President Trump's economic misadventure is already being challenged in court. The resulting cases will test the consistency of conservative judges' hostility to broad statutory delegations of power.
I agree our judiciary system has been compromised, even infected, by hapless evil doers masquerading as fair minded adjudicators. However, Professor Vladeck provides me with the best insightful analysis available. He’s indispensable for my understanding of current issues concerning the courts.
An underdiscussed aspect of these separation of powers cases is that the Executive increasingly invokes authorities in transparent bad faith to pursue preferred policies--Biden *obviously* did not think the COVID pandemic necessitated broad student debt cancellation, and Trump, to the extent he has any considered view at all, doesn't really think our trade deficit with Madagascar is a emergency. But despite the President's constitutional obligation to "take care that the laws be faithfully executed," the courts have never been willing to second-guess these quasi-factual predicate determinations, and so instead we get doctrinally inconsistent rulings on things like the MQD that police such bad faith power grabs sub rosa.
Given that Trump has effectively claimed the power to unilaterally regulate *all* foreign trade subject only to the proper incantations, I suspect the Court will take an extremely skeptical view, but it would be nice if instead they simply treated the Take Care clause seriously and asserted the authority to acknowledge when the President is violating it.
IANAL but I also don't think one should need to be one to chime in on such weighty things. I wouldn't argue non-delegation or MQD.
I wouldn't argue non-delegation because I think a fair reading of the law does not delegate to the President the ability to override Congress's entire trade policy by simply declaring the results of those policies, some of which Trump 1 negotiated, a national emergency. The EOs basically argue that existing trade deficits, which are the results of existing Congressionally-ratified policy, are the emergency that allows him to act. Allowing that would make no sense and a simple statutory reading + congressional intent analysis should get you there.
SCOTUS should take the time to reverse or amend INS v. Chadha, where SCOTUS decided the President needed to sign a Congressional rejection of his use of delegated power. As White prophetically notes in his dissent: "The prominence of the legislative veto mechanism in our contemporary political system and its importance to Congress can hardly be overstated. It has become a central means by which Congress secures the accountability of executive and independent agencies. Without the legislative veto, Congress is faced with a Hobson's choice: either to refrain from delegating the necessary authority, leaving itself with a hopeless task of writing laws with the requisite specificity to cover endless special circumstances across the entire policy landscape, or, in the alternative, to abdicate its lawmaking function to the Executive Branch and independent agencies. To choose the former leaves major national problems unresolved; to opt for the latter risks unaccountable policymaking by those not elected to fill that role." There's a fair-to-middling chance that the privileged resolutions repealing this can pass both houses. Trump should then have no say in the matter. Delegation revoked!
I think the MQD is frankly ridiculous and we should not entertain that it's actually a coherent Constitutional theory. It's Calvinball. It might be interesting to see how Alito, Thomas, and probably Gorsuch contort themselves to say this isn't a major question since Fox has now removed the stock ticker from their broadcast.
The current Court has an amazing capacity for sophistry. I could see a majority deciding the tariffs are a political question that can only be addressed by Congress. In a sense, it’s the flip-side of the MQD; instead of deciding “Congress didn’t mean THAT,” they can argue “Congress can fix it if they want.” Is it possible the majority decides it’s a political question?
This is one of the most lucid breakdowns I’ve read on the clash between statutory ambiguity and presidential overreach—especially how the major questions doctrine (MQD) has become a kind of legal workaround for courts unwilling to invoke the non-delegation doctrine directly.
What I find especially compelling is your observation that the real constitutional issue—the President’s obligation to “take care” that the laws be faithfully executed—keeps getting sidelined in favor of abstract statutory readings. We’re left debating whether the incantation of a “national emergency” fits the textual contours of IEEPA, rather than confronting whether that invocation is itself honest or lawful.
If the MQD is to have any coherence, this should be a textbook case: sweeping economic disruption, no historical precedent, and a statute never before used for this purpose. If the Court sidesteps this, it will signal loud and clear that MQD is not a principle, but a partisan instrument.
Some folks might find the citation variants for Supreme Court decisions falling in the trivia bucket, but I found it fascinating. As a retired rare books librarian I remember fielding reference questions from historians relating to case law in the American west. Without friends in the law library across campus helping me parse citations for rulings, I wouldn’t have been much help. You’gotta get ‘em right!
The MQD sounds a lot like an inordinately flexible tool for the Court to countermand what they want, and to support what they want, on an ideological basis. And in a context of a grave and serious presidential initiative, the (newly-discovered) power of the Executive Vesting Clause and the theory of the unitary executive would seem to allow this Court to sustain the tariffs under the thinnest of language from, Congress, like the IEEPA. The Court would use this doctrine to skirt the "unmistakable" conferring of authority that might otherwise be required from the Congress. The tariffs are stupid; ill considered; probably a fraudulent manner in which Trump can act ats the global mob boss that he envisions himself to be. And they are likely not set and implemented with adequate Congressional authority. But when Congress effectively waives or delegates its plain, unambiguous Article I, Section 7, 8 and 9 powers, an Executive like this one will gobble the field -- and rely on his toadies on the Court to back him up. "Thank you; thank you. I won't forget it."
