I have no doubt that Gorsuch would apply his expressed rationale across the board no matter who were president. For him, separation of powers is everything and anything that even resemble a tie goes to Congress. With respect to Roberts, one can only hope that he would apply the same exacting standard of what constitutes express delegation in other situations involving other presidents. (I have serious doubts about that.) Gorsuch also does a great job exposing the blatant intellectual dishonesty of the three Norns of SCOTUS (Kagan, Sotomayor and Jackson) who are constantly trying to weave a progressive and dystopian future for us all with their result driven rulings. Although I hate the result, I’m actually on the fence (between Gorsuch and the dissent) on this one.
Separation of powers is important, but the way to defend separation of powers is to establish the IEEPA is unconstitutional.
There’s a much stronger argument for the IEEPA’s unconstitutionality than there is for the Liberation Day tariffs’ invalidity.
For Gorsuch, that’s where his position fails: the ruling not only does not point to the IEEPA itself being unconstitutional, Roberts’ incoherent opinion arguably gives a President an even stronger hand with respect to more draconian trade measures—bans, embargoes, and the like. All this ruling does is make the fairly asinine assertion that tariffs are somehow not a form of regulation, even though that flies in the face of considerable legislative and judicial precedent.
Just on the basis of stare decisis, Gorsuch’s position is untenable, but if the true priority is separation of powers, Gorsuch undermined that principle with this vote.
As Chip Roy pointed out, Congress made a mess of the IEEPA, and the court (including Gorsuch) made it worse.
Moreover, if the prevailing logic behind the 6-3 ruling was Orange Man Bad, as Gorsuch claims in his concurrence, then he’s going along with a blatantly political ruling.
That’s not separation of powers. That’s the Court stepping into the political lanes of the Executive and the Legislative.
Gorsuch can’t defend separation of powers between the Executive and Legislative by endorsing interference in those powers by the Judiciary.
Whether an emergency is "real" or "fake" is a fair question, but it is a policy question.
For better or worse, what the IEEPA requires is simply that an emergency be declared. The statutory language for an emergency invocation under the IEEPA is nearly identical to that for the National Emergencies Act, which has itself been sustained by the Supreme Court.
Congress has, with the IEEPA and the National Emergencies Act, decided to authorize the President to declare emergencies as he deems necessary. There are no objective criteria provided which these emergencies must meet, merely a list of "findings" which must be articulated, which act to give shape to the declared emergency.
Does such grant of authority ultimately violate the "nondelegation doctrine", by which the Court has long held that Congress is Constitutionally precluded from delegating core legislative functions and powers to the Executive? To date, the Court has said it does not.
The IEEPA may be good law or bad law, depending on one's political persuasion, but what is absolutely certain is that it is the law. That much has been emphatically affirmed even by Roberts' disjointed and lunatic "opinion".
All Presidential activity under the IEEPA is subject to Congressional review, and the law itself may be rescinded by Congress if it should muster the institutional will and discipline to do so. Many will argue that it should do so. It has thus far declined to do so.
If the Liberation Day tariffs constitute an abuse of authority, then Congress' bloodless acceptance of the tariffs constitutes dereliction of duty. However, if the law is valid and the Liberation Day tariffs conform to the law--which they do--the Court has no further say in the matter. It is not on the Court to deal with Congressional dereliction of duty, but the voters.
It may be fairly said there is a much stronger argument to be made for the unconstitutionality of the IEEPA than the invalidity of the Liberation Day tariffs.
But this is where the Court failed miserably in its duty. If the IEEPA language is flawed, then the law is unconstitutional and therefore void in its entirety.
I might or might not have agreed with the Court had they ruled the IEEPA unconstitutional, but I am fairly certain that ruling would have produced a more continent, more coherent, and more defensible opinion than what we got from Roberts.
I can’t argue the law, but it certainly seem rasonable to me that Congress never had this kind of use of the statute even if the words do not explicityy forbid it. I can see granting authoity to completely prohibit some novel energent importation but not to just place a duty one it. That seems incompatible with the concept of ”emergency.” The other thing is that an “emegency” seems ought to be time limited, in principle for the time needed for Congress to act.
As Kavanaugh pointed out in his dissent, Nixon used the predecessor statute to the IEEPA, the Trading With The Enemy Act, to unilaterally impose tariffs in 1971, citing the same "regulate importation" language that Roberts found objectionable in the IEEPA. Nixon's tariffs were challenged and the Court upheld them.
