Category: Rule of Law

Some legal scholars say—and they’re right—that for ages to come Friday’s Supreme Court decision in Learning Resources v. Trump will be hailed as a landmark ruling on the limits of presidential power. Students of constitutional law will read it alongside Youngstown Sheet & Tube Co. v. Sawyer, a 1952 case establishing that a President cannot seize private property without congressional authorization. 

Fun fact: Both yesterday’s decision and the 1952 decision were 6 to 3 rulings.

Both Simple and Complex

The legal, economic, and political issues impacted by yesterday’s decision are, at one and the same time, both simple and complex. Like so many aspects of law and political economy, a full understanding requires thinking in different ways at the same time.

In this post, I am going to deal with the simple part of the matter: the Court’s holding—i.e., what the six members of the majority agreed on. 

The Court’s Opinion

Chief Justice Roberts wrote the opinion for the majority, consisting of himself and Justices Barrett, Gorsuch, Kagan, Sotomayor, and Barrett. The Chief Justice’s opinion is 21 pages long, but only Roberts, Barrett, and Gorsuch agreed with all 21 pages. All six agreed with the Court’s bottom line decision set forth at page 21, and all six agree with what the Chief Justice wrote at pages 1 through 7 and at pages 14-20. However, only Justices Roberts, Barrett, and Gorsuch agreed with pages 7-14 and with the part that begins on page 20.

In addition to this 21-page opinion of the Chief Justice, there are five other concurring or dissenting opinions. The whole enchilada amounts to 170 pages. 

But, of course, what really counts are the 13 pages of prose on which the 6-justice majority could come together.

A Case of Statutory Interpretation

This was not a contract case or a tort case or even a constitutional law case. It was instead a case of statutory interpretation—albeit a statute that required interpretation with the words of the Constitution in mind.

That statute in question was the IEEPA, the International Emergency Economic Powers Act, passed in 1977 to replace the old Trading with the Enemy Act, which was thought to have granted excessive power to the government.

The Two Main Issues

Going in, there were two main issues.

First, had Trump correctly determined the existence of some economic emergency justifying the invocation of the IEEPA? (And relatedly, even if he might have screwed up the emergency determination, was that determination nevertheless, as he claimed, unreviewable by the courts?)

Second, assuming for the sake of the discussion that the emergency finding was OK, did the IEEPA give the President the unrestrained power to impose any old tariff, at any old amount, for as long as he wanted, even though tariffs were no mentioned in the words of the statute and even though the Constitution says that Congress has exclusive power to impose tariffs?

The Non-Answer to the First Question

As to the first of these two questions, the Court punted. Chief Justice Roberts wrote, “We claim no special competence in matters of economics or foreign affairs.” That sentence, by the way, appeared in the part of the 21-page opinion that the three liberals did not endorse. 

Clearly, there was no majority in favor of ruling on the existence of the purported emergency, let alone a majority for rebuking Trump on that point. 

The Second Question—and the Key Ruling on that Question

The key ruling concerned the second question—whether, if a valid emergency exists, the kitbag of Presidential remedies does or does not include tariffs. 

Bottom line: six members of the Court ruled that the answer is no, the power to impose tariffs may not properly be inferred from language that does not mention tariffs, given the Constitution’s reservation of the tariff power to Congress, not the President. 

The “Major Questions Doctrine”: A Major Theological Red Herring Without Major Significance for Ordinary Civilians

As I said before, the six-member majority agreed on some 13 pages of Chief Justice Roberts’ opinion, and those 13 pages state the holding of the Court. The rest of the 170-page package is largely devoted to intense theological naval contemplation regarding the “major questions doctrine.”

The “major questions doctrine,” dating from about the year 2000, is a novel principle of statutory interpretation, beloved of business-oriented right wingers, intended to do battle against the administrative state. 

The gist is that questions of major political or economic significance may not be delegated to an administrative agency except with clear and explicit congressional authorization. If you’re interested, Wikipedia has a good article.

As we have seen, in the Friday tariff case, the six right-leaning justices split down the middle. The pro-Trump-tariffs faction had to explain how their position could be reconciled with their beloved major questions doctrine, and that, in turn, required pages and pages of tortured prose. Meanwhile, the anti-Trump-tariffs faction of right wingers wanted to get the three liberals to admit that the major questions doctrine was really a good thing after all. 

No such luck. The three liberals were having none of it. Ordinary statutory interpretation—without any special newly invented right wing canon of statutory exegesis—was fully sufficient to conclude that Trump was acting unlawfully.

And THAT, as we have seen, was, at the end of the day, exactly the 6 to 3 holding of the Supreme Court. 

The extra 150 pages were, in my opinion, largely a waste of ink and paper. 

The Bottom Line

Six members of the Supreme Court have crossed the Rubicon, ruling clearly and unambiguously that our toddler-in-chief has to give up his favorite box of matches.