are looking to be a bit more stable now at least.

Not bloody likely. Trump is going to threaten to put tariffs on again, making very unclear when things will be settled.

Relatively more stable, at least until he starts arguing that him not liking someone's tone of voice is also a national security issue needing tariffs IG. But point being now that businesses can expect the more obviously BS tariffs to be struck down (even if it takes a while) it allows for a little bit more predictability.

Still absurdly chaotic, but 80 chaos is better than 100 chaos.

The Court also opened an entirely different set of worms, as it did not adjudicate if the tariff revenue that had been collected has to be refunded, or even who a refund would go to. I predict great long !lawyer bills~ debates over how, if tariffs are taxes on Americans, which Americans are owed the tax refunds.

I feel like the only practicable way to do this is to pay refunds to the people who paid the tariffs to the government. In some sense increased costs to consumers were caused by the tariffs but good luck proving that to a court (absent some kind of contractual provision for the scenario).

While I will defer to others for the legalese analysis, I am also interested in what sorts of quid-pro-quos the internal court politics might have had for Roberts to have led the majority here. There are a host of cases on the docket this term, with politically-relevant issues ranging from mail-in ballots to redistricting. While I think the tariffs case was outside any typical 'we accept this case in exchange for accepting that case' deal over which cases get heard, I will be interested if the administration gets any 'surprise' wins.

In terms of decision authorship the general process is that:

1. If the Chief Justice is in the majority, they decide who authors the opinion of the court.

2. If the Chief Justice is not in the majority, the most senior justice in the majority decides.

I think the justices try to maintain roughly even ratios of opinion authorship so maybe Roberts authoring this one meant foregoing authoring some other one but ultimately he's the one in control over who authors an opinion he's in the majority of. I am skeptical there was any horse trading involved to get to 6 votes either. Gorsuch's concurrence has a length section where he disagrees with the dissent's analysis, which would be enough for 5.

I feel like the only practicable way to do this is to pay refunds to the people who paid the tariffs to the government. In some sense increased costs to consumers were caused by the tariffs but good luck proving that to a court (absent some kind of contractual provision for the scenario).

This is such a nightmare to me, because the company-I-work-for's customers absolutely would expect for me to refund the tariff back to them in return, and that's going to be a full time role to calculate and disburse those funds.

Like most Supreme Court rulings, I think this is entirely correct. I don't have anything against the concept of tariffs per se, but this nonsense about using the Executive to go around the Legislative needs to stop. Congress is supposed to govern, not shrug and let the President do whatever he wants (without even specifically authorizing him to do so).

Ubi enim senatus? For where is the Senate? Now empty… America burns.

Rather pointless to complain about what the legislative branch “should” be doing. If’s a dead body. The country is ruled by the President, the Courts, and the Oligarchy. The legislative branch is irrelevant.

This is the fact of how America functions in practice. I don’t really take the text of the ruling seriously at all. The Justices who struck down the tariffs did so because they thought they were a bad policy, and those who dissented thought they were a good policy.

Worse than that - Kavanaugh (definitely) and Alito/Thomas/Sotomayor/Kagan/Jackson (probably) didn't even vote based on their view of the policy merits of the tariffs - they voted based on their partisan attitude to the President who imposed them.

We can't tell whether Roberts/Gorsuch/Barrett votes based on the law or their policy preferences because both their view on the law and their view on the policy are consistent, being downstream of their establishment libertarianish worldview. Their opinion has the advantage of being short and obviously correct - if you think the Major Questions Doctrine exists at all, this is an easy MQD case.

The Kav dissent is right about one thing - given this President and this Congress, the practical consequences of the decision are going to be that the clownshow gets worse.

Gorsuch calling out everyone except himself and Roberts for hypocrisy on the MQD is also obviously correct and great fun to read, but probably bad judicial behaviour. The Barrett (arguing with Gorsuch about whether the MQD comes from the Constitution or is just common sense, with no impact on the case) and Thomas (responding to an argument about nondelegation that the majority didn't make) concurrences are entirely unnecessary bloviations. The Jackson concurrence is making an important point about the legislative history of IIEPA that none of the other justices reach for reasons that are not clear to me.

Since it's the Winter Olympics, here is my skating scores (out of 6.0) for the various opinions:

  • Roberts (+Gorsuch/Barrett) majority: Technical merit - 5.9 Artistic impression - 5.7
  • Gorsuch concurrence: Technical merit - 5.8 Artistic impression - 6.0
  • Barrett concurrence: Technical merit - 5.5 Artistic impression - 5.5
  • Kagan (+2 other libs) concurrence: Technical merit - 5.5 Artistic impression - 5.8
  • Jackson concurrence: Technical merit - 5.9 (if you believe in using legislative history in statutory interpretation, 4.5 if you don't) Artistic impression - 5.6
  • Thomas dissent: Technical merit - 4.0 Artistic impression - 5.5
  • Kav (+ 2 cons) dissent: Technical merit - 5.7 Artistic impression - 5.6. Particularly impressive given that their theory of the case (that the MQD is real and important and somehow doesn't apply to tariffs) is indefensible.

