It's odd to me that something as fundamental as 'can the President unilaterally impose tariffs on any country he wants anytime he wants' is apparently so ill defined in law that 9 justices can't agree on it.
Additionally, the law in this case isn’t ill defined whatsoever. Alito, Thomas, and to a lesser extent Kavanaugh are just partisan hacks. For many years I wanted to believe they had a consistent and defensible legal viewpoint, even if I thought it was misguided. However the past six years have destroyed that notion. They’re barely even trying to justify themselves in most of these rulings; and via the shadow docket frequently deny us even that barest explanation.
Very respectfully, there is no comparison between Trump and Biden in this respect. Indeed, the court adopted a new legal concept, the Major Questions Doctrine, to limit Biden continuing the Trump student loan forbearance.
> https://en.wikipedia.org/wiki/Major_questions_doctrine
I've read the Wikipedia page before and also reviewed it before posting, but thanks for your insightful analysis.
Care to share when it was used in the majority before the current Roberts court?
Basically the FDA tried to use its powers to regulate drugs and devices to regulate nicotine (drug) via cigarettes (device.) The conservatives on the court said, in effect, “look obviously congress didn’t intend to include cigarettes as a medical device, come on.”
Then Congress passed a specific law allowing the FDA to regulate cigarettes. This is how it should work. If congress means something that’s a stretch, they should say so specifically.
I don't have as much time to offer a similar assessment of the first two 'official' Major Questions Doctrine cases in the Biden administration, but neither was nearly as contentious as the FDA reversing its prior position.
For this reason, I see this decision as an argument against an agency changing course from an accepted previous (but not Congressionally defined) perspective. However, Chevron—at least according to interviews with lawmakers responding to the 'MQD' usage—ran counter to what the supposed understanding of how agency work would function. Again, I can find primary sources later.
1. https://www.nytimes.com/2000/03/22/us/high-court-holds-fda-c...
You phrased something very poorly. Someone replied and you moved the goalposts; claiming that you were actually referring to the majority using a concept. And now you’ve moved the goalposts again.
I don’t know why you’re doing backflips to avoid admitting that you were wrong.
I wasn't wrong - the first time the concept was named in a decision was in the Biden administration. It sounds like you're not actually reading any of these, or aware of this issue?
I do agree that the idea that some agency actions should be used appeared in the case OP cited. But it's obvious that SCOTUS is using this concept much more broadly now.
A lot of people are capable of seeing through you.
This fake independence works so well, that most Hungarians lie themselves that judiciary is free.
He is all over the map, but not in a way that seems consistent or predictable.
Wasn't it JFK who said "We choose to Not do these things bc they're kinda hard actually"? /s
* https://en.wikipedia.org/wiki/Brett_Kavanaugh#Sexual_assault...
If any justice deserves to be impeached it’s him. I can’t believe they approved him in the first place. Anita Hill sends her regards.
https://americanoversight.org/email-suggests-that-supreme-co...
His patrons lavish him with gifts because they don't want him to retire, not because they want a specific ruling.
Keep doing exactly what we want you to do, or the money goes to someone who will.
Which is also a message to the rest.
You are correct compared to the $320k/year salary these empty nesters pull these things seem not that expensive. So why not just save up and buy them himself?
Yes, RED FLAG. Because apparently he likes nice things and spending money so much he can't seem to afford them himself or forgo the gifts and spare himself the scandal.
Watching from across the Atlantic, I was always fascinated by Scalia's opinions (especially his dissents). I usually vehemently disagreed with him on principle (and I do believe his opinions were principled), but I often found myself conceding to his points, from a "what is and what should be are different things" angle.
Despite the larger population and improved access, my guess is that the quality of Supreme Court Justices today is probably worse than in 1927 when it decided Buck v Bell (which says it's fine for states to have a policy where they sterilize "unfit" citizens, straight up Eugenics)
Ideally you'd want to reform this hierarchically, but supposing we can only fix that final court, you want say a committee consisting of roughly a couple of academics who've taught this stuff, a couple of real on-the-ground attorneys who've argued before this court, a couple of retired judges from this court (if it had age limits, but today it does not) or the courts below it who've done this job, and five otherwise unconnected citizens (no specific business before any court now or expected) chosen at random the way most countries pick their juries.
