Guest post prediction: Trump will be collateral damage.

Prediction: The Supreme Court will block Trump on tariffs.

The Supreme Court has a battle plan. The court's real goal isn't to protect Trump at all costs.

The Supreme Court majority wants to end the bureaucratic state.

My amicus brief in the tariff case argues that the Supreme Court is considering a constitutional showdown. Can Trump get away with assuming Congress' power to tax?

Maybe everything isn't always about Trump.

Guest post author Conde Cox suggests that the Supreme Court tariff case is really about the regulatory state. The court would be affirming Congress' power with the cynical realization that they would not be increasing the capability of government. They are reducing it. Their decision would require Congress to write the specific laws to guide federal agencies. Due to partisan division, lobbying, campaign contributions, and lack of subject-area expertise, Congress will be totally incompetent to do that. Therefore, regulations on the environment, the financial industry, taxes, labor safety, and indeed nearly everything, will fall away.

That is the plan. It is clever and strategic.

Cox is an expert in the field of bankruptcy/creditor-debtor rights/insolvency/reorganization, He is immediate past president of the Federal Bar Association — Oregon Chapter. He has been rated for many years as a Thomson-Reuters "Super Lawyer" in the field of business bankruptcy. He is also an expert on fine wine and teaches classes on the subject.

Cox

Guest Post by Conde Cox

I listened to the lawyers ramble on for over two-and-a-half hours about whether the Congress intended to delegate to the president, under the 1977 Emergency Powers Act, the right exclusively reserved to Congress, under Article II of the Constitution, to impose import tariffs. It became apparent to me that this case will be resolved by an eight-one or nine-zero decision that will confirm that the President has no such power. 

The language in the 1977 statute gave the president only the general right "to regulate the importation of goods," and did not convey a specific power to levy tariffs. The court’s reasoning in its decision for this case will establish which powers the agencies of the federal government do retain by having been delegated them by Congress. There are broad long-term implications for this case that will reverberate for decades. That is true even if the conservatives take away a Republican president's power to levy tariffs.

Since I think this case is about federal regulation, I predict a near-unanimous court. I predict the court will determine that the president and his executive branch agencies do not have the power to levy broad unrestricted tariffs because Congress had not stated specifically and restrictively enough exactly what power it meant to delegate. The 2024 Loper Bright decision abrogated the power of federal agencies under "Chevron deference doctrine" to regulate without specific delegation of authority from Congress. The decision was about specifics. To be constitutional, Congress must spell out not just a general goal, but the means to meet that goal. Just how specific any one law must be is still to be determined, but more specific than in the past. Federal agencies such as the EPA, the IRS, the CFPB, the SEC, and FTC, all relied in exercising their authority by writing the specific regulations for those industries. They are on-site. They know the problems, they have the expertise, they would write the rules based on the general guidelines Congress set in the law. That has been the practice, made possible by the judiciary's deference to the expertise of people in those agencies. Not anymore. Now if Congress wants to allow tariffs, then it needs to say tariff. That decision changed the law, much as Dobbs v Jackson overruled Roe v Wade. 

For decades conservatives have sought to restrict the federal bureaucracy. A decision in this case will confirm the rule requiring explicit delegation. I therefore predict that the six conservative justices will vote to remove Trump’s claimed tariff power. It is also likely, in my opinion, that the three liberal justices will issue a concurring opinion that agrees with the result, but attempts to limit the reasoning and thus the effect of this decision.  

In short, the court may lose the battle to give Trump a "win" but they will have won the war they wanted to win, that of reversing the New Deal regulatory state, and done so in a case of the highest visibility.

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