After reading the whole thing, my first reaction is "typical Gorsuch beast mode." As you said, it was a tremendously fun and interesting read, and he is certainly among the more gifted interlocutors in this crop of justices. The careful but not nitpicking argumentation on display here sits alongside Bostock v. Clayton county in my mind.

I agree that it was a little odd for him to go about repudiating every other opinion, but I think it's telling. With zero evidence at all, I would speculate that he is scared of judicial activism under the Trump administration and wants to get some of his logic on the board so it can be cited later. While it's not binding on its own, I think his choice to rhetorically bludgeon Clarence Thomas was tactful and sets the tone for his brand of textualism to persist. Keeping it to himself would fail to promote his specific reasoning. I'm just glad the Obviously Correct result won out, thanks MQD.

Gorsuch’s opinion will be taught in law schools as setting out the doctrinal elements of MQD. It is a tour de force.

Kavanaugh's issue isn't partisanship, it's that he overweights "disruption" to an even greater extent than Roberts does. We saw this when he agreed that the CDC rent freeze was unconstitutional and allowed it anyway, and we see it here with him complaining about the practical effects of refunds.

And, for an even more overt examples, I'll point to Snope. He previously even written -- in Heller II over a decade before! -- calling for more serious scrutiny of that very class of law. But they were busy that day.

We'll see if he can't punt any further on Monday.

I disagree. Kavanaugh makes a strong argument that given the Nixon tariff, the meaning at the time of the statue would’ve been clearly understood to include tariffs and therefore MQD is not applicable. The fact presidents haven’t used it since is largely irrelevant.

He also points to the historic understanding to again ground the definition to obviously include tariffs. Finally, he makes a compelling point that the majority seems to believe the statue permits a bull elephant in this elephant hole (the ability to prevent any imports from a country) yet the majority believes the statute precludes a baby elephant (ie a tariff). This is of course an inversion of how MQD typically work.

I think the reality is that in the merits of interpreting regulating imports Kavanaugh has the better of it. But I think what really bothers the conservative members of the majority is the statute envisages an emergency. But how could our trade balance—which has existed for decades—be an emergency?

So while that part wasn’t really reviewable I think the majority imprecisely used MQD to say no way even if doctrinally Kavanaugh has the better of it.

I disagree. Kavanaugh makes a strong argument that given the Nixon tariff, the meaning at the time of the statue would’ve been clearly understood to include tariffs and therefore MQD is not applicable. The fact presidents haven’t used it since is largely irrelevant.

And Jackson makes a stronger argument based on the Congressional Record that the statute was not, in fact, clearly understood to include tariffs at the time it was passed. I am a textualist, and I would prefer to interpret IIEPA according to its text (which makes this an easy MQD case). But if we want to know what Congress thought IIEPA meant, they told us.

I don’t found her analysis compelling at all (putting aside whether legislative history ought to even be considered).

It seems to me that regulating (the word used in the legislative history) easily can include tariffs. Moreover, I think she is wrong that tariffs goal is to raise revenue. It is impart revenue raising but many defenses of tariffs are not about revenue raising (eg protecting nascent industries, protecting strategically important industries). Tariffs categorically could easily fit within the legislative history.

But me finding a Jackson opinion lacking is like me finding steak delicious. It’s expected.

Finally, he makes a compelling point that the majority seems to believe the statue permits a bull elephant in this elephant hole (the ability to prevent any imports from a country) yet the majority believes the statute precludes a baby elephant (ie a tariff). This is of course an inversion of how MQD typically work.

I don't think this point is that compelling. A power that can be controlled precisely is greater than a power that can only be used completely or not at all, so a tariff that can go from 0 to a percentage that is indistinguishable than a ban is actually a greater power than to merely ban or not.

Alex Tabarrok just made this point as well, and he has useful analogies to illustrate it. I'm not 100% it's entirely correct, but it's definitely plausible and a point that is surely to be bouncing around in my mind for a while.

But the problem for Alex is that the majority also concedes that quotas are also permitted. So contra Alex the statute isn’t an all or nothing approach. The president can per the majority say “instead of the importing 100 widgets we will only permit 80 widgets.”

That is, quotas allow the more fine tuning that Alex claims Congress was trying to preclude since it was designed for an emergency.

That's fair enough as a concern for this case, but I would say that it is a different argument from the way that 'the lesser power is included in the greater' is typically invoked. His formulation shows that, perhaps, more granularity is not even a 'lesser' power. It's still not completely conceptually clear to me, but there's something to be said for a more careful analysis.