Given that history, it is patently absurd that the Liberation Day tariffs are objectionable, given they are not at all unprecedented.
As regards what constitutes an emergency or should constitute an emergency, as Chip Roy observed earlier, Congress has made a pig's breakfast of the IEEPA with its vague and imprecise language (and arguably has done the same with the companion legislation to the IEEPA, the National Emergencies Act). That is a mess only the Congress can remedy. The Court plays no role in that, nor should it.
Your conceptualization of what an emergency "should be" has merit, and arguably should be the standard written into the statutes. At present, the statutory language in both the IEEPA and the NEA establishes that an emergency is whatever a President says is an emergency.
I'm not an American. From where I sit the problem hinges on whether there is an Emergency or not. If there really is an emergency, then an executive may need to ignore or circumvent the normal rule of law just to get what is needed done in an urgent fashion. If there is no emergency, then the declaration of one is tyrranical, and sets the dangerous precedence of "Declaring an Emergency" to be the first act of all Presidents. The court seems a reasonable enough place for deciding whether a state of Emergency existed at all. And since Justice Kavanaugh's dissenting opinion listed exactly how the executive could continue to get the tariffs it wants without the IEEPA, this looks like a win for everybody from over here.
It also looks, from over here, that the real emergency is that the Congress is no longer doing its job of legislating, and is leaving things that should be a matter of law to be done through regulations written by unelected bureacrats. That's a different, but no less potent source of tyrrany. But I have no clue what it is in the American system of checks and balances that is supposed to discipline a rogue or ineffectual Congress. Can the Supreme Court order that Congress sit down and at least attempt to legislate on a matter? or what?
Laura, your point regarding our congress is spot on. They have neutered themselves and have nearly zero impact except to spend. This must be remedied, but I’m not sure how, or if it can be.
What this country needs desperately is political revival akin to a religious revival.
We need people to remember that the Constitution is still the foundation of our government and the bedrock of our civic society.
We need people to remember that the explicit thrust of the Constitution is to make We The People the font of all political authority. We are not the servants of the State but its declared masters.
We need people to desire to reclaim that apex position in government for ourselves. That means not merely voting, but engaging with government at all levels, from school boards and city councils to our elected representatives in Congress. That means taking time to go to the school board meetings, the city council meetings, the town halls held by various elected officials, and exercise our inalienable rights to speak, be heard, and petition for redress of grievance.
If people will remember these things, and desire the political supremacy over government that is ours by inalienable right, we might yet restore government to its proper Constitutional confines.
The question of whether or not there is an "emergency" itself hinges on what qualifies as an emergency.
From a policy perspective, one could argue with substance that a potential defect of the IEEPA is that it provides no real parameters for qualifying an emergency. The sole requirement, per Section 201 of the IEEPA (50 USC §1701) is that the President declare an emergency.
-----
(a) Any authority granted to the President by section 1702 of this title may be exercised to deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States, if the President declares a national emergency with respect to such threat.
(b) The authorities granted to the President by section 1702 of this title may only be exercised to deal with an unusual and extraordinary threat with respect to which a national emergency has been declared for purposes of this chapter and may not be exercised for any other purpose. Any exercise of such authorities to deal with any new threat shall be based on a new declaration of national emergency which must be with respect to such threat.
This language is nearly identical to that used to empower a President to declare an emergency under the National Emergencies Act (PL94-412, 50 USC §§1601-1651), which has withstood repeated judicial scrutiny and was most notably used in Presidential Proclamation 9994 to declare an emergency during the 2020 COVID Pandemic Panic.
While as a matter of policy the wisdom of giving a President broad mandate for unilateral action under an ill-defined rubric of "emergency" declaration is at best problematic, the legal and Constitutional reality is that this is what Congress has done multiple times. America's courts are not empowered to determine whether laws passed by Congress are "good", or even good policy, but merely to adjudicate whether an act of Congress conforms to the text of the Constitution, or an act of the President conforms to both the Constitution and relevant statutory language used by Congress in passing various acts. So long as boundaries of Constitution and of law are not violated, the courts have no authority to overrule either the President or the Congress.
