The Supreme Court justices kept asking about "delegation" and "major questions."
I consider that good news.
My fear, as I wrote yesterday, was that the court would agree with President Trump's legal argument that his tariffs were not taxes, not really. They are just tools of foreign policy, Trump's lawyer claimed. I thought accepting that premise required willful blindness, belied by Trump's own comments about the billions of dollars raised, but that maybe the court's conservative majority would welcome a way to affirm presidential power without overtly denying congressional power. If the court decided the tariffs were primarily a foreign policy tool, the argument of the many amicus curiae briefs about congressional authority, including mine, would be irrelevant.
I was happy to see the justices' questions weren't about revenue. I interpret that to mean that they presume that tariffs are, indeed, a tax, and therefore Congress' job. The hard questions they asked were about whether Congress clearly and with specificity delegated the power to write tariff laws to the president. Whew. I consider that the strongest grounds for reversing Trump's tariffs.
College classmate John Shutkin warned me not to get comfortable. I could get fooled here, he said. John is a retired corporate attorney who finished his career as general counsel for two international accounting firms. Recent photos of John reveal him as distinguished, with a touch of gray hair at the temples. But distinguished old men were once young, and he agreed to send this image of himself and roommates. John is wearing the number 29 shirt.
Guest Post by John Shutkin
Reliable sources have informed me that the justices, including several of the conservative ones, were quite skeptical of the government's argument in support of the tariffs. A New York Times story headlined that "key conservative justices appeared skeptical of Trump administration's stance."
Based on these reports, I am cautiously optimistic that the tariffs will be deemed illegal and a nullity — though, even if so, whoever knows what sort of "rescission" can be ordered and/or enforced for the tariffs already paid. I can easily envision Trump and his lawyers fighting for years over that, or simply refusing to comply with any orders. (The deportation, ICE raids and SNAP cases to date suggest as much.)
That said, this cautious optimism comes with several important caveats. It is possible, and certainly happens, that this court could find a legal basis to support the tariffs that the lawyers did not raise, or at least did not emphasize. The Supreme Court is not bound to consider only the arguments made before them.
Intuitively, skeptical questioning directed to one side of the case indicates that the questioning judge is inclined to rule against that side, but that is not always the case. Sometimes, a judge who is sympathetic to one side will ask tough questions of its lawyers to give that side the chance to bolster its position on the record, or simply to show that the judge is being fair and open-minded and not pre-judging (literally) the case.
I am not lighting any victory cigars yet. Any wise legal pundit (if that is not an oxymoron) would not either. But the good news is that we're all going to find out how this turns out — unless, of course, Trump decides to do to the Supreme Court what he just did to the East Wing.
[Note: Tomorrow: a guest post from attorney Conde Cox. He predicts that the court will hand a defeat for Trump, but a big win for the multi-decade project by conservatives to reduce the power of the regulatory state.]
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The Constitution clearly gives Congress the power of the tax, not the President. If they give in to Trump, that will forever change the separation of powers that the Founding Fathers intended. The Supreme Court's duty it to interpret the Constitution as it applies to current circumstances. That's their job. It's not their job to change it. The Court also has to look to future Presidents and what they could do with this power. It's a dangerous president they could alter our democracy. That's something they must consider.
ReplyDeleteIf they really want to send a message, they should decide 9-0, like with the Nixon tapes. If they just want to take political sides like 6-3, then their decisions are meaningless.
I remember that wily Jesuit John Roberts confounding expectations to save the Obamacare individual mandate by ruling it a tax, which was contrary even to Obama administration arguments. Who's to know how the political winds will hit his upraised finger this time through?
ReplyDeleteDangerous president?
ReplyDeletepress a dent
ReplyDeleteYou could argue that the tariffs exist as a revenue generator, OR you could argue that the tariffs are being used for foreign policy purposes to open closed foreign markets (and to make them fairer), and their intent is not to generate revenue, but rather to influence foreign powers.
ReplyDeleteIf the intent isn't about the money, why does he keep bragging about it? Is he trying to tell people the country is making money off this scheme, so it's a good thing? Foreign policy is never mentioned. Is it being used to punish other countries, like his enemies? Yet, he never mentions that. Just the money part.
ReplyDeleteI should have spelled it "precedent". Unfortunately, I spell like old people fornicate...ie. slow and sloppy.
ReplyDeleteWhat was so funny so many years ago? I'm talking about the picture. Did you snap that photo?
ReplyDelete
ReplyDeleteI thought it interesting when Coney-Barrett expressed concern that the process of providing reimbursements for the tariffs that had already been paid would be “a complete mess.”
I wondered how her comment is relevant to the fundamental question before the Court of the legality of Trump’s actions. Or is a challenging remedy a legitimate legal rationale for a ruling that would favor Trump?