With clear eyes, hard facts, critical thinking, new political strategy, empathy, and a soupçon of Schadenfreude
Category: Situational Awareness
Posts about the situation we are in–the good facts, the bad facts, and the terrible facts. Facts that, if taken on board, will let us “know ourselves, know the other side” and go on to win those hundred battles.
Neal Katyal, the winning advocate in the Learning Resources case, says his team decided not to raise the question of rebates because their legal research showed that all the precedents said that if a tariff is found to be illegal, then it must be refunded.
By contrast, Team Fascist says they are still mulling what to do about all that money they collected illegally.
Some thing this will lead to a big, bloody mess. But, to me, the situation bears a close resemblance to the issue of illegal overcharges in antitrust law, which I used to practice back in the olden days when I still had all my hair.
In federal antitrust law, someone who pays an illegal overcharge for widgets has the legal right to damages calculated based on the amount of the overcharge. The direct purchaser has the right to the full amount of the overpayment. It doesn’t matter whether they passed on all or part of the overcharge to their own customers. The party that charged the excess amount may not be heard to argue that some of the overcharge was passed on to other purchasers down the line. And an indirect purchaser who bore some of the overcharge has no legal claim to a refund (whatever you might think of the indirect purchaser’s moral claim for the overcharge he paid).
State law may differ, but that’s how federal antitrust works. And, typically, the direct purchaser’s claim is enforced through class action litigation.
Logically, then, the solution here is that there should be a national class action in which the plaintiff class would consist of everyone who directly paid an IEEPA tariff. In that class action, Team Trump would be barred, by the doctrines of res judicata and collateral estoppel, from relitigating the question the Supreme Court just decided. Nor could Team Trump argue that payouts to those who directly paid the illegal tariffs should be reduced by the amounts they passed on to someone else. The remaining issue in the class action would be what documentation a plaintiff class member would be required to submit in order to claim her refund.
As we have seen, the Learning Resources decision was 6 to 3, but there were three distinct factions:
the liberals, who thought that ordinary tools of statutory interpretation condemned Trumps IEEPA tariffs, and that the “major questions doctrine,” which they did not recognize, was not germane to the decision,
three of the rightwing justices, who cherished the “major questions doctrine” and thought it was of considerable relevance in ruling against Trump on the tariffs, and
the three other rightwing justices, who also cherished the “major questions doctrine” as a general matter, but who squirmed to deny its relevance to the case at bar.
In other words, at least for this case, probably for other tariff cases, and possibly for future cases on other topics, the six rightwingers have split down the middle into two opposed factions.
Justices Gorsuch and Barret, along with Chief Justice Roberts, are the swing votes. Who wins a future tariff case will turn on whether Barrett, Gorsuch, and Roberts side with the liberals or whether they side with the other three rightwingers.
And, make no mistake, there will be future tariff cases. There will be future tariff cases up the wazoo.
Trump’s post-decision hissy fit will do nothing to persuade its targets—who are, of course, the very three people he must persuade if he is to have an icecube’s chance in Hell of prevailing in future tariff litigation.
The hissy fit is also intended to threaten and intimidate, but I am persuaded that intimidation will not work either. Why? Because if Barrett, Gorsuch, and Roberts were going to be intimidated, I think we would already seen the effects of that intimidation.
Bottom line, at the end of five minutes of trenchant analysis: “Tariffs as an instrument of arbitrary power have been dismantled.”
Feel free to visit Krugman’ substack—it’s behind a paywall—if you so choose.
Meanwhile, in a world of great uncertainty, a couple of things are certain: Trump will continue to try to abuse whatever tariff power he may have, there will be lots and lots of litigation, and some of those cases will reach the Supreme Court in the coming months.
Among progressives, opinions differ—as do kneejerk reactions—about the likelihood of any degree of success by Team Trump. International trade law is not my field, and I have no crystal ball. But I do like this analysis by someone whose handle is EricAZ (not otherwise known by me from Adam’s housecat), who posted this yesterday on Daily Kos:
Trump’s Decision to Beat a Dead Horse on Tariffs Will Hasten His Fall
A smart person would take his lumps and move on. Trump is not a smart person. Let’s assume that the “best people” that Trump brought to his Cabinet and the White House picked the statute most favorable to his tariff plans. One of the most conservative Supreme Courts since the Civil War beat him with a stick.
