Learning Res., Inc. v. Trump is Like a BET Cypher, Alternatively Titled "If you rely on IEEPA I feel bad for you son, it provides 99 delegations but tariffs ain't one"

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. 

Coaching and Praying

The Supreme Court’s most recent term created beaucoup controversy, as the conservative majority eroded or sledgehammered abortion rights, gun regulations, Federal climate change oversight, and a state’s decision not to provide public money to religious schools. 

Large and far-reaching as those decisions are, one case in particular struck me, because I have some familiarity with the circumstances. In Kennedy v. Bremerton School District, a high school football coach who prayed at midfield and led players and coaches in prayer following games didn’t have his contract renewed and sued that he was being discriminated against. In a 6-3 ruling the Supreme Court said that the school district violated Joseph Kennedy’s rights under the Free Speech and Free Exercise clauses of the First Amendment. 

I’ll leave it to the legal minds that occupy this here digital tree fort to debate the details and merit of the ruling, but I suspect that Kennedy’s case is less about free expression of faith and more about power and control. The local school board didn’t attempt to silence Kennedy or to prevent him from praying. Officials were concerned that they would be viewed as complicit in violating the separation of church and state by permitting Kennedy to continue his prayer sessions publicly and visibly at a public school event. The board offered to provide him with a private space to pray, off the field, and asked if he might delay his prayer sessions until after spectators departed. He declined and continued his post-game, midfield sessions until the school board dismissed him. 

Justice Neil Gorsuch, writing the majority opinion, said that Kennedy “offered his prayers quietly while his students were otherwise occupied,” and that he made “short, private, personal prayer.” He dismissed any notion that Kennedy’s prayer sessions might be implicitly coercive. Justice Sonia Sotomayor, in dissent, cheekily included a photo of a Kennedy prayer session in which he stood amid dozens of kneeling players and wrote that it was common knowledge that Kennedy invited others to join. 

This is where power and control come in. Kennedy coached teenaged boys. He had some sway over their playing time, their status on the team, their health and well-being, possibly their futures. If he invites players to prayer sessions, how many of them, or their parents, would say, “Nah, Coach, I’ma pass, and ya know, I’m not really comfortable with the whole thing.” Not many, I’d guess. 

Coaches have enormous influence over the athletes they work with. In my previous life as a sportswriter, I witnessed it pretty much daily. The best coaches understand the role they play and are judicious about how much of their lives and beliefs to introduce to young people, knowing that kids often want to please or that it may differ from what they experience at home. 

Is there a place for faith in sports or schools? Of course. But it’s humble and it’s personal. If it ends up in a Washington D.C., courtroom, something’s amiss.

zman Bouillabaise Redux

A few post ideas bubbled up in my meager brain but I never got around to writing them and/or I didn't know what to write so I'm doing another round of zman bouillabaise, which is like b-boy bouillabaisse but not as good.

1. Jacques Tits died.

Here's the introductory paragraph for Jacques Tits's Wikipedia entry: "Jacques Tits (French: [tits]) (12 August 1930 – 5 December 2021) was a Belgian-born French mathematician who worked on group theory and incidence geometry.  He introduced Tits buildings, the Tits alternative, the Tits group, and the Tits metric."

What more needs to be said?

2. The Large Hadron Collider lives.

CERN shut down the LHC in 2018 but it's up and running again.  I don't understand a goddam thing in that link and this is rob's corner anyway.  Just keep an eye out for Armageddon.  

3. The Supreme Court missed the forest for the trees in N.Y. State Rifle & Pistol.

In his opinion holding that "New York’s proper-cause requirement violates the Fourteenth Amendment by preventing law-abiding citizens with ordinary self-defense needs from exercising their Second Amendment right to keep and bear arms in public for self-defense," Justice Alito said:

Does the dissent think that laws like New York’s prevent or deter such atrocities? Will a person bent on carrying out a mass shooting be stopped if he knows that it is illegal to carry a handgun outside the home?  And how does the dissent account for the fact that one of the mass shootings near the top of its list took place in Buffalo? The New York law at issue in this case obviously did not stop that perpetrator.

He's correct.  There is probably no way to prevent criminally insane or evil people from committing mass shootings other than confiscating all guns.  But there is some value in trying to limit the amount of shootings that occur, mass or individual.  By that I mean, I don't want to live in a society where everyone around me could be armed at all times.  I don't want to worry that if I bump into someone at a bar they will shoot me because they are drunk and angry that I spilled their beer; or that if I get into a car accident the other person will put a gun in my face in a fit of road rage; or that I will be shot accidentally because some random doesn't know how to carry a gun properly.