That committee is to deliver a list of several people best qualified to fill any vacancies on the court which arise before the next committee does the same, if such a vacancy arises you just go down the list.
How are these members of the committee chosen then? Seems like you're just moving the problem around, if choice of committee member is also subject to partisan incentives.
Eg., members of the Supreme Court of the UK are appointed by the King on the advice of the Prime Minister. The Prime Minister is required by law to recommend the person nominated by an independent commission.
The selection must be made on merit, in accordance with the qualification criteria of section 25 of the Act, of someone not a member of the commission, ensuring that the judges will have between them knowledge and experience of all three of the UK's distinct legal systems, having regard to any guidance given by the Lord Chancellor, and of one person only.
https://en.wikipedia.org/wiki/Justice_of_the_Supreme_Court_o...
This seems to work fairly well and, although specific decisions are argued over as part of normal political discourse, it is generally seen as being non-partisan.
Ireland (which also has a common law legal system) has a similar setup, with the President appointing supreme court justices based on the recommendation of the government who, in turn, are advised by an independent panel. That advice is technically not legally binding, so this is in theory a less-strictly non-partisan system - but in practice it works out about the same.
Any country which struggles to appoint justices in a nonpartisan way will also struggle to assemble a panel in a nonpartisan way, I think.
Not totally immune to issues of partisanship, but at least somewhat insulated.
BTW, the original intent of the Electoral College in the United States was pretty similar to this. Electors were supposed to be independent actors exercising their independent judgement in selection of the president. It wasn't sustainable for long.
The electoral college is basically an appendix, except it was never a useful organ. It malfunctioned completely, right out of the gate.
Possibility to beat this deadlock: one party picking few candidates from the commission and OTHER party (parties) accepting one of them. Still can lead to "choose the lowest evil" and I can imagine Repiblicans not accepting anyone of Democrata were ruling.
Thomas wants to pretend he's the OG originalist, but I don't think he is anywhere near Barrett's peer.
Curious if others have different readings.
The fact that the administration of tariffs is so much better defined than really anything else shouldn’t be surprising because tariffs is the proximate cause of the Revolutionary war.
It’s embarrassing that the 3 justices put their partisanship ahead of the clear language of the constitution and explicitly stated intentions of the founders.
The bigger issue I think is that that statute exists in the first place. "Emergency powers" that a president can grant himself just by "declaring an emergency" on any pretense with no checks or balances is a stupid idea.
That doesn't sound like "well, this would be too hard to undo" to me, and making that argument elsewhere doesn't diminish the main point.
> The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises
[0] https://constitution.congress.gov/browse/essay/artI-S8-C1-1-...
But yes it is basically eliminating parliament and rule by a monarch- making a mockery of 1776.
If giving the US President unlimited and arbitrary authority as long as they can claim it was useful for meeting a legal obligation created by Congress were the correct interpretation then we need look no further than the "Take Care" clause of the US Constitution, where the US President is given the obligation to take care that all laws are faithfully executed -- which, with this interpretation, would mean that any action would be under the purview of the US President as long as they could claim at doing that action resulted in the laws being faithfully executed.
As a counter-example, if the case was, say, "can a college use race as a factor in admissions"[0], you get 3 justices siding in favor using dogshit reasoning, just from the other side of the aisle. It's a bit ridiculous to think there aren't Democrat partisan judges on the Supreme Court.
0: https://en.wikipedia.org/wiki/Students_for_Fair_Admissions_v...
Besides, conservatives including conservative justices are literally pro racial profiling and arresting people on race only.
https://en.wikipedia.org/wiki/Regents_of_the_University_of_C...
When you need every vote to get legislature to pass, because you control 51% of a chamber, backbenchers on the ideological fringe of a party, (DINOs and RINOs) have a lot of power.
When you have a majority with comfortable margins, you can care a lot less about what the Sinemas and Manchins and McCains of a party think.
There are many reasons for why two-party FPTP sucks, but this phenomena is present in multi-party systems, too. And, of course, sometimes politicians end up crossing the aisle, much to the chagrin of the party whip.
