superrific
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SCOTUS Catch-all | SCOTUS overturns IEEPA Trump tariffs
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superrific
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Called it.
Well, sort of. While I expected this, I did not expect that Gorsuch would try to turn the case into a Law Review symposium on the major questions doctrine, thus preventing the court from grappling with the remedy question, which is easily the most complicated issue in the case.
Ddseddse
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Yeah, Trump already floated a tariff's dividend check himself. There's a path here to doing the refunds to the American people thought that type of payment because it would give Trump something to pretend was a win "Look I'm sending you a check!". Arguably (maybe?) better than a straight refund to corporations while the American public just holds the bag, which is honestly the most likely refund scenario.
I can just see it now a brand new Supreme Court ruling... corporations are't just people, corporations are the people. The distinction being that if corporations are the people, then giving away American tax dollars to american corporations is really just returning the money to the people. In the future your tax refunds don't come back to you, the get sent directly to Google, Delta, and Coca-Cola, because, after all, isn't that really just the same thing? (and yes, this is satire, but honesty much of what is happening today would have been satire too if written about fifteen years ago)
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I did a quick check of my records and it looks like I will be entitled to a Trump tariff refund of around $20,000
Every president has uttered something similar at one point or other. Trump has gotten his way in the Supreme Court so much, yet acts like a little baby when he can’t have all the toys. If he weren’t perpetually allergic to working with Congress and having to share power with others, he wouldn’t have these problems.
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This has been a major problem brought on my this admiration. I don’t know if the harm is irreparable, but if it’s not, it will take a long time to repair. Other nations need to know we won’t elect someone else like Trump ever again, but we really blew it by electing him again.
superrific
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Super's take, part 1:
1. The opinions here are disgraceful. I'm going to have to include the liberal justices here, though theirs are clearly the best of the lot.
This is a case about determining the intent of Congress when establishing "emergency' trade policy. The Justices look at dictionaries and centuries old cases and lapsed statutes and committee reports and NOT ONE TIME do they address the single most important determinant of Congress' intent in passing the 1977 statute: GATT. From what I can tell, GATT isn't even mentioned.
It's not simply that GATT was a binding treaty, which of course it was (still is, technically, but Trump killed it). It's not simply that there could have been consequences for violating its provisions (there were). It's that GATT was the single most important linchpin in US foreign economic policy throughout the entire period. Basically, U.S. foreign policy was a) anti-communist; b) pro-trade; and c) a bunch of other stuff of dwindling importance compared to those two. And if Congress had allowed the executive to upend the GATT, it would have seriously undermined the nation's economic agenda.
So the very first referent point to determine Congress' intent should have been GATT. It wanted to uphold GATT provisions, and when you take that into account, the case is easy.
2. Justice Thomas did us all a great service in an opinion otherwise best described as a Federalist Society Legal History Panel syllabus doing BDSM on itself. I can't imagine what we would do without this type of clarification:
"I refer to charges on imported goods as “duties,” not “tariffs” or “taxes.” When the government charged money for importing goods, that charge was historically called a custom or impost, each of which was a kind of “duty.” See N. Webster, A Compendious Dictionary of the English Language 75, 152 (1806); Art. I, §10, cl. 2. The word “tariff ” primarily referred to the schedule or table listing such duties, not the duties themselves. Webster, Compendious Dictionary, at 305. The word “tax,” although sometimes used loosely to refer to all kinds of monetary charges, more often “exclude[d]” duties on imports. R. Natelson, What the Constitution Means by “Duties, Imposts, and Excises”—and “Taxes” (Direct or Otherwise), 66 Case W. Res. L. Rev. 297, 306 (2015).
Thanks, CT. Well noted.
3. Kavanaugh. This guy. Here is the beginning of his legal analysis, with no edits or cuts:
I begin as always with the statutory text.