Your point about Congress being derelict in its duty is one that is shared by a great many Americans, including yours truly. Both the National Emergencies Act and the IEEPA remain under Congressional review, and any Presidential act taken under the auspices of either may be countermanded by Congress.
It is worth pointing out that Presidential power stems largely from the simple requirement within Article 2 Section 3 of the Constitution that "he shall take Care that the Laws be faithfully executed". Presidential Executive Orders and Proclamations are bounded by the laws enacted through Congress. Any specific authority wielded by the President, particularly in domestic matters, must come from Congress and must be grounded in an act of Congress. Much of the language we see in Presidential Executive Orders and Proclamations is there to establish the legal foundation for the power(s) a President intends to utilize.
Congress can delegate powers and authorities to the President, and has indisputably done so quite often throughout American history. It has also seen fit to circumscribe the powers and authorities of the President multiple times throughout American history. While we often speak touchingly about America's three "co-equal" branches of government, the Constitutional reality is that Congress can on its own countermand nearly any order given by the President, if it can summon the institutional will and discipline to do so.
In recent decades especially, Congress has become nothing if not profoundly undisciplined, choosing instead to pawn most of the heavy lifting of national governance onto the Executive Branch, leaving the Judicial Branch to provide the necessary guardrails delimiting Presidential powers.
Perversely, I think it would be fun to sit on the Supreme Court and actually author an opinion or two.
I’m just cocky and arrogant enough to think I’d do a decent job of it. I know I would do much better than Roberts did with this hot mess of judicial nonsense!
There are no formal qualifications stated in the Constitution for nomination to the Supreme Court. Strictly speaking all one needs to sit on the Court is nomination by the President and a majority vote by the Senate. Strictly speaking one need not even be a member of the bar.
I have no doubt that Gorsuch would apply his expressed rationale across the board no matter who were president. For him, separation of powers is everything and anything that even resemble a tie goes to Congress. With respect to Roberts, one can only hope that he would apply the same exacting standard of what constitutes express delegation in other situations involving other presidents. (I have serious doubts about that.) Gorsuch also does a great job exposing the blatant intellectual dishonesty of the three Norns of SCOTUS (Kagan, Sotomayor and Jackson) who are constantly trying to weave a progressive and dystopian future for us all with their result driven rulings. Although I hate the result, I’m actually on the fence (between Gorsuch and the dissent) on this one.
Separation of powers is important, but the way to defend separation of powers is to establish the IEEPA is unconstitutional.
There’s a much stronger argument for the IEEPA’s unconstitutionality than there is for the Liberation Day tariffs’ invalidity.
For Gorsuch, that’s where his position fails: the ruling not only does not point to the IEEPA itself being unconstitutional, Roberts’ incoherent opinion arguably gives a President an even stronger hand with respect to more draconian trade measures—bans, embargoes, and the like. All this ruling does is make the fairly asinine assertion that tariffs are somehow not a form of regulation, even though that flies in the face of considerable legislative and judicial precedent.
Just on the basis of stare decisis, Gorsuch’s position is untenable, but if the true priority is separation of powers, Gorsuch undermined that principle with this vote.
As Chip Roy pointed out, Congress made a mess of the IEEPA, and the court (including Gorsuch) made it worse.
Moreover, if the prevailing logic behind the 6-3 ruling was Orange Man Bad, as Gorsuch claims in his concurrence, then he’s going along with a blatantly political ruling.
That’s not separation of powers. That’s the Court stepping into the political lanes of the Executive and the Legislative.
Gorsuch can’t defend separation of powers between the Executive and Legislative by endorsing interference in those powers by the Judiciary.
Scotus should hand tariff making back to Congress in the other cited cases as well, but a fake "emergency" is the most egregious abuse.
Whether an emergency is "real" or "fake" is a fair question, but it is a policy question.
For better or worse, what the IEEPA requires is simply that an emergency be declared. The statutory language for an emergency invocation under the IEEPA is nearly identical to that for the National Emergencies Act, which has itself been sustained by the Supreme Court.
Congress has, with the IEEPA and the National Emergencies Act, decided to authorize the President to declare emergencies as he deems necessary. There are no objective criteria provided which these emergencies must meet, merely a list of "findings" which must be articulated, which act to give shape to the declared emergency.