"In fact, [proportional representation] robs him of personal responsibility; it makes of him a voting machine rather than a thinking and feeling person. In my view, this is by itself a sufficient argument against proportional representation. For what we need in politics are individuals who can judge on their own and who are prepared to carry personal responsibility."
https://www.economist.com/democracy-in-america/2016/01/31/fr...
[0] Unless that's power over the money (ie Federal Reserve) because that's a special and unique institution. (ie: they know giving the president the power over the money printer would be disastrous and they want to be racist and rich not racist and poor.)
The problem in this case is that Congress made such a mess of the law that the lower court judges didn't think the outcome obvious enough to grant the injunction.
The lower courts issued several such injunctions.
https://www.nytimes.com/2025/05/29/us/politics/trump-tariffs...
"On Wednesday, the U.S. Court of International Trade dealt an early blow to that strategy. The bipartisan panel of judges, one of whom had been appointed by Mr. Trump, ruled that the law did not grant the president “unbounded authority” to impose tariffs on nearly every country, as Mr. Trump had sought. As a result, the president’s tariffs were declared illegal, and the court ordered a halt to their collection within the next 10 days."
"Just before she spoke, a federal judge in a separate case ordered another, temporary halt to many of Mr. Trump’s tariffs, ruling in favor of an educational toy company in Illinois, whose lawyers told the court it was harmed by Mr. Trump’s actions."
If multiple appeals courts thought this case was a winner for the administration, we have an even bigger problem.
(Also, no. They might, for example, disagree on immediate irreparable harm, but not the overall merits.)
> Cases going on the emergency docket are not common.
Sure. But some of them look clearly destined for it. Including this one.
Do we? The law here was a mess. Prediction markets didn't have the outcome at anything like a certainty and the relevant stocks are up on the decision, implying it wasn't already priced in -- and both of those are with the benefit of the transcripts once the case was already at the Supreme Court to feel out how the Justices were leaning, which the intermediary appellate court wouldn't have had at the time.
> Sure. But some of them look clearly destined for it.
It's not a thing anyone should be banking on in any case. And if that was actually their expectation then they could just as easily have not stayed the injunction and just let the Supreme Court do it if they were inclined to.
Predictable result, unpredictable timing.
> they could just as easily have not stayed the injunction and just let the Supreme Court do it if they were inclined to
Hindsight is, as always, 20/20.
That wouldn't explain the prediction markets thinking the administration had a double digit chance of winning. The sure things go 99:1.
> Hindsight is, as always, 20/20.
It's not a matter of knowing which docket would be used. Why stay the injunction at all if you think the Supreme Court is going to immediately reverse you?
I am not a believer in the accuracy of prediction markets.
> Why stay the injunction at all if you think the Supreme Court is going to immediately reverse you?
They didn't think that.
They thought SCOTUS would back them up faster.
Back in November: https://fortune.com/2025/11/07/trump-tariffs-supreme-court-i...
"That suggests a potentially lopsided 7-2 vote against Trump, who appointed Gorsuch, Barrett and Kavanaugh during his first term."
We got 6-3.
https://news.bloomberglaw.com/international-trade/trump-tari...
"Though he normally aligns with Thomas and Alito, Gorsuch may be more likely to vote against Trump’s tariffs than Kavanaugh is, according to Prelogar. “It might actually be the chief, Barrett and Gorsuch who are in play,” she said."
https://www.quarles.com/newsroom/publications/oral-arguments...
"During the argument, several Justices expressed skepticism about the IEEPA expanding the President’s powers to encompass the ability to set tariffs."
This was the widespread conclusion back then; that the justices were clearly skeptical and that the government was struggling to figure out an effective argument.
They were the court removing the injunction, i.e. saying the tariffs had enough of a chance to be upheld.
Again, a stay does not necessarily mean “we think this is a winning case”. It can mean “the potential damage from this exceeds a threshold”. In fact, the appeals court affirmed the underlying ruling striking down the tariffs.
https://www.hklaw.com/en/insights/publications/2025/09/court...
