Finally (!) finished reading the 170-page (!!) IEEPA/Trump tariffs case, Learning Resources v. Trump. Yes, I’m glad that the immediate result was the Supreme Court clearly invalidating a Trump effort to assert dictatorial power. But the opinions in the case as a group showcase the mediocrity of the Roberts Court as a whole. #LawFedi 1/
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Roberts, writing for the Court, failed to deliver a crisp holding and argument, which is the way to tell a would-be dictatorial, anti-constitutional-democracy President what’s what. 2/
All Roberts should have had to say: the text of IEEPA, read against long-established Congressional practice in the area of delegating any tariff authority to the President, makes plain that Congress did not authorize the President to unilaterally impose tariffs in peacetime. The Constitution assigns this authority to Congress. Therefore, tariffs imposed by Trump under IEEPA fail. 3/
But because Gorsuch and Barrett had axes to grind, and Roberts needed to bring at least one of them on board, he decided to wade into “the major question doctrine” and go on about statutory interpretation as if this is some sort of deep hermenuetic enterprise. 4/
Gorsuch, Barrett, and Kavanaugh are in an ongoing war to be the next Scalia: the Conservative Justices’ Statutory Construction Guru (the CJSCG ©️™️). This position enables the holder to write as if values, including political and ethical ones, are not driving her decisions, nay do not even her mind unconsciously as they makes them. Only words and value-free application of value-free tools of statutory construction determine the positions the CJSCG, to be then decreed by the Court. 5/
Rather than focus on the substance and foundationally constitutional significance of the outcome of this case, Roberts’ opinion set the stage for Gorsuch, Barrett, and Kavanaugh to reduce it to a battle in their War for the CJSCG Title. Consider, for example, Gorsuch’s concurrence. It takes him two sentences to say he concurs with the Court’s essential point (see my post 3). It then takes him scores of pages to pontificate about the statutory interpretation that he has undertaken to agree. 6/
Along the way, Gorsuch not only has to connect all of this to his insistence that there is such a thing as “the major questions doctrine” and this case CANNOT be decided without it; so, he tells Kagan, Sotomayor, and Jackson, anybody in the majority is necessarily committed to the existence of the major questions doctrine. 7/
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