What you seem to be saying is that, even if one supposes that the granular tariff power is, in some sense, a 'greater' power than shutting off trade entirely, there is still a sort of equivalent 'greater' power in quotas. Again, this is plausible, and I'd want more conceptual exploration of how law should treat cases where there seem to be roughly equivalent, but (I don't know what to call it) "different track" powers.

But the majority also allows quotas (so not 0-100). Functionally, a quota functions somewhat similar to a tariff in economic impact.

Also the bull elephant isn't in a hole of any kind - it is on the face of the statute. The statute grants a number of powers expressly, including to prohibit trade. The Kavanaugh interpretation is that all of these, plus tariffs, are implicit in "regulate".

We can argue about whether it is rational to delegate a power to ban trade without also delegating the lesser power to tariff it. (In wartime, which was the original context of the legislation, it obviously is.) But if you interpret the text of IIEPA as limited to its express words (under the MQD or any other canon of strict construction) then that is what Congress did.

You misunderstand the metaphor.

The origination of the phrase is that Congress doesn’t hide elephants in mole holes (or anthills — I forget the specifics). The concept was the statue prima facie gave the authority (ie the hole) but the nature of bill was such that Congress clearly wasn’t intended to give a massive power to the executive.

Inverting the phrase (i.e., elephant in an elephant hole) is simply saying yes there was a massive grant of authority (ie the hole) but obviously Congress was intended to give the grant (thus the hole being elephant sized; not mole sized).

It is thus curious that Congress gave this large power but failed to include a smaller power within the catch all. Note this is the opposite of how MQD typically works.

Re wartime you have it exactly backwards. Tariffs become more important in wartime; not less. You are thinking about it in the context of the enemy. But the provision can be used for not just the enemy but third parties. As the executive, you may want to raise revenue, keep a supply of a vital good going while encouraging domestic production, or utilize the threat of tariffs to pressure third parties. It’s obviously a key wartime power and in the event of an actual war I believe SCOtUS would rule 9-0 there is a power to tariff.

Again, I think the real problem here is that there clearly was no emergency and thus Trump was abusing the statute. I think BK is correct that the statute envisages a tariff but am sympathetic to the majority that Congress was not envisioning its use in the way Trump has used the statute.

Scalia is the author of the original quote:

Congress, we have held, does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions-it does not, one might say, hide elephants in mouseholes.

Whitman v. American Trucking Associations, Inc., 531 U.S. 457 (2001)

The question is how do we get there from where we are. Congress is supposed to govern but is some combination of unwilling/unable to do so.

Honestly? More money in politics. If Congressional and Senate seats were actually sold to the highest bidder I think you'd get a higher quality of official than you have now.

If that seat cost fifty million dollars then you can be sure that whoever is in it will be both willing and able to govern. And they would be willing to compromise with the other side because they're prioritizing using the office they spent money on to pass legislation, not using the office they won in a popularity contest to make money by insider trading.

Although, I think you could probably do better than Simony as a system of government. It does have certain obvious drawbacks. I'm just saying the bar is currently on the floor.

Use random appointments to congress. Most people aren't deranged ideologues; deranged in other ways, yes, but not particularly ideological. We can replace our problems with different ones.

Well, at the least the official salary could be $1-2M.

As it is, senators make less on paper than some random car dealership owner or Silicon Valley engineers.

A larger House actually cuts against the Simony argument. Right now a serious House campaign costs $2-5 million minimum, which means you need a party machine, donor network, or both. That's the uniparty/duopoly's real structural advantage.

Scale from 435 to even 1,568 seats (1910 ratio) and the average district drops to 211,000 people. Push it to 3,344 seats (1850 ratio - 99,111 people) and you'd have the largest representative body on earth, a distinction currently held by China. You'd get more money in politics overall, but far less per seat. Suddenly a small business owner or local pastor can run a credible campaign for $300k. You don't need the apparatus anymore. Third parties and independents already outperform at the local level precisely because the electorate is small enough that you can actually know your constituents.

Bigger House, cheaper seats, less uniparty dependency. The opposite of Simony and probably more functional. The bar is on the floor but making seats more expensive doesn't raise it, it just guarantees the same people keep buying them.

Honestly? More money in politics. If Congressional and Senate seats were actually sold to the highest bidder I think you'd get a higher quality of official than you have now.

If I'm Jamie Dimon and JP Morgan just bought a dozen House seats, I am going to put a star legislator in one of them (who I can then get onto important committees and represent my interests) and 11 donkeys who will vote as instructed in the others. When seats in the British House of Commons could be bought, people didn't buy them planning to sit in them themselves. Some of the nominated MPs were younger sons from aristocratic families where the Lord owned the seat (and couldn't sit in it because peers were disqualified from the Commons), and some of those were exceptionally able, but most went to uninspired placemen who could be trusted not to think for themselves.

One talented leader and nine blindly obedient followers tend to function better than ten talented leaders leading in different directions. I still think it would result in a higher quality of official.

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