Betty Boop or Shakespeare

Oh, yay. Oh, yay. Oh, yay. The judicial power of the United States shall be vested in one Supreme Court. Unless there is any more question, we have to divide an argument in this case. All persons having business before the Honorable Supreme Court of the United States are admonished to give their attention. Welcome to Divide an Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Will Bode. And I'm Dan Epps. So, Will, this is, you know, what passes on our show for an emergency episode. I don't think we do true emergency episodes because we're not ever trying to be super, super timely. But we did get the tariffs decision, learning resources versus Trump. And we are recording same day. And hopefully we'll have this episode to you fairly promptly. Does it feel like an emergency to you? uh well i guess that's part of the question of the case right i guess okay so we'll get to that uh all 170 pages of the opinion which we've both read to the extent possible in the brief hours between its release and this recording session before that something maybe a little bit less consequential, which is the amendments to the court's rules. Not the most exciting thing, but for those who practice in Supreme Court litigation, kind of interesting. So two things. One, the court has changed the rules in ways that I think are designed to make it easier for the court to catch recusal issues? Yes. So in petitions, the parties now have to list the stock ticker symbols for any parties to the proceeding. Mm-hmm. And that rule is going to extend to briefs in opposition. And interestingly, in the past, if you did not want to file a brief in opposition, you could just do nothing and then it would just be treated as if you had waived your right to file a brief in opposition and the court would consider the petition on its own. Now, if it's a non-governmental corporation that is the respondent in a case, they can't do that anymore. They have to either file a brief or file a little statement waiving, and that statement waiving would have to include the stock ticker symbols. Right. This is great. I mean, this is, I think, several of the circuits already use and have for a long time, you know, various automated ways to try to catch recusals rather than, I think, the court's prior technology of hoping that their clerks and other clerks, you know, successfully flagged every subsidiary of every corporation that might implicate the justices. and then you get these cases where the justices didn't recuse in the consideration of a sort of petition that obviously didn't even make it to the discuss list. So it's sort of dumb to care about it, but since it's the rule, it looks bad if they don't get it right. So this is great. I mean, I wouldn't go so far as to say it's great because I think it's dumb that this is needed. Well, a lot of things are- I think that the justices could solve this problem on their end by divesting themselves of stocks that create recusal issues. And I just don't see any reason for them not to do that. As I understand it, there's statutory authority that lets the justice do that and avoid realization of capital gains taxes. So, you know, people should just own index funds anyways. I mean, it's just this, you know. I think I said this to you before off the air, but one of the few Supreme Court ethics reform statutes I would support is a statute just saying by operation of law, when you become a justice. You have to sell all of, you and your family have to all sell all individually on stocks and reinvest the person's in index funds. I would be open to making it retroactive. So saying something like, no person shall be eligible to the Supreme Court if in the past 10 years they've owned a stock. Because really, people shouldn't own individual stocks if they're smart lawyers. And so we could just make all smart ambitious lawyers. That seems too excessive. Just good incentives. It would be good for the world. I mean, look, if some, you know, really savvy, you know, future justice, you know, wants to build a portfolio, you know, I'm okay with that. They just can't do it once they're in the court. I mean, this has been a big problem for Justice Alito. You know, he, I think via his wife has all these conflicts from, you know, various stocks. And it just seems to me that if you're going to be on the court, it's your, it's your job to be eligible to hear all the cases the court might hear. Yeah, you heard the rumors that on the D.C. circuit, some judges intentionally buy stock in energy companies. They don't have to hear the FERC cases or whatever. I don't know if that's actually true or just apocryphal. That's extremely disturbing, if true. It strikes me as deeply unethical. There you go. Ethics reform we can agree on. Okay, and the other thing is, this is deeper in the weeds, probably only of interest to those of you who, like us, occasionally, file briefs or help people file briefs, which is, it used to be the case that, so the court created an electronic filing system, you know, in the last few years. But formally, a document was not filed for purposes of, you know, actual filing until the paper copy was received. And so you would still have to, you know, do this process of uploading the PDF, But the actual thing that counted as filing was the delivery of the 40 printed and bound little booklets of a petition, at least if it's a paid petition. And so now the thing that counts as filing is the actual upload. And this is the way it works in, I think, all other federal courts in the country. and so then the the filing party can make sure as long as they get the paper copies in within a couple days yeah then it's all it's fine yeah and this is i mean this is a i think a non-trivial change and that as you know from trying to do this if you there are great companies you can work with who print uh and file these briefs but the but the supreme court's kind of printing standards are relatively boutique like the booklets have a weird size they're basically a specialist you need to go to one of the sort of set of specialists to do this and they usually want your draft by like 10 a.m that morning or something with a limited ability to check for typos and stuff after that so you this really gives you a whole business day a whole extra business day to to write and file your brief yeah because i guess the brief could be filed electronically late at night late at night and then the next morning the printers get to work on it yeah um now of course there's no reason that you know there's no reason we can't all just start everything 12 or 24 hours earlier, knowing the way the deadlines work, but it sometimes happens that you're down to the wire and now the wire has moved. Yeah. I'm generally opposed to late night filings. I just, you know, I think professionals should be able to get it done earlier in the day, but I suppose this will, this will bail a few people out. Look, I mean, you can still file it earlier if you want. Yeah. Yeah. Still, but you know, you know, maybe, maybe they should set, I mean, I think it would be, there's no reason the deadline has to be midnight, right? That's true. And there's some, there's a thing recently, the Third Circuit for a long time had a 5 p.m. deadline, I think. And there was some question whether to move it. Or maybe they had a midnight deadline, there's a question whether to move it to 5 p.m. It is awkward because the 5 p.m. East Coast deadline is in like 2 p.m. if you're finally from California, which I mean, you could do, but it's sort of a, you know, sort of awkward. Yeah, it's just, it's like one of those things where you're setting paper deadlines for your students, you know that some of them will go right up to the deadline. And so like if you set it at 7 a.m., some of them might stay up all night. And so maybe that's out of kindness. You shouldn't do that. Yeah, but I think I am entitled to be more paternalistic towards my students than the Supreme Court needs to be to members of the Supreme Court Bar. I don't think it's really paternalistic to just say, let's be nice to people. Well, I don't know if it's nice or not. I think it's saying, We worry you're going to do something with this freedom that is not good for you. So we're going to instead take away your freedom. But don't, haven't you, you know, in our side conversation, you took the decision that everybody always files like at the deadline. That's just the way it works in law. Yes, but you told me I was wrong because you were actually more responsible. So I don't think I would always go to midnight. Right. Well, I guess, and I do think there is this, this is, which is going to answer me a little bit, there's, of course, this plurality problem. So, you know, my experience in practice was that sometimes you, the lawyer, were ready to file something a day earlier, but then the client or some other stakeholder wanted to look at something again, and, like, they had changes. And if you could say, sorry, too late, we've got to get it in, I'd be like, okay, fine. Yeah. But if it was not too late, you know, then suddenly you have to do a bunch of extra stuff. So the deadlines do operate to resolve conflicts between multiple stakeholders on a brief in a way that nothing else can. That's true. I mean, certainly it's true that like in my time in practice, I never saw a brief filed like a day early. It was always like on the day that it was due. Yeah. one interesting thing about both these changes by the way they're small is that they're both you know sort of common sense things that bring the supreme court a little bit more into what justice kennedy would call the cyber age um you know only a couple decades later than yeah that you might have thought was natural here's a question i have you know one thing that has uh come up occasionally over the years is the practice of ghost writing briefs and opposition Yeah. Right, which is, you know. We've talked about this. Yeah. You know, where the party, you know, trying to oppose cert, maybe there's multiple law firms working on it. There's the kind of