Does such grant of authority ultimately violate the "nondelegation doctrine", by which the Court has long held that Congress is Constitutionally precluded from delegating core legislative functions and powers to the Executive? To date, the Court has said it does not.
The IEEPA may be good law or bad law, depending on one's political persuasion, but what is absolutely certain is that it is the law. That much has been emphatically affirmed even by Roberts' disjointed and lunatic "opinion".
All Presidential activity under the IEEPA is subject to Congressional review, and the law itself may be rescinded by Congress if it should muster the institutional will and discipline to do so. Many will argue that it should do so. It has thus far declined to do so.
If the Liberation Day tariffs constitute an abuse of authority, then Congress' bloodless acceptance of the tariffs constitutes dereliction of duty. However, if the law is valid and the Liberation Day tariffs conform to the law--which they do--the Court has no further say in the matter. It is not on the Court to deal with Congressional dereliction of duty, but the voters.
if the law is valid and the Liberation Day tariffs conform to the law--which they do--the Court has no further say in the matter.
Big IF! :)
It may be fairly said there is a much stronger argument to be made for the unconstitutionality of the IEEPA than the invalidity of the Liberation Day tariffs.
But this is where the Court failed miserably in its duty. If the IEEPA language is flawed, then the law is unconstitutional and therefore void in its entirety.
I might or might not have agreed with the Court had they ruled the IEEPA unconstitutional, but I am fairly certain that ruling would have produced a more continent, more coherent, and more defensible opinion than what we got from Roberts.
I can’t argue the law, but it certainly seem rasonable to me that Congress never had this kind of use of the statute even if the words do not explicityy forbid it. I can see granting authoity to completely prohibit some novel energent importation but not to just place a duty one it. That seems incompatible with the concept of ”emergency.” The other thing is that an “emegency” seems ought to be time limited, in principle for the time needed for Congress to act.
As Kavanaugh pointed out in his dissent, Nixon used the predecessor statute to the IEEPA, the Trading With The Enemy Act, to unilaterally impose tariffs in 1971, citing the same "regulate importation" language that Roberts found objectionable in the IEEPA. Nixon's tariffs were challenged and the Court upheld them.
Given that history, it is patently absurd that the Liberation Day tariffs are objectionable, given they are not at all unprecedented.
As regards what constitutes an emergency or should constitute an emergency, as Chip Roy observed earlier, Congress has made a pig's breakfast of the IEEPA with its vague and imprecise language (and arguably has done the same with the companion legislation to the IEEPA, the National Emergencies Act). That is a mess only the Congress can remedy. The Court plays no role in that, nor should it.
Your conceptualization of what an emergency "should be" has merit, and arguably should be the standard written into the statutes. At present, the statutory language in both the IEEPA and the NEA establishes that an emergency is whatever a President says is an emergency.
And so here we are.
I'm not an American. From where I sit the problem hinges on whether there is an Emergency or not. If there really is an emergency, then an executive may need to ignore or circumvent the normal rule of law just to get what is needed done in an urgent fashion. If there is no emergency, then the declaration of one is tyrranical, and sets the dangerous precedence of "Declaring an Emergency" to be the first act of all Presidents. The court seems a reasonable enough place for deciding whether a state of Emergency existed at all. And since Justice Kavanaugh's dissenting opinion listed exactly how the executive could continue to get the tariffs it wants without the IEEPA, this looks like a win for everybody from over here.
It also looks, from over here, that the real emergency is that the Congress is no longer doing its job of legislating, and is leaving things that should be a matter of law to be done through regulations written by unelected bureacrats. That's a different, but no less potent source of tyrrany. But I have no clue what it is in the American system of checks and balances that is supposed to discipline a rogue or ineffectual Congress. Can the Supreme Court order that Congress sit down and at least attempt to legislate on a matter? or what?
Laura, your point regarding our congress is spot on. They have neutered themselves and have nearly zero impact except to spend. This must be remedied, but I’m not sure how, or if it can be.
What this country needs desperately is political revival akin to a religious revival.
We need people to remember that the Constitution is still the foundation of our government and the bedrock of our civic society.
We need people to remember that the explicit thrust of the Constitution is to make We The People the font of all political authority. We are not the servants of the State but its declared masters.