In 1941, a few days after Pearl Harbor, Congress first enacted the relevant language, “regulate . . . importation,” in an amendment to the 1917 Trading with the Enemy Act, known as TWEA. 55 Stat. 839; 40 Stat. 411. After that 1941 amendment, TWEA authorized the President to “regulate . . . importation” both during wartime and during peacetime national emergencies. Then, in 1977, Congress split TWEA into two separate statutes. As relevant here, Congress amended TWEA to authorize the President to “regulate . . . importation” during wartime only. 91 Stat. 1625. And Congress enacted a separate statute, IEEPA, that granted the President the power to “regulate . . . importation” during peacetime national emergencies. Id., at 1626.
So, for non-lawyers here, "beginning with the statutory text" means putting the full text of the statutory provision at issue on display, and then explicating its meaning. It does NOT mean to first go back in history 35 years before the text was written. It does NOT mean to highlight a word, use an ellipsis to skate over 16 words, before arriving at a second word and calling that the text.
This would get a failing grade in most law school writing classes (at some schools, of course, a B- being almost the equivalent of an F but I digress).
4. Gorsuch is just an asshole, period. The guy filled Scalia's seat. Maybe he thought it was the "dickhead" seat, but actually there was no requirement that he continue and even advance Scalia's douchiness.
Plus, Scalia had an excuse: his chair. Seriously, when I was clerking, the chair to my desk was the chair Scalia used from his time on the DC Circuit. There were various accounts of exactly how that chair got to my judge's chambers, but all agreed: it was his chair. I knew something was up on my first day (I was the last of the clerks to start) when the conservative clerks for a conservative judge informed me that they had chosen desks, and I was given the one with Scalia's chair. What's wrong with the chair, I asked. Nothing's wrong with it, exactly, they said. My spine disagreed with that assessment.
In fact, my spine has never forgiven me to this day. Sitting in that chair for three years (I think that was Scalia's tenure) could easily turn a person into a bitter ragged jurist for life. Gorsuch has no such excuse.
Maybe I will expound on this a bit more later.
1. The opinions here are disgraceful. I'm going to have to include the liberal justices here, though theirs are clearly the best of the lot.
This is a case about determining the intent of Congress when establishing "emergency' trade policy. The Justices look at dictionaries and centuries old cases and lapsed statutes and committee reports and NOT ONE TIME do they address the single most important determinant of Congress' intent in passing the 1977 statute: GATT. From what I can tell, GATT isn't even mentioned.
It's not simply that GATT was a binding treaty, which of course it was (still is, technically, but Trump killed it). It's not simply that there could have been consequences for violating its provisions (there were). It's that GATT was the single most important linchpin in US foreign economic policy throughout the entire period. Basically, U.S. foreign policy was a) anti-communist; b) pro-trade; and c) a bunch of other stuff of dwindling importance compared to those two. And if Congress had allowed the executive to upend the GATT, it would have seriously undermined the nation's economic agenda.
So the very first referent point to determine Congress' intent should have been GATT. It wanted to uphold GATT provisions, and when you take that into account, the case is easy.
2. Justice Thomas did us all a great service in an opinion otherwise best described as a Federalist Society Legal History Panel syllabus doing BDSM on itself. I can't imagine what we would do without this type of clarification:
"I refer to charges on imported goods as “duties,” not “tariffs” or “taxes.” When the government charged money for importing goods, that charge was historically called a custom or impost, each of which was a kind of “duty.” See N. Webster, A Compendious Dictionary of the English Language 75, 152 (1806); Art. I, §10, cl. 2. The word “tariff ” primarily referred to the schedule or table listing such duties, not the duties themselves. Webster, Compendious Dictionary, at 305. The word “tax,” although sometimes used loosely to refer to all kinds of monetary charges, more often “exclude[d]” duties on imports. R. Natelson, What the Constitution Means by “Duties, Imposts, and Excises”—and “Taxes” (Direct or Otherwise), 66 Case W. Res. L. Rev. 297, 306 (2015).
Thanks, CT. Well noted.
3. Kavanaugh. This guy. Here is the beginning of his legal analysis, with no edits or cuts:
I begin as always with the statutory text.
