Did my amicus brief affect the tariff decision? Maybe it did.

In a concurring opinion, Justice Neil Gorsuch laid into his colleagues.

Gorsuch also cited the same data that I cited in my amicus curiae brief. Who knows? Maybe my brief made a difference.

The Wall Street Journal

Neil Gorsuch's concurring opinion is getting attention from the media because, in a polite, non-snarky way, he points out the hypocrisy and inconsistency of the three liberal justices --  Sonia Sotomayor, Ketanji Brown Jackson, and Elena Kagan. Then he does the same with the two justices -- Clarence Thomas and Samuel Alito -- who fully defer to Trump. 

In Gorsuch's telling, the three liberal justices are just as blindly partisan as Justices Thomas and Alito. Gorsuch wrote that In multiple instances occasioned by Biden attempting to implement policies by executive order (e.g., forgiving student loan debt), the three liberals voted to expand presidential authority, citing "broad" and "expansive" powers. But in this Trump tariff case, the justices were sticklers for the opposite, demanding specific delegation language.

Gorsuch did the reverse job on Thomas and Alito. So now, with this president, you think a president can interpret language expansively to give open-ended authority to a president.

I find reading primary legal texts, including the opinions in this case, difficult, but here it is. Scroll to the bottom. Understanding legal opinions usually requires fluent knowledge of how prior cases cited in the opinion built legal precedent. But it is no great feat for a non-lawyer to see that Gorsuch was enjoying pointing out his colleagues' hypocrisy. He had a second mission in his opinion, asserting that in both tariff matters and "administrative state" matters, responsibility for making the rules belonged to Congress, not the president, not experts in the federal agencies, and not the courts. 

Detail of cover of printed copy of the brief, as submitted to the Court

The centrality of Congress was the point my attorney and I made in the amicus brief, as did most of the other amicus briefs. I drew from the text of the first tariff act to document the odd, amusing particularity of the tariffs placed on early-Republic items of commerce. Such detail. I hoped the quirky list would catch attention and drive home my point. I wrote:

In 1804, Congress amended the Act of 1789. It added a list of items exempted from tariffs: rags of linen; cotton, woolen, and hempen cloth; bristles of swine; regulus of antimony; unwrought clay; unwrought burr stones; and the bark of the cork tree.

Bristles of swine could be an attention-grabber.

I argued that only Congress could evaluate the particular hardship and inconvenience of items that specific. I was thrilled to see the argument again on pages 37 and 38 of Gorsuch's opinion, citing the particularity and detail of import items as evidence that Congress and only Congress could impose tariffs. 

How did Congress exercise its all-important tariff power? It debated every detail of the first tariff Act. Stanwood 39– 71. Ultimately, Congress said, imported malt would incur a charge of 10 cents a bushel. Brown sugar one cent. Loaf sugar three cents. And so on.

I read this hoping to see in Gorsuch's argument a giveaway mention of "bristles of swine," the oddest item in my list, but I did not, alas. Still, maybe the quirky nature of the list caught the attention of Gorsuch and his law clerks, and it helped solidify his thinking on the issue. Who knows?

Gorsuch concluded his long concurrence with an opinion that makes me optimistic for future decisions regarding Trump's ambitions for presidential power. He said Congress, not the president, makes policy, and for good reasons. Congress is deliberative, he said, and that tempers impulse. Without mentioning Trump by name, he warned against rule by a single unpredictable, impetuous person. Who might that be? Better to trust the legislative process:

For those who think it important for the Nation to impose more tariffs, I understand that today’s decision will be disappointing. All I can offer them is that most major decisions affecting the rights and responsibilities of the American people (including the duty to pay taxes and tariffs) are funneled through the legislative process for a reason. Yes, legislating can be hard and take time. And, yes, it can be tempting to bypass Congress when some pressing problem arises. But the deliberative nature of the legislative process was the whole point of its design. Through that process, the Nation can tap the combined wisdom of the people’s elected representatives, not just that of one faction or man. There, deliberation tempers impulse, and compromise hammers disagreements into workable solutions. And because laws must earn such broad support to survive the legislative process, they tend to endure, allowing ordinary people to plan their lives in ways they cannot when the rules shift from day to day. In all, the legislative process helps ensure each of us has a stake in the laws that govern us and in the Nation’s future. For some today, the weight of those virtues is apparent. For others, it may not seem so obvious. But if history is any guide, the tables will turn and the day will come when those disappointed by today’s result will appreciate the legislative process for the bulwark of liberty it is.

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