An apparent typo, professor Vladeck—I suspect the private reporters’ efforts were financed by the sales of reports rather than the sales of “reporters.”
It seems to me the president should have to explain / defend 1. That an "economic emergency" actually exists; 2- that the means he has chosen to ameliorate the risk is appropriate, and 3- that the statute actually authorizes him to use these means for the stated purpose -- in other words, that he is authorized by the Constitution, by statute (or both) to impose (exorbitant) tariffs to solve a (purported) economic emergency that is (supposedly) threatening national security.
The average person is without any frame of reference where Trump is concerned other than the Supremes are committed to "Trump can do anything that he damn well pleases." Anyone who is grabbed off the street or has there Visa canceled has to go to court - one at a time please - and challenge their detention wherever they can get to a courthouse, and most likely each tariff will require a case by case challenge by a party with clear standing to do so. Trump can enter sweeping Executive Orders imprisoning, deporting or tariffing the whole world and the legal niceties will tie anyone harmed and judges who try to protect people in knots. No problem; "freedom is just another word for nothing left to lose."
So for us non legal scholars, what should we be hoping for? The Court to embrace MQD, forcing congress to weigh-in on Trump's tariffs. But in all likelihood they would and we'd still be screwed.
If the Court rules against Trump on MQD grounds, Congress would have to pass a bill explicitly giving Trump the tariff authority he now seeks to exercise. But such a bill would almost certainly not garner the 60 votes needed in the Senate, and frankly may not even be able to attain a simple majority given likely GOP defectors such as Paul, Collins, Murkowski, and McConnell. So practically speaking, a loss on MQD grounds would put Trump's tariff plans on halt until at least the next election (and more likely, permanently).
There is conspiracy in the air. Trump dumped stock before the tariffs were defined. Pam Bondi continues to debase herself. She is complicit in Signalgate as a Signal user and too corrupt to recuse herself. Until we have the House, we cannot impeach. We will have job growth because of the CHIPS Act and the Infrastructure bill. But the jobs shipped overseas are not coming home. https://hotbuttons.substack.com/p/jobs-wont-come-back?r=3m1bs
I wish Professor Vladeck would acknowledge the reality of the court we are seeing. All these fancy arguments are irrelevant . This court is corrupt and completely compromised. It is going to do everything possible to help America’s descent into an ugly authoritarianism. We’d be much better off if scholars of the court began to acknowledge this.
I agree our judiciary system has been compromised, even infected, by hapless evil doers masquerading as fair minded adjudicators. However, Professor Vladeck provides me with the best insightful analysis available. He’s indispensable for my understanding of current issues concerning the courts.
An underdiscussed aspect of these separation of powers cases is that the Executive increasingly invokes authorities in transparent bad faith to pursue preferred policies--Biden *obviously* did not think the COVID pandemic necessitated broad student debt cancellation, and Trump, to the extent he has any considered view at all, doesn't really think our trade deficit with Madagascar is a emergency. But despite the President's constitutional obligation to "take care that the laws be faithfully executed," the courts have never been willing to second-guess these quasi-factual predicate determinations, and so instead we get doctrinally inconsistent rulings on things like the MQD that police such bad faith power grabs sub rosa.
Given that Trump has effectively claimed the power to unilaterally regulate *all* foreign trade subject only to the proper incantations, I suspect the Court will take an extremely skeptical view, but it would be nice if instead they simply treated the Take Care clause seriously and asserted the authority to acknowledge when the President is violating it.
IANAL but I also don't think one should need to be one to chime in on such weighty things. I wouldn't argue non-delegation or MQD.
I wouldn't argue non-delegation because I think a fair reading of the law does not delegate to the President the ability to override Congress's entire trade policy by simply declaring the results of those policies, some of which Trump 1 negotiated, a national emergency. The EOs basically argue that existing trade deficits, which are the results of existing Congressionally-ratified policy, are the emergency that allows him to act. Allowing that would make no sense and a simple statutory reading + congressional intent analysis should get you there.
SCOTUS should take the time to reverse or amend INS v. Chadha, where SCOTUS decided the President needed to sign a Congressional rejection of his use of delegated power. As White prophetically notes in his dissent: "The prominence of the legislative veto mechanism in our contemporary political system and its importance to Congress can hardly be overstated. It has become a central means by which Congress secures the accountability of executive and independent agencies. Without the legislative veto, Congress is faced with a Hobson's choice: either to refrain from delegating the necessary authority, leaving itself with a hopeless task of writing laws with the requisite specificity to cover endless special circumstances across the entire policy landscape, or, in the alternative, to abdicate its lawmaking function to the Executive Branch and independent agencies. To choose the former leaves major national problems unresolved; to opt for the latter risks unaccountable policymaking by those not elected to fill that role." There's a fair-to-middling chance that the privileged resolutions repealing this can pass both houses. Trump should then have no say in the matter. Delegation revoked!