> The U.S. Court of Appeals for the Federal Circuit, in a 7‑4 decision on Aug. 29, 2025, struck down President Donald Trump's use of the International Emergency Economic Powers Act (IEEPA or the Act) to impose sweeping tariffs on nearly all imported goods from nearly all U.S. trading partners. Although the Federal Circuit, in V.O.S. Selections, Inc. v. Trump, affirmed the U.S. Court of International Trade's (CIT) merits judgment, it nevertheless vacated the universal injunction issued by the CIT and remanded the case for further relief proceedings. The appellate court also stayed its decision until Oct. 14, 2025, allowing time for the government to appeal to the U.S. Supreme Court.
And have fairly regularly to benefit this administration:
https://en.wikipedia.org/wiki/Shadow_docket#Second_Trump_pre...
https://en.wikipedia.org/wiki/J.G.G._v._Trump was vacated within days.
"On Friday, March 14, 2025, Trump signed presidential proclamation 10903, invoking the Alien Enemies Act and asserting that Tren de Aragua, a criminal organization from Venezuela, had invaded the United States. The White House did not announce that the proclamation had been signed until the afternoon of the next day."
"Very early on Saturday, March 15, the American Civil Liberties Union (ACLU) and Democracy Forward filed a class action suit in the District Court for the District of Columbia on behalf of five Venezuelan men held in immigration detention… The suit was assigned to judge James Boasberg. That morning, noting the exigent circumstances, he approved a temporary restraining order for the five plaintiffs, and he ordered a 5 p.m. hearing to determine whether he would certify the class in the class action."
"On March 28, 2025, the Trump administration filed an emergency appeal with the US Supreme Court, asking it to vacate Boasberg's temporary restraining orders and to immediately allow the administration to resume deportations under the Alien Enemies Act while it considered the request to vacate. On April 7, in a per curiam decision, the court vacated Boasberg's orders…"
TL;DR: Trump signs executive order on March 14. Judge puts it on hold on March 15. Admin appeals on March 28. SCOTUS intervenes by April 7.
The emergency docket is whatever they want to treat as an emergency. The decision not to treat this as such - it's hard to imagine many clearer examples of "immediate irreprable harm" - was clearly partisan.
from the start of the "injury":
- 8 days to get to the supreme court
- 2 days arguing in court
- 5 days for the court to reach a decision
https://en.wikipedia.org/wiki/R_(Miller)_v_The_Prime_Ministe...
Similarly in the US, Watergate (Nixon impeachment) took only 16 days, and Bush v. Gore (contested election) took just 30 days to reach a Supreme Court judgement.
Oh look, Trump just declared a new, 10% global tariff because lol laws. Congress is busted. There are essentially zero real laws for the plutocrat class.
That is not how the Supreme Court works. SCOTUS is a political body. Justices do one thing: cast votes. For any reason.
If they write an opinion it is merely their post hoc justification for their vote. Otherwise they do not have to explain anything. And when they do write an opinion it does not necessarily reflect the real reason for the way they voted.
Edit: Not sure why anyone is downvoting this comment. I was a trial attorney for 40+ years. If you believe what I posted is legally inaccurate, then provide a comment. But downvoting without explaining is ... just ... I don't know ... cowardly?
Like I've said before, if you can't tell whether it's a bot or a real person voting, it doesn't matter anyway.
Might as well be a bot either way.
corrective upvote made
Ultimately no system can't stop that if there is a societal culture that tolerates the drumbeat of authoritarianism and centralization of power.
'can the President unilaterally impose tariffs on any country he wants anytime he wants'
No, he can't impost tariffs on any country. He can only impose tariffs on American companies willing to import from any country.
> The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises
(which it does, and expounds upon)
OTOH enforcement of congressional policies is basically always the role of the executive, so the fact that the IRS exists and does things doesn't really impact delegation.
No, they do not delegate the power to lay (set) taxes to the executive, they do assign the executive the function of collecting the taxes laid by Congress.
> Congress doesn’t run the IRS themselves after all
The IRS doesn't freely set taxes, it collects the taxes set by Congress.
Now I'm generally of the opinion that Congress shouldn't be allowed to give the Executive discretion but seems no one agrees with that and Congress would rather let the Executive write "not quite laws" on their behalf.
The quote from the constitution is "The Congress shall have Power To lay and collect Taxes," not for the executive to collect taxes. If they can delegate collecting to IRS in the executive branch, why not can they not delegate the "Power To lay" taxes?
