On Friday, in Learning Res., Inc. v. Trump, the Supreme Court held that the International Emergency Economic Powers Act (IEEPA) does not authorize the President to impose tariffs. The gist of it all is the IEEPA lets the President "regulate imports" which isn't the same thing as taxing or tariffing. Six justices agreed on this outcome, but there were two different rationales and lots of shade thrown across three concurrences and two dissents. It was all very hiphop, as if they were in a Federalist cypher.
The cypher started with Chief Justice Roberts writing for himself and Justices Kagan, Sotomator, Jackson, Barrett and Gorsuch, applying the "major questions doctrine" (some newfangled coproma passed off as conservative jurisprudence) which says that "Congress would not have delegated 'highly consequential power' through ambiguous language. These considerations apply with particular force where, as here, the purported delegation involves the core congressional power of the purse." This means that the party asserting that they were delegated the Congressional power at issue must "point to clear congressional authorization” in the relevant statute. You may recall that six Justices relied on this doctrine to overrule Joe Biden's student loan forgiveness plan in Biden v. Nebraska.
Justice Kagan then got on the mic to represent herself, Sotomayor and Jackson. They concurred, but they felt there was no need to invoke the major questions doctrine because "the ordinary tools of statutory interpretation amply support [this] result." I am an ordinary tool and I agree with them.
Justice Gorsuch, ever the philodox, took it upon himself to get on the mic and write 46 pages (the main opinion was only 21!) bemuting upon everyone else's analysis except the Chief Justice's. First he essentially accused Justices Kagan and Sotomayor of outcome-based reasoning, picking the winner based on their personal preference rather than a rigorous application of the law. I'll channel the underpants gnomes and go to third, where he also essentially accused Justices Kavanaugh, Alito and Thomas of outcome-based reasoning but in a slightly nicer way (although he does linger a bit to highlight, albeit politely, the preposterousness of Thomas's dissent).
But second, and remarkably, this quibberdick spilled ink across nine pages to desticate over Justice Barrett's application of the major question doctrine in Biden v. Nebraska! He's so irked about an opinion from three years ago that he had to drag it into this one. We all have a guy like this at work.
Justice Barrett did not appreciate having her name on the streets. Naturally, she channeled her inner Mad Cobra and wrote a concurrence directly addressing Gorsuch, saying "I would not treat this evidence as precedent for a judicial flex."
If you were young and alive in northern New Jersey in the summer of 1992 you undoubtedly are familiar with Mad Cobra's song "Flex." It's more likely than not that you spent time in a car with a number of other young, alive people with the windows down and this song playing loudly.
Parenthetically, Wikipedia says "Mad Cobra stated that he was on a flight returning from New York, and was watching an exercise video on the in-flight entertainment system, and the lyrics 'How this lady flex like she want to have sex?' came to him. He wrote the lyrics for the song on an air sickness bag in his plane seat and took them to the studio when he arrived in Jamaica."
Perhaps Justice Barrett wrote the opening draft of her concurrence on an air sickness bag too. Or maybe she's a Rich Homie Quan fan.
The mic then passed to Justice Kagan who explained her reasoning admirably but fumbled a major opportunity to flex (see what I did there?) her New York City credentials. In explaining the various actions delegated by Congress to the President under the IEEPA, she noted there are "9 verbs listed in IEEPA's delegation provision" and "[t]hose verbs are followed by 11 objects, each describing a distinct sort of transaction involving foreign property." She then did some fancy math and concluded "Combine the verbs and objects in all possible ways, and the statute authorizes 99 actions a President can take to address a foreign threat. And exactly none of the other 98 involves raising revenues." This passage clearly screams for the conclusion "If you rely on IEEPA I feel bad for you son, it provides 99 delegations but tariffs ain't one."
Justice Jackson took to the mic to spit eight bars (just four full pages) saying that all this sniping is unnecessary because Congress's intent is clear from the legislative record. Conservatives refuse to look at the legislative record when interpreting statutes, instead favoring dictionaries and other historical references. That's how we wind up with "history and tradition" tests like this bunkum. I would've said something like "Our forefathers wrote IEEPA for foreign property, the Prez can take it in wartime but not impose duties. Come here, young blood, and take a look. Acknowledge your legislative history!"
When SCOTUS finally invites me to one of their cyphers I'll get them straightened out.
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