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. 

Straight Fax Homie

Today is National Signing Day. Which means thousands of grown men have taken the day off work so they can monitor which 17 and 18 year old high school football players will fax (yes, they still use fax machines for this in 2013) a signed letter of intent to their favorite college. Thousands more grown men will spend most of their day at work monitoring these same activities via their computer. Many of these are successful, intelligent men. If this all sounds completely ridiculous to you, that's because it is. On the other hand, it's also understandable.

College Football has (over the last decade) become America's second most popular sport behind professional football (Translation: Americans like football. A lot.) and College Football is a sport where a team's success is largely determined by a University's ability to recruit, sign and develop the most talented high school football players in America. Millions (and increasingly billions) of dollars are at stake each National Signing Day. Many people do not like the attention paid to National Signing Day (or the seedy, slimy path that leads us to NSD) and I understand their reservations. Unfortunately for them, the popularity of college football recruiting isn't going anywhere. At least not for the foreseeable future. What was once something only die hard College Football fans followed has become an industry unto itself. With two nationally televised All-American games, four national recruiting websites that employ hundreds of people each and an untold number of magazines devoted exclusively to recruiting.

While recruiting is certainly an inexact science (Colin Kaepernick and his whopping total of one Division I scholarship offer come to mind), it's not as wild a guessing game as some would have you believe. Are there plenty of players who end up never coming close to fulfilling their potential each year? Absolutely. Just as there are many kids who far exceed their recruiting rankings and surpass many of their much more highly touted classmates on their school's depth charts.

Why's this? Because analysts are trying to project the next 3-5 years of an 18 year olds life. I couldn't have predicted my own collegiate career with any accuracy when I was 18 (For the record, I attended 3 different colleges in my first three years). Moreover, NFL teams with better background information, more game tape and sophisticated scouting departments regularly screw up their drafts. So it shouldn't come as a surprise that College Football recruiting is filled with "misses". Quite the opposite. With all that said, the recruiting rankings can be (and usually are) a great guide for which programs are moving in the right (or wrong) direction. Ole Miss is a great example this year. Somehow, Ole Miss is ranked in the top 15 recruiting classes in the nation this year, with a legitimate shot to land the nation's #1 overall player, #1 Offensive Lineman and #1 Wide Receiver. And Hugh Freeze would like you to shut the hell up about it, thank you very much.

Of course, the best example of recruiting rankings being a good guide for program success is current back to back BCS Champion, Alabama. Despite having a roster loaded to the gills with 4 and 5 star recruits, Nick Saban and his staff continually pull in recruiting classes in the top 2 or 3 in the country. No small feat considering that every other school is using the Tide's depth of talent to recruit against them. However, yet again, this year the Tide have pulled in either the #1 or #2 class in the country heading into today. How does Saban manage to convince kids to come to Tuscaloosa despite a roster filled with high school All-Americans? There are plenty of reasons: The program's continued success, the amount of Alabama players being drafted into the NFL, the deep pockets of Alabama's boosters (allegedly) and numerous others. Another key reason is that Saban has a proven track record of playing talented freshman when they're better than the upperclassmen at their position (Examples: Mark Ingram, Julio Jones, DJ Fluker, Amari Cooper and on and on). The best players want a chance to play, prove themselves and move onto to the NFL. Saban has proven to high school recruits that they can do just that under his watch Oh, and it also doesn't hurt that Alabama spends a shit ton of money on recruiting. Being able to bring a recruit into a place like this isn't bad either.

Now, if you look at the recruiting rankings I linked to above, you'll notice that many schools have commits from over 20+ kids. Which begs the question: If most of these guys are already committed then why is National Signing Day a big deal? Because these are 18 year old kids being wooed like NFL stars and, well, kids change their minds. Lots. Lots and lots. Just last year, a 5 star recruit named Dante Fowler, Jr. who had been committed to FSU for over a year decided on the night before National Signing Day that Florida was a better place for him. He surprised everyone and faxed his letter of intent to Gainesville the next morning. Fowler ended up being a major contributor as a freshman at Florida and will assuredly start as a true sophomore. And this sort of thing isn't an isolated case. It happens every year, all over the country and will happen multiple times tomorrow.

Did I take off work? No. Most of Florida's class is taken care of (barring any last second defections). Will I spend more time checking things on Twitter than I do working today? Most likely.

Also, one thing to keep in mind when you hear people bemoaning the circus created by the announcements of these kids today. Sometimes, a kid does something really original to announce his commitment.

And sometimes that same kid will get arrested for felony possession of a firearm and be thrown off the team in less than a year. Keep today in perspective, folks. (Also, don't tweet at recruits...dummy)