Are you should that would have been a good idea?
...would have been sentenced for his 34 felony convictions and probably never get reelected?
SCOTUS doesn't rule on criminal cases, sentencing for state level crimes is done at the state level and he could have still run for president in jail.
The fact that the conviction only made his polling go up should tell you what the result of jailing him would have been.
SCOTUS ruled that the President has immunity from criminal prosecution.
(And they very regularly rule on other, more mundane criminal cases. Where on earth did you get the idea they don't? https://oklahomavoice.com/2025/02/25/u-s-supreme-court-tosse... as a super random example.)
> sentencing for state level crimes is done at the state level
SCOTUS ruled that said immunity applies to state crimes.
https://en.wikipedia.org/wiki/Trump_v._United_States#Opinion...
This was... rather large news.
https://www.politico.com/news/2025/01/10/trump-unconditional...
> “This court has determined that the only lawful sentence that permits entry of judgment of conviction without encroachment on the highest office of the land is a sentence of unconditional discharge,” Merchan said at the sentencing.
> The fact that the conviction only made his polling go up should tell you what the result of jailing him would have been.
We have precisely zero information on what a campaign by a jailed candidate who can't travel, campaign, or schmooze donors would result in.
And yet he was criminally prosecuted.
> And they very regularly rule on other, more mundane criminal cases.
Sorry, they don't convict in criminal cases.
> “This court has determined that the only lawful sentence that permits entry of judgment of conviction without encroachment on the highest office of the land is a sentence of unconditional discharge,” Merchan said at the sentencing.
You're conflating things again. He was not punished for his crimes. That doesn't mean he was not convicted. You can't be immune and convicted. If he was immune, the case would have been thrown out. He's still a felon and so, clearly, not immune.
The immunity granted by SCOTUS was far more limited in scope than news outlets would have you believe.
> We have precisely zero information on what a campaign by a jailed candidate who can't travel, campaign, or schmooze donors would result in.
This time it will be different, surely!
BEFORE THE RULING.
Come on.
Edit: Oh, maybe you’re thinking of things like the Colorado ballot eligibility case. Then if he hadn’t been electable, he would have been sentenced to serve time. Maybe, but are you arguing the Constitutional merits of Trump losing that case? Or are you okay with partisan hacks in the SC as long as they are Dems instead?
I don't think a Biden-packed SC would've found the President to be immune to criminal charges, no.
> And my understanding was he was sentenced for the felonies, to unconditional discharge, because he was days away from beginning his second term.
He was sentenced to nothing, directly because of the SCOTUS ruling. Per the judge: "the only lawful sentence that permits entry of judgment of conviction without encroachment on the highest office of the land".
Pre-SCOTUS ruling, no such "encroachment" existed.
Again, at the actual sentencing, his ruling stated an unconditional discharge was "the only lawful sentence that permits entry of judgment of conviction without encroachment on the highest office of the land".
"I can sentence you, but only to nothing" is functionally not being able to sentence him.
Anyway, in agreement with your larger point, the legal analyst at https://youtu.be/4tbaDI7ycrA?t=592 says he believe this SCOTUS would not have allowed a real sentence, so my nitpicking about the interaction of the 2024 decision with the lower court's sentencing doesn't matter much; SCOTUS would have let Trump go either way, and probably a Biden-packed court wouldn't have.
It's just another sign that modern Republicans aren't truly "Constitution-lovers" or textualists, that their leader is only safe because judicial activism invented immunity for him.
No, I'm thinking of the get-out-of-jail card they gave him in Trump v. US that immediately impacted NY v. Trump.
> Then if he hadn’t been electable, he would have been sentenced to serve time.
No, I think an electable person should still be able to be locked up for crimes.
> Or are you okay with partisan hacks in the SC as long as they are Dems instead?
I think the only chance of saving SCOTUS from partisan hackery is to stop surrendering.
Bullshit.
https://en.wikipedia.org/wiki/Supremacy_Clause
SCOTUS overturns state laws and convictions plenty.
State criminal case: https://oklahomavoice.com/2025/02/25/u-s-supreme-court-tosse...
