You Do Not, Under Any Circumstances, Gotta Hand It To Chief Justice Roberts
Ditto for Barrett and Gorsuch.
No cheers for Chief Justice Roberts!
After Friday’s tariff ruling, the usual suspects chimed in to glaze the three conservatives who ruled that Trump can’t impose a constantly shifting tariff regime based on whichever country he’s trying to stick up on a given day.
Adam Liptak, chief legal affairs correspondent at the New York Times called it “a declaration of independence,” congratulating the “controlled, cerebral chief justice” for staring down “the biting, brazen president.”
Times opinion columnist David French suggested that Learning Resources v. Trump “may prove to be the most important Supreme Court decision this century.”
“On this day the presidency is stuffed back into its box. On this day the separation of powers prevails. And on this day the Constitution holds,” he gushed.
Over at the Wall Street Journal, the Editorial Board celebrated the “monumental vindication of the Constitution’s separation of powers,” winking that “You might call it the real tariff Liberation Day.”
Only George Will at the Washington Post tempered his criticism. While lauding the ruling as a “defibrillator to Congress,” he chided conservatives for “something the court has been dilatory about elaborating and timid about enforcing: a nondelegation doctrine.” Please, Mister Manly Chief Justice, enforce your made-up “major questions doctrine” harder!
No doubt the Chief Justice appreciates the lovefest, but his adoring fans should take a breath. Trump’s claim that he can shout “Emergency!” and steal Congress’s tariff power was stupid a year ago when the first challenges were filed. It was stupid in May, when a three-judge panel of the Court of International Trade declared them unlawful, for the exact same reasons just reached by the Supreme Court. It was stupid in August when the Federal Circuit agreed, but sent it back to the trial court to figure out what the hell to do after SCOTUS blew up nationwide injunctions in Trump v. CASA. And it was stupid in September when the Supreme Court granted cert, effectively staying the CIT’s injunction and allowing Trump to collect the illegal levies.
At any point, the justices could have put a stop to this nonsense. But, faced with the choice to tell the president “no” in the first instance or let him steal hundreds of billions of dollars, Chief Justice Roberts said, “Eh, let’s go with door number two. Seems like the safer option.”
American taxpayers footed the bill for this fecklessness, as importers passed the cost on to consumers. And because the justices dithered, presumably to let Justice Kavanaugh polish his 63-page turd of a dissent, the meter kept running for four months.
After the opinion came down Friday, Trump gave a rambling press conference, in which he called the majority justices “lap dogs for the RINOs and the radical left Democrats” and praised Kavanaugh, “whose stock has gone so up, you have to see, I’m so proud of him.” There was also a lengthy airing of his fantasy of being kissed by a steel worker.
The president did say one rational thing, though, in response to a question about whether the Treasury will issue refunds to companies that paid the tariffs.
“They take months and months to write an opinion and they don’t even discuss that point,” he groused. “Wouldn’t you think they would have put one sentence in there saying that keep the money or don’t keep the money, right? I guess it has to get litigated for the next two years.”
Why, yes, you would … if you weren’t completely preoccupied with slobbering all over the justices for finally handing in their homework. This omission guarantees that companies who paid these illegal levies won’t get their money back without an expensive fight.
And if they do, it will be a windfall for their shareholders, not the consumers who paid for those tariffs in increased costs. It’s functionally a transfer of wealth from consumers to American businesses, with an assist from a demented despot.
This is not the day that Chief Justice Roberts became a real jurist. This is three conservative justices who invited the president to pick consumers’ pockets for a full year before eventually telling him to knock it off — once they’d ensured that the chaotic fallout would persist for the rest of his term. We will not be applauding like trained seals because the person who left the bath running and flooded our collective house eventually wandered back and turned off the taps.
The most important Supreme Court decision this century was Trump v. US. Roberts, Barrett, and Gorsuch all flubbed that one, agreeing that the president can do crimes with impunity. The fact that one time they actually did their damn jobs is no cause for celebration. It’s the bare, bloody minimum.
I agree wholeheartedly that US v Trump is the most important decision, and that the praise of this tariff decision is basically giving SCOTUS credit for eventually doing the right thing after exhausting all of its other options.
But my main takeaway from the tariff decision is one I have not seen anyone else make: Neil Gorsuch is full of crap!
I base that on his disagreement with Kagan.
Who are the 2 most commited textualist justices on the court? Neil Gorsuch would say that he is Mr. Textualism. But Barrett might be more of a textualist than him. After those two, I have no idea but I would probably say Kagan.
Anyway, in her concurrence, Kagan ibasically says that all you need to get the the majority's judgment is the text of the statue (she even has a fun little oblique reference to "99 problems" in there). And you have Gorsuch writing his massive concurrence defense of MQD, lashing out at Kagan for purporting to rely solely on the text, and, specifically, on the lack of the words "tariff" and "tax" or any other words related to raising revenue in the text.
And yet, somehow, you have the conservative wing's most avowedly textualist justice arguing that the text aline is not enough to reach the majority judgment, some additonal special sauce called the MQD is needed in order to get there.
In other words:
1. Gorsuch is telling on himself. He purports to be a textualist, but in this case where textualism is enough to get him to the judgment he reached, he refuses to rely on textualism alone. I find this interesting because Gorsuch is normally happy to JOIN opinions not based in textualism, but he is usually unwilling to WRITE opinions not based on textualism. But here, he does.
2. The MQD is exactly what we all thought it was: a conservative policy veto for use agaisnt Democratic Presidents. This wolf comes up as a wolf, and Gorsuch's burn-book concurrence was him expressing his frustration that the rest of the court would not join him in dressing the wolf in sheep's clothing.
Hmmmm...over a decade ago, the Republicans said not think of Trump when voting for him, but think about voting in a new member of SCOTUS. See the result