We need people to desire to reclaim that apex position in government for ourselves. That means not merely voting, but engaging with government at all levels, from school boards and city councils to our elected representatives in Congress. That means taking time to go to the school board meetings, the city council meetings, the town halls held by various elected officials, and exercise our inalienable rights to speak, be heard, and petition for redress of grievance.
If people will remember these things, and desire the political supremacy over government that is ours by inalienable right, we might yet restore government to its proper Constitutional confines.
If.
The question of whether or not there is an "emergency" itself hinges on what qualifies as an emergency.
From a policy perspective, one could argue with substance that a potential defect of the IEEPA is that it provides no real parameters for qualifying an emergency. The sole requirement, per Section 201 of the IEEPA (50 USC §1701) is that the President declare an emergency.
-----
(a) Any authority granted to the President by section 1702 of this title may be exercised to deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States, if the President declares a national emergency with respect to such threat.
(b) The authorities granted to the President by section 1702 of this title may only be exercised to deal with an unusual and extraordinary threat with respect to which a national emergency has been declared for purposes of this chapter and may not be exercised for any other purpose. Any exercise of such authorities to deal with any new threat shall be based on a new declaration of national emergency which must be with respect to such threat.
-----
https://www.law.cornell.edu/uscode/text/50/1701
This language is nearly identical to that used to empower a President to declare an emergency under the National Emergencies Act (PL94-412, 50 USC §§1601-1651), which has withstood repeated judicial scrutiny and was most notably used in Presidential Proclamation 9994 to declare an emergency during the 2020 COVID Pandemic Panic.
https://www.brennancenter.org/our-work/research-reports/declared-national-emergencies-under-national-emergencies-act
While as a matter of policy the wisdom of giving a President broad mandate for unilateral action under an ill-defined rubric of "emergency" declaration is at best problematic, the legal and Constitutional reality is that this is what Congress has done multiple times. America's courts are not empowered to determine whether laws passed by Congress are "good", or even good policy, but merely to adjudicate whether an act of Congress conforms to the text of the Constitution, or an act of the President conforms to both the Constitution and relevant statutory language used by Congress in passing various acts. So long as boundaries of Constitution and of law are not violated, the courts have no authority to overrule either the President or the Congress.
Your point about Congress being derelict in its duty is one that is shared by a great many Americans, including yours truly. Both the National Emergencies Act and the IEEPA remain under Congressional review, and any Presidential act taken under the auspices of either may be countermanded by Congress.
It is worth pointing out that Presidential power stems largely from the simple requirement within Article 2 Section 3 of the Constitution that "he shall take Care that the Laws be faithfully executed". Presidential Executive Orders and Proclamations are bounded by the laws enacted through Congress. Any specific authority wielded by the President, particularly in domestic matters, must come from Congress and must be grounded in an act of Congress. Much of the language we see in Presidential Executive Orders and Proclamations is there to establish the legal foundation for the power(s) a President intends to utilize.
Congress can delegate powers and authorities to the President, and has indisputably done so quite often throughout American history. It has also seen fit to circumscribe the powers and authorities of the President multiple times throughout American history. While we often speak touchingly about America's three "co-equal" branches of government, the Constitutional reality is that Congress can on its own countermand nearly any order given by the President, if it can summon the institutional will and discipline to do so.
In recent decades especially, Congress has become nothing if not profoundly undisciplined, choosing instead to pawn most of the heavy lifting of national governance onto the Executive Branch, leaving the Judicial Branch to provide the necessary guardrails delimiting Presidential powers.
Peter. Thank you for this response.
You are most welcome!
We need you on the SC. PNK for SC!
Perversely, I think it would be fun to sit on the Supreme Court and actually author an opinion or two.
I’m just cocky and arrogant enough to think I’d do a decent job of it. I know I would do much better than Roberts did with this hot mess of judicial nonsense!
There should be at least one non lawyer on every SC, just to get an Everyman perspective and cut down on the lawyerese.
That is an interesting concept.
There are no formal qualifications stated in the Constitution for nomination to the Supreme Court. Strictly speaking all one needs to sit on the Court is nomination by the President and a majority vote by the Senate. Strictly speaking one need not even be a member of the bar.
Excellent post, that fills in some blanks!
Bravo, Peter, for once again shining with your astoundingly good legal mind!
So, we’ve got several Supreme Court Justices with Trump Derangement Syndrome. What’s the solution, besides waiting for them to die off?