Now, Trump is preparing to work his way through other statutes looking for support for his tariff plans. (Keep in mind that the U.S. Constitution says tariffs are under the control of Congress. And the Supreme Court just upheld that fact.)
Having been told, “Don’t let the screen door hit you,” Trump wants to try his luck again. Never mind that the public does not like tariffs, does not like paying higher taxes, does not like a loser and has dropped its esteem for Trump to a level somewhere between Nixon and a road-Kill skunk.
But here the valiant Donald prepares to make his stand.
Here is the list of statutes the president can use to regulate trade:
Section 232 of the Trade Expansion Act of 1962:Allows the president to impose tariffs if imports threaten national security. Pam Bondi can argue that avacados and plastic toys threaten national security. Even with Pete Hegseth guarding the coast, we probably can withstand avacado imports.
Section 201 of the Trade Act of 1974: Enables the president to impose tariffs if an import surge threatens a U.S. domestic industry. Pretty narrow in focus. Imaginary ballrooms are not an important domestic industry.
Section 122 of the Trade Act of 1974: Allows the president to impose tariffs to address international payments problems, with no cap on the level of duties or duration. Despite Trump’s best efforts, we still don’t have an international payments problem.
Section 301 of the Trade Act of 1974: Allows the president to investigate unfair trade practices and impose tariffs, with no limits on the size of the tariffs. Having tried to impose tariffs on the entire world, including uninhabited islands, it will be hard to make a case that the entire world is engaged in unfair trade practices. Especially when Trump claims to have made trade agreements with most of the world.
International Emergency Economic Powers Act (IEEPA): Provides the president with broad authority to impose tariffs in response to economic emergencies. Been there, done that. The court said no.
Many people expect Trump to use one or more of these statutes to repeat the long process he has gone through with his failed IEEPA effort.
One thing the justices really hate, is doing work. Especially repeating work that they or some other judge has already done.
Most likely, any new version of Trump tariffs would be thrown out at the District Court level very quickly. The court would likely leave an injunction against the new tariffs in place until the case works its way to the Supreme Court. At this level, there are no do-overs. The High Court would decline to hear the case and the injunction would stand.
All this happens against a background of Trump’s declining numbers and people’s distaste for high prices and unnecessary tariff taxes at the grocery store. Political parties sometimes survive immense blunders and sometimes they don’t.
I plan to post some posts about the implication of the Learning Resources case going forward. But first a look backwards.
The oral argument was November 5, 2025. The decision was last Friday, February 20, 2026. The time from argument to decision was about 3 ½ months, or 107 days, to be exact.
What the hell was going on during those 107 days?
They Were Exchanging and Polishing Drafts
Consider this example. After oral argument, there is a split among the justices; the majority thinks the plaintiff should win, while the minority would have liked to see the defendant prevail. The job of writing the majority decision is assigned by Justice Smith, while Justice Jones is tasked with drafting the dissenting opinion.
Justices Smith and Jones, plus their respective law clerks, get to work drafting. Thereupon, they exchange drafts. Justice Smith discovers that the Jones draft makes some seemingly good points that she failed to consider in her majority draft opinion, while Justice Jones discovers the same thing about the other side’s draft.
Each side revises its draft to cast shade on the other, in a more precise and pointed way. They exchange second drafts, whereupon Smith concludes that Jones has misstated his position, set up a straw man argument, and needs to be taken to task.
Drafts continue to be prepared and exchanged until everybody is satisfied that they have set forth their respective positions in the best way possible. Finally, the law clerks go over the drafts to make sure, for example, that when Smith critiques a position taken by Jones on page 15 of his dissent, it really is page 15, not page 13 or page 16.
That was a simple example. In the actual Learning Resources case, there was a majority opinion, two concurring opinions, two opinions concurring in part and concurring in the judgment, and two dissenting opinions.
Whole lotta draftin’ goin’ on. Whole lotta exchangin’ drafts goin’ on.
A Lot of Drafting and Exchanging Drafts, but Should it Have Taken 3 ½ Months?