local counsel, you know, not famous lawyer. And then there's behind the scenes, there's the super famous Supreme Court practitioner. And, you know, the incentive is to not put the name of the fancy Supreme Court practitioner on the brief in opposition, because then you're like signaling that fancy Supreme Court practitioner thinks this is like important case worthy of his attention. Yeah. Or his client thinks it's worth. Yeah. I mean, and, you know, maybe not client if it's a pro bono case or something. But then that does create a problem, right? Which is that it means that there's no opportunity for the court to check for conflicts in terms of counsel, right? That's true. Although this must come up. I mean, this must come up all the time. If you have a party who has lawyers who haven't entered an appearance just in regular court. Yeah. I guess, I mean, I'm talking out of my ear here. I guess the idea is we just don't care that much. If the judge doesn't know that this person's involved, then there is no appearance. There's no potential bias and no appearance of bias because the judge doesn't know. yeah although that lawyer might suddenly make an appearance later in the case like you know at the merit stage or something at which point the recusal kicks in yeah yeah maybe there just aren't that many situations like that i mean the justices children i think just don't file petitions right and probably don't secretly consult on that many petitions yeah although you could imagine i mean sometimes the yeah it's an interesting point i mean i i think this must come up in federal court all the time because there are people who are under investigation and consult with various lawyers and then somebody might enter an appearance but you might have your big gun waiting. You don't decide to know you're actually ready to go to trial and so you have your trial boutique on retainer or whatever. Yeah, that's interesting. Okay, that's our only non-tariff news. I think so, yeah. I feel like it's been kind of a slow stretch. Well, they weren't sitting. We had to dig into the argument recaps and previews to sustain the show. But they've got more opinion days next week. And there's been very few kind of, you know, shadow docket, interim docket type things. Yeah. But today, Dan, today is Liberation Day. Are we liberated from tariffs? It's Liberation Day, Liberation Day, right? Like Trump proclaimed tariffs, Liberation Day, and we've been living under these ruinous consequences for 10 months, and now we are liberated from Liberation Day. We're liberated. I feel free. Okay. Yeah. The only other thing I was going to say was I had a post on our blog and also on the Interim Docket blog sort of asking, you know, so a lot of people say, some people say, you know, the Supreme Court is in the tank for Trump because they rule for him on the interim docket all the time. Other people say, actually, they're not. It's just because the SG's office is being really selective about which cases to take. Okay. And then I said, okay, well, if the latter thing is true, then why is the SG's office doing that? Why is Solicitor General John Sauer doing that? He presumably could take more cases, you know, would potentially reduce his win rate, but also might, you know, end up saving a few more decisions, bad decisions below. I didn't really come to a conclusion on that question, but, you know, I do think maybe there's sort of some complex intra-administration politics going on. Maybe it's, you know, it's easier to look good to Trump if you can just point to a strong win record. yeah yeah i think there is something to that i mean i do think there is this complicated dynamic maybe this is more solidified than there used to be about sort of to what extent trump wanted to go the you know the inside route versus the outside route or the the law route versus the who cares with the law route and if you're on the on the law team then showing the president you can get victories through the law route is good. And it might be that lowering the salience of the things where the law and the court's actually going to rule against you is helpful. But I'm not sure. I think it's a good post. What do solicitor generals maximize? Yeah. And so, you know, that I think is a segue into talking about the tariffs case, learning resources, because you know, not to bury the lead, the president loses pretty big time in this case. And And, you know, before we get into the legal weeds, I mean, you know, Trump is mad, right? He doesn't like this. And I, you know, the segue is I wonder whether this will jeopardize, you know, Solicitor General Sauer, right? At all, you know. I'm not saying it should, but I just wonder. Yeah. I don't know. It also depends on what it looked like, you know, if, what were the conversations like? Like, did the SG say, look, Mr. President, you know, you're going to lose this one. I'll do it. Or did they say, no, you know, we can win this one. Yeah. But also what other, you know, I guess there's something in between, right? I don't think that this was an absolutely unwinnable case at the outset, right? No. I mean, I think before argument, my money, which I did not bet other than the way we all are invested in the economy, my money would have been on a, you know, probabilities to be over the government, post-argument less so. I saw that in one of the press conferences, the president blamed foreign influence. Some of the justices are somehow susceptible to foreign influence, and that's part of why the court ruled against him. Don't totally understand the causal chain there. No, but maybe that's a, you tell them a solicitor general sour, as you say, you know, well, Mr. President, we obviously, we won all the American justices, but we lost the traitors. Yeah. Including two Trump appointees. S&P 500 up as of right now, 0.61%. Is that a lot? I mean, it's not, I mean, it's 61 basis points. This is not terrible. Yeah. But yeah, it's not a huge shot in the arm for the stock market. I sort of, I guess that the market had already priced in some expectation that this was going to come out this way. Because I sort of thought that, you know, you'd see a little bit more of a boost than that. Right. I think the prediction markets, you know, had this at like a 70 to 80% probability already. And of course, there are these questions, which I guess we'll talk about soon about like, well, what does this actually mean? Can the president still impose the same tariffs some other way? Yeah. Will this disrupt our various trade deals? Do we have to now come up with billions of dollars to pay the people who we took it from, apparently unlawfully? And so Trump has announced he's imposing a new 10% global tariff under Section 122 of the Trade Act of 1974, a statute that I have not investigated. I don't know if you've looked at the text of that at all and whether there's going to be any kind of similar arguments there or whether that one is a statute on which the administration is on firmer ground. I looked at this a while ago and there are several different statutes, but I think some of them just require more findings and procedures than the president's currently used. So, you know, I assume some lawyers were already kind of working on this beforehand. end oh yeah i would imagine so we'll see what it looks like exactly and whether it holds up i think the trade act and these other statutes make it harder to do the thing where somebody is mean to you on the phone and you just unilaterally double the tariff um that would be nice to have that i wish i had that power well you can do that i could just tariff tariff you you can you could do it to anybody you want to do business with you just be like you were mean to me so i'm not i'm not buying any of your products unless you give me a 10 per the discount and then see what they say i suppose I suppose so. I don't know how well that would work. I try it to your employer. I'm mad. I demand a 10% tariff. So the Wall Street Journal has a short piece about how Trump learned about it. He was in the middle of a closed-door meeting with governors, and a trade advisor came in and handed him a piece of paper. And he looked calm, but apparently told the governors he was seething inside and called the ruling a disgrace. it's interesting because they don't you don't normally think of the president as somebody who bottles up his negative emotions but but apparently he does yeah okay so should we actually just say what happened first and then we'll talk about uh yes although okay i was going to just note that he was pretty mean about justices gorsuch and barrett two of his nominees so i think it's an embarrassment to their families if you want to know the truth the two of them Why their families? I'm not really sure. Maybe their families like tariffs. Asked if the six justices who voted to undo his tariffs would be welcome at Tuesday's State of the Union address. Trump said, they're barely invited. Honestly, I couldn't care less if they come. That's interesting. Actually, do you think they'll come? Yeah. Yeah, okay. I think that they're not going to skip just because the president is mad at them. I think that you show your authority and independence by still coming. What if they think that he's going to yell at them if they come? Then they're going to sort of silently mouth, not true. All together. Yeah. Well, all six of them. Okay. So the Supreme Court invalidated the tariffs by vote of six to three. The majority opinion in part, plurality opinion in part, is by Chief Justice Roberts. It is joined by Sotomayor, Kagan, Gorsuch, Barrett, and Jackson in parts, and other parts only by Gorsuch and Barrett. There are concurring opinions by Gorsuch and Barrett and Kagan joined by Sotomayor and Jackson and Jackson. So four different concurring opinions. Yeah, the ones by Kagan and Jackson are partial concurrences, right? They're concurrences in part and concurrences in the judgment. Yes. And then Thomas has a dissent, and then Kavanaugh has a dissent, joined by Thomas and Alito. Very very long one And in broad strokes so the reason