Justice pens footnote deflating conservative colleague’s 46-page opinion on Trump tariffs

Sarah K. Burris
20 February
U.S. Supreme Court Justice Neil Gorsuch speaking at the LBJ Presidential Library on Sept. 19, 2019, Jay Godwin

The U.S. Supreme Court on Friday struck down President Donald Trump's tariff, which he had heralded as his chief achievement, ruling that he overstepped his authority in the executive branch.

The U.S. Constitution outlines that the legislative branch makes the laws regarding trade. Trump's attempts to use an "emergency powers" declaration don't hold water, the high court agreed.

The justices split on whether the government must now refund all the money corporations shelled out for tariffs.

Justice Elena Kagan poked her conservative colleague, Justice Neil Gorsuch, in a footnote related to the major questions doctrine, captured Slate legal reporter Mark Joseph Stern on BlueSky.

"Hilariously, Gorsuch and [Justice Amy Coney] Barrett have a side-battle over the major questions doctrine, with Gorsuch writing a 46-page solo concurrence saying it's a substantive canon and Barrett saying it's a mere tool of statutory interpretation," Stern wrote. "So these two can't even agree on what the 'doctrine' actually means."

In her note, Kagan wrote that Gorsuch "[insists] that I now must be applying the major-questions doctrine, and his own version of it to boot."

"Given how strong his apparent desire for converts ... I almost regret to inform him that I am not one," Kagan continued. "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 provision’s language, broaden the scope to take in the statutory setting, and apply some common sense about how Congress normally delegates."

She continued, on page 80 of the document, that "contrary to Gorsuch's suggestion," the "conventional method of interpretation will not always favor (or always disfavor) executive officials, given the variety of delegation schemes Congress adopts."

"I’ll let Justice Gorsuch relitigate on his own our old debates about other statutes, unrelated to the one before us," she added. "What matters here is only that IEEPA’s delegation refutes the Executive’s assertion of authority to levy tariffs, without any help from the major-questions doctrine."

From Your Site Articles