No. The justices, and their stellar law clerks who graduated at the top of the class in stellar law schools, all know how to sit down and write a polished legal draft in very short order.
In my opinion, a month would have been a generous amount of time for the drafting and exchanging process to play out.
Are There Some Other Vanilla Excuses for the Delay?
Of course there are.
A lot of other stuff was going on—particularly a whole bunch of emergency appeals from Trump’s many other usurpations.
And three months is not out of line for recent precedent involving consequential Supreme Court decisions.
Yadda, yadda, yadda.
OK, What do You Think was REALLY Going On?
Many scholars and many commentators have detected a tendency for the Supreme Court to avoid confronting a newly elected president and to wait until his popularity has declined, before handing him his head on a silver platter. Common examples are the Nixon tapes decision in 1974 and the Truman steel seizure case in 1952.
Here, the Court waited until the promised upsides of the tariff usurpation had failed to materialize, the downsides had become widely apparent, and Trump’s popularity was clearly sinking.
Gallup, Fox News, and Pew Research, among others, all show a material decline in Trump’s popularity from early November of last year to late February of this year.
I think that’s probably why they waited so long: they wanted to hand Trump enough rope to let him hang himself good and proper.
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.
I watched this lengthy, but very insightful, dialogue between two focus group experts. The time was well spent. Consider taking the trouble to watch yourself, if you want to understand the current state of opinion among the masses of our fellow Americans.
Honesty is the Best Policy, and Other Thoughts About Communicating with MAGA
First of all, if you want to employ advocacy in the real world—not just in environments where you feel comfortable, but also in situations where advocacy might actually achieve something—then you need to identify your target and to be clear about what you want he, she, or them to do.
Now, it would be nice if everyone on Team Red would recognize the error of their ways, and come join Team Blue. But that is not going to happen. A more realistic objective would be to help them realize that things are going badly for Team Red—and there’s no real point in their voting in the next election or two. If lots of Team Red stay home, then we win—which, by the way, is exactly what has been happening in recent special elections.
Second, while honesty is essential, candor is likely to be counterproductive. To illustrate: the next time you’re dining with a MAGA acquaintance, you probably don’t want to say something candid such as, “I know that I am your moral and intellectual superior, but I’ll deign to talk with you if you will listen politely.”
A better course would be to argue along the lines, “Well, if you believe X, let’s talk about the implications of that belief.”
Third, if your objective is to get your MAGA acquaintance just to stay home on election day, then a good way of accomplishing that objective may to join he, she, or them in reasoning rationally and honestly from the false premises that he, she, or they entertain. To wit: your MAGA dinner companion may have voted for Trump three times because he or she believes that, while Trump is an asshole, he is an asshole who is working for the MAGA community and against the people whom the MAGA community hates.
Your objective is not to convince your MAGA acquaintance that he or she ought not to hate people—or that she or he ought not to hate the particular kinds of people that he or she hates.
No, your objective is to convince him or her that Trump is an asshole all right, but he is the kind of asshole who actually despises the people who voted for him three times—and that Orange Mussolini has absolutely no intention of prioritizing the core economic interests of his core supporters, namely, white people without a college education.
In other words, MAGA folks, yes, he’s an asshole, but he is most emphatically NOT YOUR asshole.
“The Epstein Class”
The biggest and most important thing I learned as a professional advocate for several decades is that it is so much easier—so much easier—to sell an argument if that argument is based on actual facts, as distinguished from delusional bullshit.
Notice how Jon Ossoff uses actual facts to construct his argument, and then to tie it all together with a pink ribbon using the concept of “the Epstein class.”
Two days ago, a federal judge in Fulton County ordered that Team Trump “shall file, no later than the close of business on Tuesday, February 10, 2026, the search warrant affidavit [about the alleged voter fraud in 2020] subject to the redaction of the names of non-governmental witnesses.”
Bully, Bully, for Judge Boulee
United States District Judge J.P. Boulee signed the order. A former partner at Jones Day, where he worked in that firm’s Corporate Criminal Investigations practice group, Judge Boulee was elevated to the federal bench by Donald Trump.
Facing MAGA 