the majority is a little complicated is the majority strikes down the tariffs on two grounds Or sorry Chief Justice Roberts and Gwosich and Barrett strike down the tariffs on two grounds. One, if you read the statute, the president should lose. Two, if you read the statute with the help of the major questions doctrine, the president should lose. They have six votes for the first proposition that if you read the statute, the president should lose. Just as a matter of kind of normal statutory interpretation. Yes. But only three that employ the major questions doctrine. And this, I mean, the decision is fascinating, not just for what happened, but for, there's a lot of back and forth among various opinions about the major questions doctrine and leaves me even more confused about what the major questions doctrine is. Because, of course, the major questions doctrine started out not being the major questions doctrine. It started out there were just some cases that interpreted statutes. in a common sense way. And then after a while, the court was like, well, I guess we can call this the major questions doctrine. And now, you know, some of the justices are doing the major questions doctrine while not calling it the major, I don't know, it's very confusing what the. Yeah. So, you know, I don't know where to begin. The chief justice's opinion, majority opinion, is quite efficient. Yeah, I thought well written, gets to the point in just barely 21 pages, not just a little bit onto the 21st page. Yeah. So maybe the place to begin is just with AIPA. Okay. You're going to read the whole relevant section? I'm going to read two paragraphs of the chief's opinion. So one is paragraph two on page two. Enacted in 1977, AIPA gives the president economic tools to address significant foreign threats. when acting under a epa the president must identify an quote unusual and extraordinary threat unquote to american national security foreign policy or the economy originating primarily outside the united states and he must declare a national emergency out of the national emergencies act he may then by means of instructions licenses or otherwise take the following actions to deal with the threat and then his big quote investigate block during dependency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest. And then the chief summarizes this at the very first paragraph of part two of Based on two words separated by 16 others in Section 1702A1B of IEPA, regulate and importation, the president asserts the independent power to impose tariffs on imports from any country of any product at any rate for any amount of time. Those words cannot bear such weight. Right. So that's the core holding is regulate importation does not include the power to tariffs imports on any country of any product at any rate for any amount of time. All right. What do you think? just as a matter of basic statutory interpretation? Well, this is, I mean, I'm delighted by this opinion and I think it's right. But it would have been easy to write an opinion that says the power to regulate importation includes the power to say you can only import if you pay us some money. Yeah. Right? So the conclusion that the power, that those words regulate and importation don't include this power is driven in part by something else and i don't mean i mean you know there's the realist version of it's just driven by uh the fact the president is a crazy person who can't be trusted with his power there's the gorsuch version where it's really driven by the fact that it would violate the non-nelegation doctrine so it violates the major questions doctrine there's the barrett version where we say well it's not that strong but still like the kind of separation of power is fact in the background like there's lots of different ways to come at it, and I think that's right. But I do think the words regulate and importation are not doing the decisive work here. Do you disagree? Yeah, I think that's not a crazy belief. I mean, it seems to me that, you know, one thing that at least struck me as important in the background is, you know, that this is the kind of power that, at least as I read the Constitution, is in the first instance, you know, you know, correlate within Congress's power. Right. I agree. You know, right. So that could be a piece of background fact. Yeah. The Congress shall have power to lay and collect taxes, duties, imposts and excises. Right. Right. But but you know what other power is greater than Congress's power? The power to regulate commerce of foreign nations. so even just the power to regulate importation that's like almost straight out of article one yeah but there's i mean but i mean there it's it's they're saying it clearly right like my my point is not that they can't do it but my point is you know you might where there's a clear yes grant of authority to congress you might want to see them explicitly use the the governing language to transfer that power yes exactly so that's That could be what's doing the work is the text of the Constitution kind of serving as a dictionary. Now, even in constitutional law, we often have a lot of overlap between the tax power and the commerce regulating power. And we say, oh, is this really a tax? Is this really a regulation? In NFIB, of course, the overlap really came to a head. So, again, it wouldn't be crazy to have said, like, the power to tax interstate commerce and the power to regulate national commerce are two big powers. that are deeply entwined. And I'm sure Congress could separate them, but I think the majority is right. And I think they're even right without something fancy called the major questions doctrine. But, but this is sort of where I'm confused with the major questions doctrine is. Okay. So you think they're right for what reason then? Something in between major questions and straightforward, such a interpretation. Yeah, I guess this is what, I mean, is this what we call context now? It's just like, if you read these words in isolation, I don't know, you know, it wouldn't be crazy to read them either way. But if you read them in the background of the Constitution and sort of common sense. And for me, the other kind of common sense piece of this is the fact that this power is triggered by the declaration of a national emergency, which both doesn't seem to have been met here, but which everybody seems to not want to second guess. And I find that combination tricky. Like, if you told me that, no, we're going to read these words really broad, but there has to be a real national emergency. And if there's not a real national emergency, the courts will stop it. then it would make more sense to read the terms really, really broadly. So what if the statute didn't have any kind of emergency threshold? So similarly, I think if the statute just said, like, anytime the president thinks it's necessary and proper, he can regulate importation, that would be another reason to read it narrowly. But if you had the same words behind some sort of a locked door that could only be accessed in emergencies, then context might say, okay actually you should read these things kind of broadly and on its face is that kind of statute on its face only allows you to use the powers if you get the key to the door it's just that the president has the key and nobody can yeah my metaphor got away from me there but but i mean here yeah no one is like saying you know we're going to rule against the president because there's not an emergency right we seem to just be taking that for granted right it was litigated It was before the court. They would have had to, to write an opinion ruling for the administration, you do still have to say why this is an emergency. Or why the courts are not allowed to say it's not an emergency. Right. Right. And the phrase is not even an emergency. It's an unusual and extraordinary threat. And so you have to respond to the point that actually balance of trade deficits are not unusual. They've been there for a long time. They're not particularly extraordinary. And so on. Now, again, you could just say, well, just we're not allowed to ask whether it's unusual or extraordinary for reasons. So, okay. One side thing, you know, this was actually two linked cases, learning resources and VOS selections. And there was a question about like what courts properly had jurisdiction over these challenges. and one of the cases came up through the Court of International Trade and the Federal Circuit, and another came up through a regular district court to the D.C. Circuit. And the court says, you know, basically the first one was right jurisdictionally. It should not have come up through the district court to the D.C. Circuit. And it concludes that in like a very brief footnote on page five. Yes. Is that surprising that it's just so brief? no i think that's that was the conventional view and the only reason the only reason to expect anything different is like would the court have sort of squinted at the jurisdiction in order to reach the case if they had to yeah because they had the version that had the right jurisdiction the wrong jurisdiction to get right yeah it has the funny consequence though that so learning resources versus trump is the one that came the wrong way yeah uh and vos solutions is the one that came the right way so there's you know the old joke like who's buried in grant's tomb and the answer is nobody because it's a like a boat crap whatever it's not buried it's like is that the punchline i thought the punchline was grant no the punchline is nobody oh okay let's see if you do it right is that here in missouri i thought it was in new york uh he's he's his uh farm is here uh yeah well galena he grew up in galena illinois didn't he i don't know grant's farm is in is in missouri so the version somehow you could do a version of like, you know, what did learning resources, what result the learning resources get learning resources versus Trump? They lost, it was dismissed for lack of restriction, you know, or so I can't go over how to, how to do the joke, but it's funny that the learning