I think the MQD is frankly ridiculous and we should not entertain that it's actually a coherent Constitutional theory. It's Calvinball. It might be interesting to see how Alito, Thomas, and probably Gorsuch contort themselves to say this isn't a major question since Fox has now removed the stock ticker from their broadcast.
The current Court has an amazing capacity for sophistry. I could see a majority deciding the tariffs are a political question that can only be addressed by Congress. In a sense, it’s the flip-side of the MQD; instead of deciding “Congress didn’t mean THAT,” they can argue “Congress can fix it if they want.” Is it possible the majority decides it’s a political question?
Outstanding analysis, thanks.
This is one of the most lucid breakdowns I’ve read on the clash between statutory ambiguity and presidential overreach—especially how the major questions doctrine (MQD) has become a kind of legal workaround for courts unwilling to invoke the non-delegation doctrine directly.
What I find especially compelling is your observation that the real constitutional issue—the President’s obligation to “take care” that the laws be faithfully executed—keeps getting sidelined in favor of abstract statutory readings. We’re left debating whether the incantation of a “national emergency” fits the textual contours of IEEPA, rather than confronting whether that invocation is itself honest or lawful.
If the MQD is to have any coherence, this should be a textbook case: sweeping economic disruption, no historical precedent, and a statute never before used for this purpose. If the Court sidesteps this, it will signal loud and clear that MQD is not a principle, but a partisan instrument.
Agree wholeheartedly we need to confront whether the invocation of national emergency is honest or legal.
Some folks might find the citation variants for Supreme Court decisions falling in the trivia bucket, but I found it fascinating. As a retired rare books librarian I remember fielding reference questions from historians relating to case law in the American west. Without friends in the law library across campus helping me parse citations for rulings, I wouldn’t have been much help. You’gotta get ‘em right!
The MQD sounds a lot like an inordinately flexible tool for the Court to countermand what they want, and to support what they want, on an ideological basis. And in a context of a grave and serious presidential initiative, the (newly-discovered) power of the Executive Vesting Clause and the theory of the unitary executive would seem to allow this Court to sustain the tariffs under the thinnest of language from, Congress, like the IEEPA. The Court would use this doctrine to skirt the "unmistakable" conferring of authority that might otherwise be required from the Congress. The tariffs are stupid; ill considered; probably a fraudulent manner in which Trump can act ats the global mob boss that he envisions himself to be. And they are likely not set and implemented with adequate Congressional authority. But when Congress effectively waives or delegates its plain, unambiguous Article I, Section 7, 8 and 9 powers, an Executive like this one will gobble the field -- and rely on his toadies on the Court to back him up. "Thank you; thank you. I won't forget it."
An apparent typo, professor Vladeck—I suspect the private reporters’ efforts were financed by the sales of reports rather than the sales of “reporters.”
Otherwise, please keep up the great work.
It seems to me the president should have to explain / defend 1. That an "economic emergency" actually exists; 2- that the means he has chosen to ameliorate the risk is appropriate, and 3- that the statute actually authorizes him to use these means for the stated purpose -- in other words, that he is authorized by the Constitution, by statute (or both) to impose (exorbitant) tariffs to solve a (purported) economic emergency that is (supposedly) threatening national security.
The average person is without any frame of reference where Trump is concerned other than the Supremes are committed to "Trump can do anything that he damn well pleases." Anyone who is grabbed off the street or has there Visa canceled has to go to court - one at a time please - and challenge their detention wherever they can get to a courthouse, and most likely each tariff will require a case by case challenge by a party with clear standing to do so. Trump can enter sweeping Executive Orders imprisoning, deporting or tariffing the whole world and the legal niceties will tie anyone harmed and judges who try to protect people in knots. No problem; "freedom is just another word for nothing left to lose."
So for us non legal scholars, what should we be hoping for? The Court to embrace MQD, forcing congress to weigh-in on Trump's tariffs. But in all likelihood they would and we'd still be screwed.
If the Court rules against Trump on MQD grounds, Congress would have to pass a bill explicitly giving Trump the tariff authority he now seeks to exercise. But such a bill would almost certainly not garner the 60 votes needed in the Senate, and frankly may not even be able to attain a simple majority given likely GOP defectors such as Paul, Collins, Murkowski, and McConnell. So practically speaking, a loss on MQD grounds would put Trump's tariff plans on halt until at least the next election (and more likely, permanently).
There is conspiracy in the air. Trump dumped stock before the tariffs were defined. Pam Bondi continues to debase herself. She is complicit in Signalgate as a Signal user and too corrupt to recuse herself. Until we have the House, we cannot impeach. We will have job growth because of the CHIPS Act and the Infrastructure bill. But the jobs shipped overseas are not coming home. https://hotbuttons.substack.com/p/jobs-wont-come-back?r=3m1bs
I wish Professor Vladeck would acknowledge the reality of the court we are seeing. All these fancy arguments are irrelevant . This court is corrupt and completely compromised. It is going to do everything possible to help America’s descent into an ugly authoritarianism. We’d be much better off if scholars of the court began to acknowledge this.