State laws held unconstitutional: https://law.justia.com/constitution/us/state-laws-held-uncon...
Part of the problem is it requires an amendment so you need a super majority.
Imo democrats are waiting until they have enough of a majority to tank the reputation hit court packing would bring, but then lock it to 15 after they do so.
[1] https://www.judiciary.senate.gov/press/rep/releases/grassley...
Democrats are finally waking up to this, I think, given the recent retaliatory gerrymandering in CA and VA.
The court is an expression of political power. Expressing political power through it is not stupid.
So you would get to pack the court for the rest of your current term before the other party gets back in and packs it the other way, and thereafter lose the courts as a check on the party in power forever because the first thing a party would do when they get into power is pack the courts.
It's a monumentally stupid idea.
It would need to come with a commitment to a package of difficult to undo (i.e. amendments) reforms. SCOTUS term limits, preventing the Senate from refusing to even consider nominees, bans on justices receiving gifts (https://www.propublica.org/article/clarence-thomas-scotus-un...), revocation of Presidential immunity, etc. You pack the court with an explicit promise to largely return to the old status quo when it's fixed.
On top of that, Clarence Thomas is the oldest person on the court and Alito is only two years younger. By the end of the next Presidential term they'll both be in their 80s. You don't have to pack the court, you just have to be in office for the term or two after this one.
I don't think it's 100% possible to stop a determined political movement in the US from doing A Holocaust, but I think it's worth at least trying to make it tough.
We can't 100% prevent anything; the Constitution could get amended to permit mass summary executions, with enough votes and public support. That doesn't mean it's not worth trying to make that tougher to accomplish.
That is what I describe as the "package" of reforms, yes.
> The thing that would help that is a constitutional amendment prohibiting court packing.
Good idea! Pack the court, and in that law, include a trigger provision that repeals it as soon as said amendment is passed.
(This has similarly been proposed in gerrymandering.)
Except then the other party just packs the court again instead of passing the amendment, whereas if you already have the votes to pass the amendment then you would just do that without packing the court.
The easiest time to reduce executive power is when your party is in the executive branch to sign the bill.
This has the exact same problem you're complaining my proposal has; it can be undone, quite easily. Probably more easily.
The best case scenario would be to somehow get both parties actually targeting the other's corruption instead of just trying to get the votes needed to be the ones sticking the money in their own pockets.
That's not what it looks like in most cases. In the first half of any term the next election can't gain you the Presidency but it could lose you the Senate. On top of that, when it isn't the deciding vote, e.g. the first of either Alito or Thomas to be replaced, a moderate is a much better hedge than the coin flip even in the second half of a term, because if you take the moderate and then lose the next election at least you have the moderate in the other party's majority, meanwhile if you win the next election then you keep the majority regardless.
Which is to say, that's only likely to happen in the next few years if it happens for the second of the two Justices in the second half of a Presidential term and the Democrats lose the subsequent Presidential election.
We form other courts by lot. Constitutionally, there just must be a Supreme Court. It doesn’t say how it should be composed.
Packing is a band-aid, and likely to be unpopular. This is a fix with a less nakedly-partisan result, so should be easier to sell.
We're already down that road; SCOTUS put us on it.
The question is now how much damage it'll do to the car to do a U-turn.
> would hopefully lead to immediate impeachment…
This describes like a hundred things in the Trump second term so far.
nope not true at all. go away troll
> Trump v. United States, 603 U.S. 593 (2024), is a landmark decision of the Supreme Court of the United States in which the Court determined that presidential immunity from criminal prosecution presumptively extends to all of a president's "official acts" – with absolute immunity for official acts within an exclusive presidential authority that Congress cannot regulate such as the pardon, command of the military, execution of laws, or control of the executive branch
Seems accurate.
1. Immunity for core constitutional powers
2. Presumptive immunity for official acts.
3. No difference from anyone else for non-official acts
You quoted:
> immune to prosecution for official acts
That describes all three of your counts just fine. A little broadly, but it’s correct.
Make stupid laws, win stupid prizes.
It's almost like the legal system is designed so that you can get away with murder if you can afford enough lawyers.
It's kind of like pointing at any major codebase and arguing that it's "stupid" to have millions of lines of code.