resources is not the victorious party. Yeah. We actually got, I don't know if you saw, we got an email about this from, from Zach Alban. Uh, I hope I'm pronouncing that correctly. Uh, and he says, I write you with a question I suspect, uh, might only get answered by the divided argument team. And then noting this weirdness about the caption of the case. He says, does an appeal of a jurisdictionless court order to a court that does have jurisdiction cure a statutory subject matter jurisdiction problem, at least for the purposes of the Court of Appeals? What do you think? No. Okay. That means the D.C. Circuit also lacked jurisdiction? Yes. Which means the Supreme Court also lacked jurisdiction? Oh, well, they have jurisdiction to determine jurisdiction. Yeah, yeah. But in Learning Resources versus Trump, I think the appeals will all be dismissed. Yeah, that has to be. Yeah. Right. Okay, so there are like, I feel like a lot of the action in these opinions are in the concurrences, but there are, I think, three small things from the majority I do want to flag. One is the treatment of Dames and Moore versus Regan. This is the 1981 precedent written by Chief Justice Rehnquist during the term John Roberts clerked for him, upholding presidential authority outside of the statutes to deal with, to suspend various claims as part of the negotiations of the Iranian hostage crisis. That is sort of long taken to stand for the proposition of like, don't ask too many questions when it's a big foreign affairs thing. Like the president, and it's a little, is it Article 2? Is it, what is it? And that argument that was one of Chief Justice Roberts' few questions was, you know, isn't Dames and More extremely narrow and distinguishable? and the majority says that. They say, the government invokes James and Moore versus Regan, but the case offers no support. It was extremely narrow. And then there's a footnote where it quotes all the various parts of the opinion where it said, we're only resolving this case, where this is narrow. We're not going to delay any general guidelines. And then the footnote says, this is not quite no, no, a thousand times no, but should have suffice to dissuade the principled sent from invoking the case with respect to the quite distinct legal and factual issues present here. That's interesting. Yeah, that's, um, and what is known? So I was trying to figure this out where the origin of this phrase and one answer I'm finding on the internet is it's a sort of a, it's a phrase that, that partially comes from, uh, Shakespeare, the two gentlemen of Verona. Uh-huh. Why this is it. My heart accords thereto. And yet a thousand times it answers no um the other thing that i'm finding is a uh 1935 fleischer studio animated short film starring betty boop called no no a thousand times no so it's either betty boop or shakespeare or maybe there's some something in in between so i'm but i found a uh english.stack Thecomracexchange.com question about this. This is not a question from this case. It was a 10-year-old post. Here, the person asking the question claims that it has possible origins in India. And this person finds sort of a reference in Animal Farm by George Orwell. No comrades, a thousand times no. So not the no, no formulation. But the majority uses the no, no formulation and in quotes. Yes. But they're not quoting anything. I mean, they don't say anything. Yeah. I mean, so far, the only thing I'm finding for that precise formulation of words is the Betty Boop thing. Right? I mean, like, I'm not... Yeah. Okay, let me see. I found a 1967 New York Times article. Okay. That has, this is not, this significantly post-dates bitty boop, but the headline is, In the Nation, No, No, A Thousand Times No, Reluctant and Unconvinced, Flexible on Vietnam, The Democratic Alternative. I don't know if that... is that about the age of like the justices youth like could they remember this headline from i don't know um there's apparently also a song like from the bitty thing also then becomes a song that's i don't know okay yeah so i mean this is what i've been able to figure out based on a few minutes of googling but you know it's possible that you know what no I think we got to go to AI on this. Okay. Last time we tried that, Dan, it led us astray. Yeah, but this seems like the kind of thing that might be in core AI wheelhouse. Okay, I'm asking both Claude and ChatGPT. Here's what Claude said. His roots in melodrama, both theatrical and operatic, widely popularized and eventually parried as a cliche of the damsel in distress, refusing the villain's advances, the kind of scene you'd find in Penny Dreadfuls. And so, so far, a phrase also appeared in the 1935 song, which played on this melodramatic tradition deliberately for comic effect. By that point, the expression was already well-established enough to be recognizable as a cultural touchstone. Okay. But if the idea is it's like playing on the damsel in distress, like the damsel isn't really saying no and saying no no a thousand times no then it's the idea that damsel more doesn't want to be cited but wants to be um okay gpt gave me an answer that was much less useful okay that's often my experience yeah that's surprising okay so i don't think we're gonna get the bottom of this one okay i feel like this is a place where the uh divided argument listener community can outperform ai i feel like somebody somebody listening to this understands the layers of what the court is going for with this reference and i hope you'll tell us call right but i want to know all right so you said was there something else you said okay that's one two others one of my uh favorite cameo holdings is the court does make a a brief constitutional alternative holding that IEPA would be partly unconstitutional if the administration were right. Not because of the non-delegation doctrine, but because on page 15 of the taxing exports clause, they say, a contrary reading would render IEPA partly unconstitutional. IEPA authorizes the president to regulate importation or exportation. Taxing exports, however, is expressly forbidden by the Constitution. Article 1, section 9, clause 5. I mean, that's not wrong, But it's just kind of weird to have that dumped in there with like two sentences. Yeah. Kind of. I mean, is that dicta or not? I mean, it's part of the reasoning. That's part of the reasoning. I mean, when is the last time the court has said something about the taxing exports clause? And like said that a statute, you know, might be unconstitutional of the taxing exports clause. I'm not sure. Well, do we ever tax exports? There's litigation right now. somebody told me at lunch about the new regulations of nvidia chips to china which i think say you can only export them to china if you give the government a 15 cut yeah that sounds like a uh an export tax sounds like an export tax you know i'm sure the lawyers for nvidia or whoever is just challenging it will point to this paragraph i remember this point being made in the in the challenger's brief and i remember thinking oh that's cute yeah you know uh but i'm glad it wasn't too cute. Okay. So that's two. You said you had one more. Okay. The last is, and maybe there's another time to talk about this, but the majority says absolutely nothing about what happens next. Yeah. Yeah. Isn't that weird? So there had been some discussion at Argumat about, you know, can we make, can we stay the mandate or can we make this perspective only just something to stave off the apocalyptic, you know, concerns that, that the defenders of the tariffs raised about, you know, what, what's going to happen, billions of dollars in refunds, not nothing, absolutely nothing. Nothing. Right. And so, so we have to go through a whole round of litigation about that now. I guess so. I mean, do we know anything about what that litigation looks like or what the, I mean, you, I, where do you go? The court of international trade? I mean, I think so. Okay. And I think there is some theory that people are differently situated based on whether they promptly challenge the tariffs or not and so on. But I think in the period between argument and now, a lot of people have been challenging their tariffs. Do I get any money back? I don't know. I don't know if I paid any tariffs directly. And sort of- It just was absorbed into the cost of goods. Of goods. I guess I'm not sure. it is interesting because the the supreme court granted a stay before they uh enacted this so you know it's the trump administration and the court that are the reason there have been a lot of tariffs paid that they're now going to have to unwind i mean there still would have been some right yeah but for instance if they knew the case was going to come out this way at conference i know i guess i know i didn't do this but they could have like that afternoon and it was all this day and then said it opens to follow now i guess everybody lost their mind and trump would have called them traitors and we wouldn't even have this nice opinion to to stand up against it yeah but that just you know now now that we've had the delay now that we understand that the delay was not because the majority of people are taking a long time to write but presumably because the other 149 pages were taking a long time to write like it's worth asking i don't know was was that worth it like i like a lot of these opinions but how many billions of dollars had to be paid so that Justice Thomas could launch a new theory of the non-aliation doctrine and so that Justice Barrett could argue about who's a better textualist. Yeah. Well, why don't we walk through those opinions, having dealt with the brisk majority and I guess go to the gorsuch opinion first uh um gorsuch opinion is basically like i'm here to tell you almost everybody else in the court is a hypocrite this one is a has a godfather type quality like you know we've we've talked like the sort of we settled all the family business it's like it's like here we are i'm gonna tell you about how kagan sotomayor jackson barrett caffinan thomas and alito are all not just wrong but