In 1941, a few days after Pearl Harbor, Congress first enacted the relevant language, “regulate . . . importation,” in an amendment to the 1917 Trading with the Enemy Act, known as TWEA. 55 Stat. 839; 40 Stat. 411. After that 1941 amendment, TWEA authorized the President to “regulate . . . importation” both during wartime and during peacetime national emergencies. Then, in 1977, Congress split TWEA into two separate statutes. As relevant here, Congress amended TWEA to authorize the President to “regulate . . . importation” during wartime only. 91 Stat. 1625. And Congress enacted a separate statute, IEEPA, that granted the President the power to “regulate . . . importation” during peacetime national emergencies. Id., at 1626.
So, for non-lawyers here, "beginning with the statutory text" means putting the full text of the statutory provision at issue on display, and then explicating its meaning. It does NOT mean to first go back in history 35 years before the text was written. It does NOT mean to highlight a word, use an ellipsis to skate over 16 words, before arriving at a second word and calling that the text.
This would get a failing grade in most law school writing classes (at some schools, of course, a B- being almost the equivalent of an F but I digress).
4. Gorsuch is just an asshole, period. The guy filled Scalia's seat. Maybe he thought it was the "dickhead" seat, but actually there was no requirement that he continue and even advance Scalia's douchiness.
Plus, Scalia had an excuse: his chair. Seriously, when I was clerking, the chair to my desk was the chair Scalia used from his time on the DC Circuit. There were various accounts of exactly how that chair got to my judge's chambers, but all agreed: it was his chair. I knew something was up on my first day (I was the last of the clerks to start) when the conservative clerks for a conservative judge informed me that they had chosen desks, and I was given the one with Scalia's chair. What's wrong with the chair, I asked. Nothing's wrong with it, exactly, they said. My spine disagreed with that assessment.
In fact, my spine has never forgiven me to this day. Sitting in that chair for three years (I think that was Scalia's tenure) could easily turn a person into a bitter ragged jurist for life. Gorsuch has no such excuse.
Maybe I will expound on this a bit more later.
superrific
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Hmm. Reading that, you might get the impression that Gorsuch adheres to precedent. Must depends on who is responsible for the "rules shifting from day to day."
I can only imagine the volume of class action litigation resulting from refunds to corporations. Maybe I'll be able to get that $5 voucher for my next Delta flight!
Kind of shocking from Gorsuch, but true.
Recognizing that the words don’t necessarily match the author, they are important words. We all like the president to have more power when he is “our” president. And some historic presidential overreaches have held up over time (Emancipation Proclamation).
But Gorsuch’s words should be taken to heart by MAGA. Letting a president do whatever he wants, whenever he wants, without a role for Congress, is not a good way to run a democracy.
superrific
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Another disappointment is that nobody answered the question from Kavanaugh, which he thought sufficiently clever to repeat three times. It has an easy answer, though. Let's start with the Kavanaugh's text (this is how it is done, btw):
Finally, all of that text, history, and precedent is further reinforced by two compelling pieces of context. First, interpreting IEEPA to exclude tariffs creates nonsensical textual and practical anomalies. The plaintiff sand the Court do not dispute that the President can act in declared emergencies under IEEPA to impose quotas or even total embargoes on all imports from a given country. But the President supposedly cannot take the far more modest step of conditioning those imports on payment of a tariff or duty. Textually, however, if quotas and embargoes are a means to regulate importation, how are tariffs not a means to regulate importation? Nothing in the text supports such an illogical distinction.
This is where Kav's Dunning-Kruger ignorance really shines. It's true that it might not make much sense if you ignore GATT. But since GATT was the single most important economic treaty the US has ever signed, and Congress has long been laser-focused on it, maybe we should consult it.
One of the main challenges of GATT is regulatory and emergency flexibility. The point of the treaty is to encourage countries to negotiate tariff "concessions" that are permanent and binding. That allows the huge years-long rounds of negotiating between hundreds of countries to be fruitful. But what if there's an emergency? What if a country decides that there's some important reason to renege on tariff commitments? Emergency is one: environmental protection is another that crops up. Well, GATT would never have signed if it too tightly constrained all national flexibility, so there are provisions for emergencies. But in that case, why won't countries make tariff concessions, then claim some hyped-up "emergency" as a way of rescinding those commitments. You know, exactly like Trump did.
