This weekly roundup thread is intended for all culture war posts. 'Culture war' is vaguely defined, but it basically means controversial issues that fall along set tribal lines. Arguments over culture war issues generate a lot of heat and little light, and few deeply entrenched people ever change their minds. This thread is for voicing opinions and analyzing the state of the discussion while trying to optimize for light over heat.
Optimistically, we think that engaging with people you disagree with is worth your time, and so is being nice! Pessimistically, there are many dynamics that can lead discussions on Culture War topics to become unproductive. There's a human tendency to divide along tribal lines, praising your ingroup and vilifying your outgroup - and if you think you find it easy to criticize your ingroup, then it may be that your outgroup is not who you think it is. Extremists with opposing positions can feed off each other, highlighting each other's worst points to justify their own angry rhetoric, which becomes in turn a new example of bad behavior for the other side to highlight.
We would like to avoid these negative dynamics. Accordingly, we ask that you do not use this thread for waging the Culture War. Examples of waging the Culture War:
-
Shaming.
-
Attempting to 'build consensus' or enforce ideological conformity.
-
Making sweeping generalizations to vilify a group you dislike.
-
Recruiting for a cause.
-
Posting links that could be summarized as 'Boo outgroup!' Basically, if your content is 'Can you believe what Those People did this week?' then you should either refrain from posting, or do some very patient work to contextualize and/or steel-man the relevant viewpoint.
In general, you should argue to understand, not to win. This thread is not territory to be claimed by one group or another; indeed, the aim is to have many different viewpoints represented here. Thus, we also ask that you follow some guidelines:
-
Speak plainly. Avoid sarcasm and mockery. When disagreeing with someone, state your objections explicitly.
-
Be as precise and charitable as you can. Don't paraphrase unflatteringly.
-
Don't imply that someone said something they did not say, even if you think it follows from what they said.
-
Write like everyone is reading and you want them to be included in the discussion.
On an ad hoc basis, the mods will try to compile a list of the best posts/comments from the previous week, posted in Quality Contribution threads and archived at /r/TheThread. You may nominate a comment for this list by clicking on 'report' at the bottom of the post and typing 'Actually a quality contribution' as the report reason.
Jump in the discussion.
No email address required.
Notes -
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:
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.
More options
Context Copy link
More options
Context Copy link
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.
More options
Context Copy link
More options
Context Copy link
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.
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.
More options
Context Copy link
More options
Context Copy link
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.
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
But the majority also allows quotas (so not 0-100). Functionally, a quota functions somewhat similar to a tariff in economic impact.
More options
Context Copy link
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:
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
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.
More options
Context Copy link
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.
More options
Context Copy link
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.
More options
Context Copy link
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.
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link