A chance to create the appearance of independence

Mark Joseph Stern is among the observers who sees Trump as nearly certain to lose the challenge to his unilateral tariffs:

Going into Supreme Court arguments over President Donald Trump’s tariffs on Wednesday, it was genuinely difficult to guess how the justices would rule. Within minutes, that suspense vanished. The hearing was a bloodbath for the Trump administration: Six justices lined up to bash the Justice Department’s defense of the tariffs, barely disguising their annoyance with the government’s barrage of blustery nonsense.

Let me pause here to note that while generally the quality of advocacy in politically salient cases at the Supreme Court, doesn’t really matter because the outcome is essentially pre-determined, in cases where the the justices are cross-pressured or have weaker-than-unusual ex ante preferences it can. (Donald Verelli’s much-mocked-at-the-time decision to defend the requirement to carry insurance as a tax is one example.) Normally, the Trump administration submitting a brief with both the content and form of a Steve Bannon monologue would be immaterial, but in a case like this it could matter. Asserting that trillions of dollars of taxes are necessary for the United States not to be a “weak country” might impress the median Joe Rogam fan but is not going to impress more-skeptical-than-usual Supreme Court justices.

John Sauer, who sounded RFK Jr. recovering from a 10-day coke bender, wasn’t much better:

At the halfway point, it would’ve saved everyone time had the court just huddled, announced its decision from the bench, and recessed early for lunch. Trump’s signature trade policy—which he expected to raise trillions of dollars for him to use as he wished—looks dead on arrival at SCOTUS. We have spent 10 months waiting to see if, and when, this court would set a limit on Trump’s power. Perhaps we should’ve guessed that its extraordinary deference to this president could be outweighed only by its hatred of taxes.

Wednesday’s case, Learning Resources v. Trump, marks a direct challenge to Trump’s unprecedented, unilateral imposition of global tariffs on almost every foreign nation. Although the Constitution vests the tariff power in Congress, not the president, the Justice Department asserts that Congress delegated this authority to the executive branch. Specifically, it cites a 1977 law called the International Emergency Economic Powers Act—a strange choice, since that statute does not mention tariffs, customs, duties, or anything else that would imply a license for taxation. Solicitor General John Sauer told SCOTUS that IEEPA permits tariffs because it allows the president to “regulate” foreign “importation” to “deal with” an “unusual and extraordinary threat” abroad. “Regulation,” Sauer argued, includes tariffs, and the word “threat” is capacious enough to include fentanyl smuggling and even our trade deficit (which is, in reality, not a problem at all).

From the outset, a majority of justices weren’t buying what Sauer was selling. He stumbled early by irritating Chief Justice John Roberts with a heavy-handed invocation of Dames & Moore v. Regan, a 1981 decision about IEEPA. Roberts, who may have helped draft the opinion as a clerk, was plainly displeased by Sauer’s distortion of it. “That argument surprises me,” he told Sauer sternly, before reeling off passages from the ruling that undercut Trump’s position—including its warning that the case carries “little precedential value for subsequent cases.” With audible derision, Roberts concluded: “I don’t understand how you can get as much out of Dames & Moore as you’re trying to get.”

The solicitor general whiffed again with Roberts when he argued that the “major questions doctrine” does not apply to Trump’s tariffs. This doctrine bars the president from enacting an initiative of “vast economic or political significance” without explicit congressional authorization. Sauer insisted that it doesn’t apply here because tariffs implicate the president’s “foreign affairs” authority rather than domestic policy, giving him heightened constitutional discretion to do what he pleases. The chief was not convinced.

“It seems that it might be directly applicable,” he lectured Sauer. “You have a claimed source, IEEPA, that had never before been used to justify tariffs. No one has argued that it does till this particular case.” Yet now Trump claims it allows him to “impose tariffs on any product from any country in any amount for any length of time.” The “basis for the claim” of this “major authority,” Roberts concluded, “seems to be a misfit.”

One critical moment, as MJS says, is Gorsuch pressing Katyal to concede that the text alone was not sufficient to hold the tariffs ultra vires, and the major questions doctrine was necessary:

It sounded as if this trio was trying to figure out how they’ll rule against Trump: Must they invoke the major questions doctrine, as Gorsuch suggested to Katyal? Or can they rest a decision on the plain text alone? For Roberts, the case might present an irresistible opportunity to get the liberals on board with his very recently invented doctrine, whose only use until now has been to box in President Joe Biden. If he assigns himself the opinion of the court, he can leave them with little choice but to hold their noses and sign onto it for the sake of forming a majority. That would be a real coup for the chief: pressuring the liberals into validating a theory that they’ve harshly rejected for years, and doing so in a way that lets him claim it as an evenhanded and legitimate tool, not simply one neat trick to reject all Democratic presidents’ policies.

Political development types have long pointed out that one limitation of the “attitudinal model” is that while Supreme Court votes have strong ideological patterns, what it means to be “conservative” or “liberal” is not a fixed property. Both “the president cannot impose trillions of dollars in taxes on American consumers and businesses for transparently farcical reasons” and “if Donald Trump does it, it’s not illegal” are both potentially “conservative” positions. Like most Republican elites, the Supreme Court’s Republicans have drifted strongly in the direction of the latter, in part because this rarely involves any actual cross-pressure because of Trump’s commitment to orthodox Republicanism. But this case seems to be pushing them too far, and as Stern says allowing the justices to pretend that “major questions” doctrine is an actual thing is precisely the kind of capital-building move John Roberts in particular understands. And as with Kennedy’s queer rights opinions, signing on to this might indeed be the price extracted from the court’s liberals. It’s not not optimal, but it’s better than the alternative.

…as Tom Hilton notes in comments, this is also a case where the partisan interests of the Republican Party and what Trump wants are in substantial conflict, another cross-pressure that will probably encourage most of the justices to rediscover the legal restraints on the executive branch.