like basically hypocritical right in different ways yeah i don't want to quote too much of it but he sort of like lists all the different ways in which he wants to complain about them and he says it is an interesting turn of events each camp warrants a visit this whole opinion also i just thought had a i don't want to say cast aspirations of just a scorsage's writing style but there have been times that he gets sort of like a little purple like we gets kind of really worked up and this one this one is just like it's a dry and sharp in a lot of places instead yeah in a beautiful way yeah i think it's it's good i mean it's not i mean i don't think he's ever going to be up there with scalia but i thought this was solid like this is this is more than so this one this one scores some good points okay i think it could have been a little shorter but it's true a lot of things published at the court these days. We spent billions of dollars to get this opinion down. Okay. So first part of his opinion is trying to dunk on the liberals, right? Who took the position that this statute just as a straightforward matter of statutory interpretation does not authorize the tariffs without resort to major question of doctrine. And, you know, there, I mean, he really is just using this opportunity to kind of highlight perceived hypocrisy. He's like, look at all these other decisions where they said the Biden administration could do really broad stuff under, you know, kind of vague statutes. Why do they think that now? So, but isn't he right? I mean, you know, I think it's not an unfair point. I mean, I think that, you know, you can often draw distinctions between, I mean, every one of these cases comes up with its own unique statutory structure, its own unique facts. I guess, I mean, it is a little, I'm always careful about how to use the phrase ad hominem, right? Because ad hominem is a particular logical fallacy. And people often use that phrase to describe things that actually are not logical fallacies. But here, I guess it doesn't really matter to the truth or falsity of the underlying argument, whether other justices have been consistent or not. Right. So it just, it sort of seems like, why does this matter other than a sort of score settling? Well, I think it probably matters in the future. Right. So, so if you, the fact that now the major questions doctrine has been used in a bipartisan way, like it's not just the major questions about democratic presidents doctrine, which until now I was up in the air and has been used, you know, you know, the net, the net consequences, the net amount of anger, presidential anger that the New York Constitution has caused might even be more Republican anger than Democratic anger. That gives the doctrine, for those who care about that kind of thing, that gives the doctrine some added legitimacy when the majority wants to apply in the future. Yeah, although it hasn't, I mean, it hasn't been invoked by a majority here. Right, well, that's just it. So then in the future, the dissent will maybe want to say, no, no, you know, this one doesn't count on the major questions doctrine scorecard because it was an easy case the president was supposed to lose anyway so the kind of the question of it it affects the stakes of the major questions doctrine and maybe the stakes of the how partisan is the supreme court which i feel like is one of the big sort of stakes of this case like i gotta imagine right now if you're john roberts you are hoping to see an apology from some of the lost law pressers and newspapers who spent last summer talking about the Supreme Court and John Roberts had totally sold out to Trump and the court was terrible and so on. You know, it was a little discreet opinions, but you're thinking like, you know, nuh-uh. Yeah. No, no such apologies will be forthcoming, of course. You never know. $50,000. All right. So maybe score some points there. Okay. Who's next in the line of Gorsuch fire? uh let's see it's a long opinion you know i mean so he he goes and i mean it's not just you know criticizing others i mean he is offering his own substantive lengthy defense of this doctrine and trying to find you know trying to respond to the argument from critics that this is this new fangled made up thing and he like finds origins in uh corporate law from you know pre-founding and founding your corporate law uh-huh and 18th century british cases and you know the railroads and here i will also say uh just as good as great taste in citations so he relies on mary builder's excellent article the corporate origins of judicial review published by the law journal uh back when i as a yellow turnout editor. He relies a lot on the work of T.T. Arvind and Christian Barsat, one of my favorite legal historians. So this is a lot of good stuff in here. Again, you might wonder whether we needed it right now. Do you think he sits down and reads those articles or is it more like he's kind of relying on good clerks who read the articles? I bet he reads them. I mean, I assume somebody is telling him what to read. I assume he's not like doing a Westlaw search for and like reading the all the false positives but he seems like somebody who would I mean he puts in the hours yeah I don't know okay so right so we sort of to build up the idea of the major questions doctrine is real and so on then finally after 17 pages that we turn to the next camp right so a little little gentler with her a little yeah so he calls it a thoughtful effort yes so i don't think does he even think the liberals are thoughtful well okay fair enough but so of course the state of play is that justice gorsuch defends the major questions doctrine on sort of non-delegation grounds on west virginia versus epa then barrett comes along on biden versus nebraska to say no no no it's not a substantive canon substantive canons are bad it's actually a sort of linguistic canon that just as a way of you know dealing with ordinary interpretations of instructions and the famous sort of example of the babysitter and the alligators so now we have gorsuch kind of the next move in that uh which is to say it can't really be just just sort of common sense like what's really doing the work is a belief with the background legal norms um and he you know works on what if instead of a babysitter taking the kids to the amusement park it's a co-parent the co-parent actually might be acting correctly because they have different sort of background authority draws on delegation and agency you know and i think we haven't gotten just as bare as concurrence yet but in some ways she might even agree right um that these things are doing some work so i think the gap between them may be narrowing uh he does have this footnote his first footnote uh is a sort of spicy one and it's in the barrett section from that one uh where he says today justice barrett protests that the foregoing discussion takes down a straw man but it was just as barrett who previously wrote that the major questions doctrine grows out of a common sense principles of communication and it was just as barrett who used the various illustrations recounted above to suggest that our major questions doctrine could be explained by reference to the kind of common sense that goes without saying if justice barrett now means to put all that to the flame the major questions doctrine is better for it and that's a nice like the straw man and the flame is like good oh yeah that's not a metaphor that does work yeah it's that one i thought that was that was spicy i thought yeah like he's sort of i guess she's not being lit on fire in the metaphor right it's just her earlier interview yeah biden versus nebraska has been lit on fire yeah okay third camp all right that brings us to the third camp this is the kavanaugh camp right this one these are thoughtful and merit careful consideration okay wait so we went from nothing to thoughtful thoughtful but harbor doubts and this is thoughtful careful consideration is that better or worse than thoughtful and harbor doubts not sure i mean it's sort of suggesting that you have to like spend more time to go through it to figure out that it's wrong Okay. So this is the idea that, well, IEPA should have, you know, it's a big deal. It includes this and or there's a foreign affairs exception. Is that the? mm-hmm so you know here he's going to go through the statutory analysis and he says you know the dissent consults for clues we have sometimes employed in our major questions cases to help assess whether statute clearly authorizes an asserted power and um he says the dissent formulates these clues largely as i would but to my eyes the dissent engages in a little grade inflation when applying them. That's a good one. Okay. So clues. First, is the president seeking to exercise an unheralded or newfound power? Dissent says no, pointing to this example from President Nixon. Gorsuch says that's wrong. A single time, one never tested in this court. Yeah. Okay. Clue two, How has the executive branch interpreted AIPA in the past? Dissent says presidents have long understood AIPA to permit them to impose tariffs. But he says, again, you're relying on really kind of isolated pieces of evidence. And, you know, no president until now has invoked AIPA to impose a duty, even 1% on one product from one country. Okay. Mismatch between the action the executive official seeks to take and his expertise. Okay. Here, he agrees. No mismatch. terrorists fall in the president's wheelhouse okay fourth is the president relying on oblique elliptical or cryptic language dissent says no because uh this does not involve uh elephants in mousels to to you know use a famous metaphor and here this statute was designed to convey major powers. It's a fair point as far as it goes, but our cases ask not just whether our provision is a mouse hole or ancillary, they also caution against reading extraordinary powers into broader general statutory language. See West Virginia versus EPA. And that does seem like a good example for him. Yeah. As I see it then, three of the four clues the dissent relies on