Making it harder for people to carry guns outside the house limits the likelihood that this will happen.  The punishment for carrying without a permit is harsh in NY--just ask Plaxico Burress.  He went to jail for 22 months after accidentally shooting himself in the leg in a nightclub while carrying a pistol without a permit.  By contrast, Michael Vick went to jail for about 18 months for his dogfighting ring, while Donte Stallworth went to jail for 30 days killing a man while driving drunk.

We can argue about the proportionality of these punishments compared to the respective crimes, but we can all agree that we are glad we weren't standing next to Plaxico when he accidentally fired his gun that night, and his punishment hopefully deterred a lot of other people from carrying a gun.  Yes, he was carrying illegally, while this decision is about the limitations a state may place on how to obtain a permit to carry legally.  But I think his story counsels against carrying in general and in favor of serious limitations on who, what, where, why, when and how carrying should be allowed.

That's why New York's "proper cause" requirement for a concealed carry permit made sense and should have been upheld.

4. Any debate whether Trump acted up in the limo or threw a Big Mac misses the forest for the trees.

I don't care if Trump grabbed for the steering wheel or his security guard's neck.  I don't care if he threw a plateful of McDonald's finest meats and cheeses and ketchup at the wall.  He riled up an armed mob and told them to go to the Capitol to "fight like hell."  They took him literally and he wanted them to.  Five people died as a direct result, and at least two killed themselves afterwards.  What more needs to be said?

5. WFMU continues to deliver.

I should do another zShazams post but if I do I won't be able to include "Modern Diseases" by Fifth Column because I can't find it on Spotify.  It isn't on YouTube either so I can't even make a Notify contribution!  You can listen to it on the WMFU playlist site.  Here's a Fifth Column song that you can find on YouTube:

Apparently they were "a Canadian all-female post-punk band from Toronto, formed in the early 1980s."  You too can find nifty stuff on WFMU.org and it's free to stream.

Why People Write Shitty Things About LeBron James, Alternatively Titled "LeBron James Will Never Clerk for the Supreme Court"

By popular demand, the first-ever re-post of a G:TB entry. Consider this G:TB Classic:

Getting a job in the NBA is an incredibly competitive task. Only 60 people get drafted each year, and perhaps a handful (I'll ballpark it at nine) of undrafted players make teams.

An even more competitive job market exists in DC. Each year, the Justices of the Supreme Court hire clerks for one term. Each Justice may hire up to four clerks, and the Chief may hire five (but apparently he typically takes only four). So only 36 or 37 people get taken in this legal draft.

Hear me out before you scoff at this comparison. Supreme Court clerks command signing bonuses in the neighborhood of $250,000 if they go to a big law firm after their clerkship. Many just go to a firm for a year or two for the bonus, then go on to whatever career they want to have until they die. Many take cushy jobs like professorships or 9-to-5 government work and resign themselves that in exchange for the easy lifestyle they will never make baller money. But if they choose to stay at a law firm they are all but guaranteed to become partners with seven-figure earning potential. And even if they choose to work a government gig for ten or twelve years, many can get a partnership at a firm and make seven figures due in no small part to their SCOTUS clerkship.

In short, getting drafted by Scalia is just as much of a golden ticket as getting drafted by the Bulls. Perhaps even more so, given the length of a career in law compared to one in the NBA.

Getting drafted by one of the Supremes (or "the Big House" as some law students call it) may be the tougher task. The majority are pulled from the holy trinity of Harvard, Yale, and Stanford, with a fair number from Columbia, Chicago, Virginia, and Berkeley. Before earning one of these golden tickets, applicants must first complete another clerkship, almost always with a federal appellate court judge. Getting an appellate clerkship is very hard too, and even then you have to clerk for one of the "feeder" judges.

Most SCOTUS clerks are put on a track to the Big House early on in law school by attracting attention from famous professors. For example, Laurence Tribe writes one clerkship recommendation per year, referred to as "The Larry Letter" by HLS students. Anyone who gets The Larry Letter has an inside track on a SCOTUS clerkship.

How, you ask, does one make this happen? I'll tell you. First, you have to be smart, born that way as Lady Gaga would say. Second, you have to work your ass off for at least the first 26-or-so years of your life. You have to do well in high school and on your SAT's so that you can go to a premiere undergraduate program. Then you must earn excellent grades for three years. Then you must place in the top percentile on the LSAT. Then you will hopefully be accepted to one of the HYS trinity schools, where you must continue to assault your schoolwork and graduate in the top 10 or so of your class. Not the top 10%, but in the top 10. While doing so you must attract the attention of professors by showing genuine interest in the subject matter of their classes, and by proposing creative viewpoints on how the law should be. Then you land a top clerkship with a feeder judge and dazzle him or her with your brilliance, work ethic, and scholarly mien.

