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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:
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.
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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 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.
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