cut against it. so he reaches the the opposite result yeah uh on that and then okay next part right then he says okay if the president's claim fails our usual major questions doctrine the dissent says we should make an exception to it for foreign affairs once more i guess he has limited agreement which is and this is actually a profound and interesting point there's a everybody has an intuition that there's some sort of exception for these various things for something kind of foreign affairsy and one way to view the exception is by topic like it's foreign affairs that's presidential a different way to view the exception which is just a corsage's view uh is by like the constitution if it's something that the president has article 2 authority over then the standards are relaxed because not all his powers come from congress the non-delegation concerns are diminished the major questions and so on and tariffs while they're arguably foreign affairs-y are definitely not Article 2 the administration accepts that the president has no inherent Article 2 authority to impose tariffs yeah this is interesting I think and here there's a sort of sort of a fight over who is better supported by Kurt Bradley and Jack Goldsmith who have an article called Foreign Affairs Non-Delegation and the Major Questions Doctrine and who by my read are really taking something like the Gorsuch position, that these doctrines are relaxed when there is Article II authority. But, you know, again, if you sort of squint at it, you could try to turn that into a foreign affairs exception. Yeah, and the first appearance of this article on page 30 of the Gorsuch dissent is, at the time of recording, improperly blue-booked. Is the incorrect date in the parenthetical? Oh, it's 2004 instead of... Yeah, and it's actually 2024. yep whoops my my colleague conor clark pointed this out to me yes there's a different 2004 kirk bradley article set on the next page yeah uh there's a lot of kirk bradley sedations in this yeah this piece which is great can can i just uh there was one thing in the majority that i meant to flag but i didn't that's i think relevant to this discussion is it a blue booking error what i said is it a blue booking error no no no um which is you know relevant to this major questions issue there's the question about how major is this power, right? And how significant is the matter at issue? And on page 11, the majority kind of uses the government's words against it. He says, as the government admits, indeed, boasts, the economic and political consequences of the AIPA tariffs are astonishing. In the president's view, whether we are a rich nation or a poor one hangs in the balance. This is from the introduction to the brief that kind of, for the government, very bold language that I think got a lot of attention. I think we may have mentioned earlier in the show. I thought that was effective. Kind of twist the government's words around. It makes you wonder, when the government was asking for a cert and expedited briefing and a stay, obviously the reason they were asking for it they think this is a major question um yeah almost if you really wanted to ruleify this doctrine i always wonder if the rule should be like if it's a government on top cert petition it's a major questions case like that's why they're here um they don't petition for certain minor questions i mean until john sour reads your blog post and changes their strategy um It also, two pages later, there's this line I didn't mention earlier where they sort of, you know, Robert says, you know, the central thrust of the government's and the principles of sense proposed exceptions appear to be that ambiguous delegations in statutes addressing the most major of major questions should necessarily be construed broadly. But it does not follow from the fact that a statute deals with major problems, that it should be read to delegate all major powers for which there may be a colorable textual basis. it's in precisely such cases that we should be alert to claims that sweeping delegations particularly delegations of core congressional powers lurk in ambiguous statutory text there is no major questions exception to the major questions doctrine it's one of those chief lines yeah yeah i like that like of course there's no major questions exception to the major questions doctrine but anyway okay who else ends up on gorsuch's murderers row if we uh i mean haven't we do we have thomas too oh yeah we've gotten through almost everybody yeah so the chief chief you know is safe yeah okay chief is the one person who escapes just as grisic's wrath yeah does he pick on justice jackson independently at all uh yes he does a little bit at a footnote very, very briefly, where he, you know, says, is actually responding to Barrett. He says, to the extent Justice Barrett suggests any skepticism, common sense principles of communication might or might not advise, derives from a practical understanding of legislative intent rather than external and substantive Article I values. That poses still further and familiar problems. Down that road lies all the pitfalls associated with reliance on legislative history and those associated with conflating unenacted legislative intent with the law. See Scalia and Garner, the classic volume that's now trotted out, you know, basically by the conservative justices all the time. And then also cites to the Jackson separate opinion that we'll get to without any without any further editorializing. Yeah. Basically, it's sort of like saying like, this is so stupid. I don't even need to I just need to like point to its existence to tell you why this is a bad idea. Yeah. Okay. But what does he say about Justice Thomas? Well, maybe I think we should skip until we get to Justice Thomas's view, which is weird and interesting. But let's just say Justice Thomas has a new theory of the non-illigation doctrine. Yeah, I didn't see this one coming. Which we also had to wait billions of dollars for. Yeah. And Justice Gorsuch is skeptical. He is doubtful. I don't remember if he calls it thoughtful. It's sweeping. It's doubtful. It raises lots of questions. Okay. All right. All right. So then I guess let's go to more opinions. So Justice Barrett, short concurrence. Yep. where she is, you know, I kind of wonder whether she just wrote this only in response to Justice Gorsuch's opinion. Like it's what she says at the beginning, I write this, I write only to address Justice Gorsuch's concurrence. So I guess he circulated his concurrence and then she decided she needed to kind of stick up for her view. I think that's right. And she says, to the extent that Justice Gorsuch attacks the view that common sense alone can explain all our major major questions doctrines he takes down a straw man i have never espoused that view right uh and then she sort of disagrees though also with his claim to find the strong form major questions doctrine right i mean yeah strong form substantive canons uh which revere beyond interpretation and policy making and then she uh you know talks about his cases and she says just as course just seems to disagree pointing to a few late 19th and early 20th century cases but these cases like our modern ones are consistent with my context-based approach they focus on ascertaining not shaping what the statute and dispute uh communicates i would not treat this evidence as precedent for a judicial flex yeah i liked that one that's a good one yeah a little colloquial a little modern so do you have a view on the barrett-grossage fight at this stage uh between which i like more or which one is correct i don't know yeah well well what do you mean by correct i mean correct and the best way to explain what the court has done well i mean i mean i think as a descriptive matter gorsuch is probably right okay but as a matter of like law and what the court's role is is barrett right i guess i'm more drawn to her approach, right? I'm less persuaded that, you know, we need a strong form of the non-delegation doctrine and then less persuaded that that strong form requires, you know, interpreting statutes in ways that are not the best reading, you know, in order to bend over backwards to avoid problems where that I don't necessarily think are problems. Yeah. I think I'm with you. I guess I would say the major questions doctrine justice barrett describes strikes me as fine a perfectly reasonable way to interpret statutes yeah it does not strike me as the major questions doctrine that the court has employed at least in yes like west virginia versus epa might be the most extreme one yeah so and now maybe that's part of what's confusing is maybe you know maybe all along even back in justice corsage's english cases the official story was something more like justice barrett's doctrine but when you look at them and you put all the cases together it's obvious that something bigger is going on yeah i mean i do i do wonder whether the distinction you know they're fighting about like really is a distinction and i think just as gorsuch is sort of getting at this which is like you know she's you know the kinds of things that she the kind of context that she thinks one should bring to bear are kind of substantively normatively laden right yes like going back to the babysitter example, like it's hard to understand that example without some, you know, understanding about what babysitters should do and are allowed to do Right And specifically the example being like can she just go take the kids on a two trip to an amusement park I agree. And I thought until this case that it might be, this is the kind of case where they would come apart in that on non-delegation grounds, it's clear that this is not an Article II case, this is an Article I case, because the power is an Article I power. Yeah. But on like Barrett background grounds, you could have imagined thinking like you could imagine that the Barrett version would care more about the fact that it's foreign affairs than about the article one versus article two question because it's like drawing on norms or context or something