While everything in the previous paragraph is happening you can never fuck up. You can't get a DUI, you can't get busted for smoking pot, you can't get in a fight and break a potted tree over some guy's head, you can't be the summer associate who jumped into the Hudson River, you can't be the featured baby daddy on "16 and Pregnant," and you can't get caught spray painting an "A" between the unit letters on the frat houses across the street from yours. In fact, you probably can't be in a frat. Scholars look down on them and so should you, if you want your name called in the biggest of legal drafts. And you certainly can't be a really smart guy who never studied in high school but still managed to do well enough to get into one of the country's best schools with a top-notch biological sciences program, who, despite his interest in biology, instead went to a very-good-but-not-outstanding public school with almost no national street cred because his guidance counselor, who, incidentally, wore a very bad toupe, suggested it was the wiser idea, and then proceeded to do absolutely no work whatsoever in college, somehow graduated in 4 years, putzed around for 7 years, went to a good-but-not-very-good law school despite his undergraduate shortcomings, applied himself, beat the snot out of law school, and got a good job. That guy has no chance of even sniffing the chambers of the Big House, outside of a guided tour.

The NBA draft seems somewhat similar, if not a bit more forgiving. First, you must be born with insane athleticism and, ideally, freakish size, speed, jumping ability, and hand-eye coordination. Then you must work your ass off at the high school level to attract the attention of scouts from premiere undergraduate basketball programs. You might be fast-tracked to the pros via some AAU league, but you must sign with the right school, one where you can start, learn the game, and get plenty of TV time. You must work your ass off to be a starter, and then you have to do all the things that are now terrible sportswriting cliches. Show heart. See the floor. Make your teammates better. Be clutch. Feel the moment. Raise your game. Swing momentum. Be a leader. Be coachable. Be a student-athlete. Be a student of the game. Do the little things. Have a feel for the game. Have a high basketball IQ. Know how to put your foot on their neck. And so on.

The big difference is that athletes are allowed to fuck up as much as they want. They can take money from scouts, they can get in fights, they can smoke pot, they can get drunk and piss on the Dean's door. They'll still get drafted.

No one ever got a Supreme Court clerkship just because they were smart, and no one ever got drafted in the NBA just because they were tall. It takes lots of effort and God-given talent and people teaching you, coaching you, generally giving a shit about you and your success.

Which (finally, you might say) brings me to the point of this post. LeBron James is by all accounts a good guy. No DUI's; drugs; gambling rings; serial animal cruelty; manslaughter, murder, attempted murder, murder-for-hire, or murder cover-ups and the associated obstruction of justice; womanizing, bastardizing, or using public funds to cover up same; rape; brawling; drunkenness in a public canal; defecating in a laundry hamper; gunfighting; making it rain and then gunfighting; or anything like that.

But people still dislike him. I can tell you why.

Remember that hypothetical smart guy I mentioned before? I bet he would have hypothetical friends from his hypothetical high school days who lambaste him about how lazy he was when he was a kid and how he "could have done something" beyond whatever it is he did or does, like "you could have clerked for the Supreme Court." Kind of like in "Good Will Hunting" when Ben Affleck tells Matt Damon "Fuck you, you don't owe it to yourself man, you owe it to me. Cuz tomorrow I'm gonna wake up and I'll be 50, and I'll still be doin' this shit. And that's all right. That's fine. I mean, you're sittin' on a winnin' lottery ticket. And you're too much of a pussy to cash it in, and that's bullshit. 'Cause I'd do fuckin' anything to have what you got. So would any of these fuckin' guys. It'd be an insult to us if you're still here in 20 years. Hangin' around here is a fuckin' waste of your time."

Not to say that this hypothetical guy is a genius, but his hypothetical friends hold his intelligence in pretty high regard. Hypothetically. Whether he truly could have been a Supreme Court clerk is irrelevant. That his friends think he could is key. His failure to live up to their perceived potential irritates them, no matter how much he redeems himself through hard work as an adult.

It's safe to say that people envy LeBron James. He has unbelievable physical gifts, and, despite being born to a 16-year-old single mom, he managed to get enough love, support, coaching, and direction to avoid all the pitfalls that typically ensnare kids born to 16-year-old single moms. So not only is he physically gifted, he was lucky enough to be surrounded by people that cared about him. This convergence of good fortune, this embarassment of biological and social riches, allowed him to become the best basketball player on the planet, to make millions of dollars, to have legions of fans, and to become ragingly disproportionately important in public discourse.

When a guy with that much good luck fails to give, or appears to fail to give, 110%, people get pissed off. Squandering such gifts makes the average person angry, perhaps irrationally, but that's how it works, especially when these squandered gifts are bestowed upon someone who makes hundreds of millions of dollars via his squandration.

And that's why people write shitty things about LeBron James.