And the answer that the GATT gives is this: if a nation has an emergency, fine, it can suspend trade. That is, it has to act like there's a genuine emergency. And maximalist solutions like "complete embargo" promote honesty. Since the economic effects of a complete embargo can be extremely disruptive, a nation won't take that step lightly. In a true emergency, like Pearl Harbor, yes. In a trumped-up non-emergency, it would not. The costs would be too high.
Thus, GATT says -- in an emergency, a country cannot mess with its tariff schedules. It's all or nothing, because duh. If a nation was allowed to declare an "emergency" that allowed them to raise their tariff rates by 500 basis points, but otherwise business-as-usual, then everyone might do that and the tens of millions of man-hours that went into the negotiation rounds would be wasted.
This is a full explanation of the policy that Kav claimed is nonsense. Gee, if only he had someone to explain this to him. Or if he had someone whose job it is to do research for the justice should he want it. Or if he had the benefit of articles written in publications called "law reviews" that report for a more general audience concentrated study on specific legal issues.
Fucking assclown.
Finally, all of that text, history, and precedent is further reinforced by two compelling pieces of context. First, interpreting IEEPA to exclude tariffs creates nonsensical textual and practical anomalies. The plaintiff sand the Court do not dispute that the President can act in declared emergencies under IEEPA to impose quotas or even total embargoes on all imports from a given country. But the President supposedly cannot take the far more modest step of conditioning those imports on payment of a tariff or duty. Textually, however, if quotas and embargoes are a means to regulate importation, how are tariffs not a means to regulate importation? Nothing in the text supports such an illogical distinction.
This is where Kav's Dunning-Kruger ignorance really shines. It's true that it might not make much sense if you ignore GATT. But since GATT was the single most important economic treaty the US has ever signed, and Congress has long been laser-focused on it, maybe we should consult it.
One of the main challenges of GATT is regulatory and emergency flexibility. The point of the treaty is to encourage countries to negotiate tariff "concessions" that are permanent and binding. That allows the huge years-long rounds of negotiating between hundreds of countries to be fruitful. But what if there's an emergency? What if a country decides that there's some important reason to renege on tariff commitments? Emergency is one: environmental protection is another that crops up. Well, GATT would never have signed if it too tightly constrained all national flexibility, so there are provisions for emergencies. But in that case, why won't countries make tariff concessions, then claim some hyped-up "emergency" as a way of rescinding those commitments. You know, exactly like Trump did.
And the answer that the GATT gives is this: if a nation has an emergency, fine, it can suspend trade. That is, it has to act like there's a genuine emergency. And maximalist solutions like "complete embargo" promote honesty. Since the economic effects of a complete embargo can be extremely disruptive, a nation won't take that step lightly. In a true emergency, like Pearl Harbor, yes. In a trumped-up non-emergency, it would not. The costs would be too high.
Thus, GATT says -- in an emergency, a country cannot mess with its tariff schedules. It's all or nothing, because duh. If a nation was allowed to declare an "emergency" that allowed them to raise their tariff rates by 500 basis points, but otherwise business-as-usual, then everyone might do that and the tens of millions of man-hours that went into the negotiation rounds would be wasted.
This is a full explanation of the policy that Kav claimed is nonsense. Gee, if only he had someone to explain this to him. Or if he had someone whose job it is to do research for the justice should he want it. Or if he had the benefit of articles written in publications called "law reviews" that report for a more general audience concentrated study on specific legal issues.
Fucking assclown.
ChileG
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But instead what you will hear in return from MAGA is, “We aren’t a Democracy idiot libtard, we are a Constitutional Republic!”
superrific
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Is it too much to ask for Gorsuch's words to be taken to heart by Gorsuch?
superrific
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It is also important to remember that Gorsuch wrote that paragraph in an opinion otherwise devoted to praising the major questions doctrine, which almost almost always functions as a repudiation of those hard "deliberations" and "compromises" made by Congress.
Gorsuch is smarminess in human form. He doesn't just mansplain or whitesplain. He Neilsplains. If he wasn't the stupidest or second-stupidest member of the court, maybe it wouldn't be so bad. But I, for one, would not allow myself to be lectured at with cliched abstractions wholly divorced from reality or the issues under review.