rather no she doesn't seem to she seems to now want to say it's the same kind of norms it's just a score which she cares about which is the part like that makes it seem like her view is now a little closer to his yeah but but I agree with you I think weirdly the cases where these would really come apart are kind of weird cases. So like a case where Congress, where we knew that Congress wanted to give away the store, but didn't want to admit it, would be a case where the difference really matters. Like in context, they probably would have wanted to do this, but they didn't. Or like if we have a letter, you know, a secret letter signed by everybody in Congress saying like, here's a way to give the president tariff power, but we won't ever get in trouble for it or something. If it's really about asking congressional intent and we really believe the letter, then presumably we'd say, oh, I guess, you know, I guess here this was their way of sweeping and regulate. Whereas for Justice Gorsuch, he would say, look, the point of the doctrine is to discipline Congress. It's not to empower Congress. Yeah. The other one where it might really matter is as of when do you address majorness? Like there are statutes where something might really not have been very major when it was enacted, but it turns out to be major, like the power to regulate various pollutants or something that turned out to be a bigger deal than we realize. And I think Justice Barrett is logically committed to the view that what matters is majorness at the time of enactment. Yeah. What would Congress have been intending to delegate? Congress wouldn't have thought this power was a big deal because they didn't realize that it applied to a lot of stuff. And it turns out it does. Whereas I think Gorsuch at least can say, no, we care about the majorness now because the non-delegation problem is partly created by unconstrained executive power now to do stuff. but but those are like weird edge cases and it's not clear it's not clear it's what they're really fighting about yeah and uh maybe i guess we'll have to wait and see if there's a case where they actually come to different results right yeah or i do do you wonder if at some point justice Barrett is going to recant West Virginia versus EPA. Hmm. Like the, the result there. Yeah. So, you know, now, now that I've, now that I've thought about it, I probably was a little went along a little too quickly in that one. I mean, you can't do that, but. Certainly can. Yeah. Okay. Okay. Justice Kagan. Okay. Another one that's not as long. Yeah. mercifully, you know, where she is, you know, trying to maintain consistent with prior positions she's taken that there is no such thing as the major questions doctrine. And, you know, why she thinks that here, unlike in some of the cases where she was in dissent in response to the application of the major questions doctrine, you know, the statute just as read as best read does not allow this right although she doesn't spend a lot of time though explaining why this methodology wouldn't have required a different result in the previous cases right um because the gorsuch attack is like look it's great you're looking at things like this is an unprecedented use of the power people didn't think they could do this before but we could have said the same thing about student loan forgiveness I mean, you know, on page two, I mean, she is talking about those prior cases. Right. She says, in the past, I've thought the court used that doctrine to override rather than help discover the best reading of delegation statutes. Right. And so I think here she's saying, well, you can look at those considerations, the kind of major questionsy type things, just to figure out what Congress meant, but you can't use it to override. Right. No, I agree. I just think if you line up the kinds of considerations that are doing the work here and the kinds of considerations that she thought couldn't do as much work there. I mean, again, every case is in the eye of the beholder. So I'm not saying she's being hypocritical. But I do think it's a little unsatisfying. She has a footnote where she kind of defends her consistency. She says, you know, Justice Gorsuch says, I now must be applying the major questions doctrine in his own version of it. given how strong his apparent desire for converts, I am almost regret to inform him that I am not one. But that is the fact of the matter. I proceed in this case just as I did in West Virginia and Nebraska. I consider a delegation provisions language, broaden the scope to take in the statutory setting, and apply some common sense about how Congress normally delegates. I'll let Justice Gorsuch relitigate on his own our old debates about other statutes unrelated to the one before us. so you know you know i think trying to respond to the you know allegation of accusation of hypocrisy yeah well i mean she responds to it by denying it which is fine but she doesn't respond to it by rebutting the evidence yeah um which she doesn't have to yeah okay so i think it's about all i have on that one then we have a you know short five-page opinion by justice jackson you know kind of robustly defending the use of legislative history uh-huh i thought this was fine i mean if we were looking for some you know new intellectual underpinning for the use of legislative history and you know i i don't think this really provided it it's funny just because like i feel like the rejection of legislative history like house and senate committee reports is one of those few things everybody kind of reached consensus on yeah so i like that justice jackson's bringing it back yeah i'm not sure she's wrong i actually think in some ways the the rejection of legislative history sometimes has gone overboard yeah like you know the court's gone from sort of like well these things are manipulable and you shouldn't like use underplace the text to like we just never want to know what them at all yeah yeah which is like famously not a standard that they apply to the constitutional interpretation where they look at, you know, they're careful about when do we use these statements and when don't we, but anyway. So it's not bad. It's just funny because it's like, you know, the old meme about like, you know, nobody, nobody, Justice Jackson. Actually, we should care about legislative history. Senate committee reports. Okay, so then to send by Justice Thomas, he's got a new view of non-delegation. I confess I don't fully understand it. I was hoping you would explain it to me. uh yeah the core i mean this is this is great stuff uh i feel like this opinion is getting a little bit dragged on the social media sites you have blocked but justice thomas thinks that the non-delegation doctrine really only applies to deprivations of life liberty and property and so it's related to the process clause and so the executive branch is bestowing gifts grants or administering the resources to the United States, that's much less questionable on non-delegation doctrines versus sort of making rules that affect people's life, liberty, and property. And so why do tariffs not affect property? Well, they don't affect the property of citizens. Yeah, yeah. Although indirectly they do, but... Sure, but that's... So, and to get there, like, involves weaving together Michael McConnell's great book about the relationship between Article I, Article II, and the traditional powers of the king. It involves an underappreciated D.J. Bamsai article about sort of the relationship between private rights and non-delegation, McConnell and Chapman on the relationship with the new process of separation of powers clause. There's like a bunch of, there's a really good, Caleb Nelson too. This also has a great literature. He sort of weaves them together in a way that may not quite be what any of them say. And I need to spend some more time with this to figure out exactly where all the moving parts are. But that core idea is not crazy, both in terms of sort of the values you might care about and about trying to sort of figure out what an administrable line is between permissible and impermissible delegations. Now, it does have some problems, that just as Scorsage points out, like it's really not what anybody has been talking about in the non-delegation debates for a long time. So it has a novel feel. And it's not consistent with a couple of the most sort of like canonical historical examples. Probably the most canonical example of a fight about non-delegation at the founding in those terms was the debate about establishing post roads where Congress has this hilarious debate about whether they have to, in the post-toys legislation, just specify the starting point and ending point of the road, or they also have to specify like 18 points along the way. Like, can the president have the discretion to figure out how to get from point A to point B, or do they have to tell him? And the forces that say, no, no, no, they have to tell him when. But in Justice Thomas' view, that was misconceived, because where the post-toys goes doesn't implicate life, liberty, or property. And so why would this just not be a structural implication? of the like festing clauses? Well, it is, but so part of the question is what is legislative and what is executive? So the McConnell view, which is originally the Krosky view, the drafting of Article 1 and 2, is that there are powers that are sort of like in their nature legislative and in their nature executive, which come from sort of like the British understanding of separation of powers. And those are due process-y powers? And some of the powers that are in their nature executive are given to Congress and some aren't. Things like tariffs that the king used to do now are given to Congress. And so they are in a way, when those are delegated back, it raises different kinds of questions than when powers that are in the nature legislative are exercised by Congress. It sort of relates to the question of what would the inherent Article 2 authority have been as well. So this part's a little complicated and I'm not totally sure I understand how all the parts fit together from the sources. But part of the other problem is the non-delegation doctrine has always been a little bit tricky to derive from the vesting clauses alone. Because everybody agrees, like in a non-delegation case, the legislature has enacted a thing called a law that the president is purporting to carry into effect. The question is whether or not withstanding the fact that it's called a law and the president's carrying into effect, it's like still unconstitutional. because it's really a delegation. Yeah. And so that's why you need all these more complicated apparatuses about like, well, what is the power? What are the rules? What are the consequences? Try to get there. Yeah. The one other, I think, funniest part of this opinion also is about, is footnote one, which is about whether tariffs or taxes. And Justice Thomas explains that he's going to refer to these charges as duties, not tariffs or taxes, because traditionally, you know charges for importing a customer impost is called a duty and the word tariff was actually the schedule was the name for the schedule of the listing of duties not the duties themselves and the word tax i've seen this quoted as like very political because i guess i guess it's political i guess it's a left-wing view to say that tariffs are taxes and the trump administration's view is the tariffs are not taxes because everybody's against tax increases i think that's the political stakes. So I've seen this quoted as like, here is Justice Thomas pivoting the Trump talking point, the tariffs are not taxes. But it's funnier because he actually thinks tariffs are not tariffs. He thinks these tariffs are actually duties. Okay. Yeah. Okay. Well, I'm running on esteem. I think we should probably talk about the dissent. I don't know if you had anything you wanted to say about Gorsuch's response to the Thomas view. No, no, no. Okay. And then, you know, I don't think we're going to get through all 63 pages of the Kavanaugh dissent. Yeah. This is kind of like the Purdue Pharma case where he had that like incredibly long dissent. He was super mad. Yeah. Look, this is a big deal. President Nixon could do it. Yeah. Can we just talk about the one piece, which is this idea that the major questions doctrine just shouldn't apply in the foreign affairs context? Yeah. So I guess I just don't understand the overarching premise that like foreign affairs is like a thing for the president. Right. I mean, there is no foreign affairs clause in the Constitution that's in Article two. Right. There's actually a bunch of discrete, you know, foreign affairs relevant powers that are actually like some of which go to Congress and some of which go to the president. And so this is just like, this is a thing that gets said a lot, including by Justice Kavanaugh, kind of a lot. It just seems to me totally made up. It seems to be totally anachronistic and like totally functionalist. Yeah. So, I mean, look, Justice Kavanaugh is sometimes totally anachronistic and functionalist. Here are two points in defense of it, I guess. I do think there are a lot of cases that kind of seem to create something like that across a range of doctrines. They might really be about other things. They might be that the jurisdiction of the U.S. courts usually doesn't apply extraterritorially. That a bunch of things that involve interaction with other countries are governed by the political question doctrine. So I do think if you're doing a kind of, if you're looking at the forest and not the trees, you might see a big foreign affairs forest where the judiciary usually fears to tread. And that's where Gorsuch says, well, yeah, that's because a lot of those things are Article II powers. Like it's, you know, they're different Article II powers and here there isn't an Article II power. So that's why it's different. And then Kavanaugh responds to the quote unquote thoughtful concurrence, which is Gorsuch, to say, yeah, okay. but that would be it would be jurisprudentially chaotic to try to now create a new approach tying the applicability of the major questions canon in the foreign affairs context to such uncertain triggers. And I think what Justice Kavanaugh might say is look, in a different world where Justice Gorsuch was in charge we would have always been careful in all those cases to explain where our kind of like foreign affairs carve-outs were coming from. Yeah. But the truth is we didn't. We just kind of like created a foreign affairs forest. And now if you Justice Gorsuch want to head in there and try to kind of like carefully map how it actually works under the clause. That's a lot of work and jurisprudentially chaotic. And I'm just going with the forest. Yeah. I mean, I do think that's not giving the precedents enough careful credit and it's not very lawyerly. Yeah. But there's a common sense aspect to it, I think. Okay. Do you, I heard somebody suggest this opinion was evidence that Justice Kavanaugh was auditioning to be appointed chief justice. What? No. But there's not a vacancy for chief justice. Well, as we all know, various people have been calling on the chief justice to resign for a decade now. That seems unlikely. I mean, you know, chief justice is, I think he's 71. I think he enjoys his job. Yeah. I think he's doing a perfectly good job at it. Yeah. So I don't think he's going anywhere in the next two or three years. Yeah. And I guess the charge is that this is sort of like, this is an opinion written to please Trump. No. I don't buy it. I don't think. No, I think this is just, these are his views. Yeah. He's very pro-president, pro-executive power. I wish, you know, that had, I would like to see, you know, a little bit more consistency when you compare this with the Biden era. major questions cases. But, you know, I think that that is, I think, you know, that inconsistency is a little, a little harder to justify, but yeah. So is this case a big deal? Uh, I mean, I think so. Um, in a couple of ways. So, I mean, first, you know, politically, it's The biggest rebuke the court has given to this administration, it's going to change the president's rhetoric with respect to the court and, you know, how that goes. And I think is maybe going to, you know, inform how the court treats him in the next couple of years. Yeah. I mean, not, you know, not formally, right? But I just, I think that, you know, if the president is really kind of taking a bunch of broadsides against the court, you know, that might make them a little bit less inclined to give him any benefit of the doubt. So that seems important in terms of the economy. I guess we need to see exactly how it shakes out, whether the president is able to completely restore the same regime using cobbling together some of their authorities. I don't know. Yeah. I just don't know enough to know. I mean, my guess is it's actually going to be a little harder to do exactly what he's been doing. Yes. You know, and so that could have a big, that could have some meaningful economic impact. So I don't know. I think it's, and, you know, and it is, we are seeing at least some of the conservative justices, you know, showing us a little bit of methodological consistency. You know, applying rules that seem to be kind of developed for rating in Democratic administrations, applying it to Republican one. So there's something to that. Now, I mean, I think I already previewed this, but, you know, some of my lefty friends are immediately going to go to, you know, the interest of capital, you know, win over Trump. And, you know, we'll see. It would be nice to have a rebuke of the president in the kind of the immigration context or something. And we will see if we get one of those by the end of the term. Right. And Abrego Garcia and AIRP versus Trump don't count. But yeah, I mean, they're they're they're muted. Right. I mean, they're they're they're not nothing. But no, I've heard the version of yes. The lesson is, you know, you can mess with the immigrants all you want, but don't mess with the bond markets. Yeah. Lisa Cook. And and, you know, I don't think that's fair, but I was trying to think when is the last time the court ruled against the president on like an executive action that was this important to him? Like, obviously Youngstown. and then the question is is boomed in versus bush student loans no i don't think so not as important not nearly as the covid covid stuff biden wasn't mad yeah he probably wanted to lose that case maybe i mean they came obviously what about what about the medicaid expansion and the affordable care act yeah that's just i don't know just something more like i'm tempted to say this is the second coming of Youngstown. But also the part of the striking thing is that there hasn't been a second coming of Youngstown since Youngstown. Yeah, that's interesting. And that in a way, that makes it even kind of anticlimactic. Like you read Youngstown and it's like, okay, the president has to follow the law. Yeah. Big whoop. Yeah. But it's when the port says no to the president about something that he really cares about. Yeah. That's actually always, always a little bit of a miracle. Yeah. Okay. Well, I think that's, that's what we got, right? Yeah. Thanks very much for listening. Please rate and review on the Apple Podcast app or wherever you get your podcasts. Visit our website, dividedargument.com, for episode transcripts. Blog.dividedargument.com for posts and commentary by the extended Divided Argument universe. Store.dividedargument.com for merchandise. Send us an email pod at dividedargument.com or leave us a voicemail, 314-649-3790. Thanks to the Constitutional Law Institute for sponsoring all of our endeavors. Thanks to Deb Cafaro for your support of the Constitutional Law Institute. And thanks as well to the University of Chicago Women's Board. And if there's a long delay between this and our next episode, it will be because we've gotten stuck in a very deep rabbit hole trying to figure out the origin of no-no a thousand times no. Yes. The case of Cemento. We'll see you next time. Bye. Bye.