Supreme Court Strikes Down Trump Tariffs

Summary

Advisory Opinions – "Supreme Court Strikes Down Trump Tariffs" (February 21, 2026)

Hosts: Sarah Isgur and David French
Podcast: Advisory Opinions (The Dispatch)
Episode Theme: The Supreme Court’s major decision invalidating the Trump administration’s use of presidential emergency powers to impose tariffs, its legal reasoning, the implications for executive power, and the future of the major questions doctrine.

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Main Theme & Purpose

This "emergency" episode unpacks a landmark U.S. Supreme Court decision that struck down the President’s authority to impose tariffs under the International Emergency Economic Powers Act (IEEPA), a central Trump-era policy. The hosts offer in-depth legal analysis, explore the tectonic implications for the balance of powers, the major questions doctrine, and highlight the dynamics and tensions among the Justices through their opinions and concurrences.

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Key Discussion Points & Insights

1. The Decision: Overview and Stakes

• Majority Structure: 6–3 ruling, with Chief Justice Roberts writing a concise 21-page majority; three dissents and several concurrences led to over 170 pages of opinions (00:30–01:48).
• Significance: The case is the most important decision on structural constitutional presidential power in decades—surpassing even recent “major questions” rulings under Biden (04:52–07:38).
• Why It Matters:
  • Monetary Stakes: Trump’s tariffs invoked up to $15 trillion in potential economic impact (02:46–04:52).
  • Political Relevance: Hits both Republican and Democratic executive overreach—affirming Court’s principle over party.

Notable Quote (Sarah Isgur, 01:22):
"Maybe it didn’t even need to be 21 pages. I mean, that’s it, right?"

2. Major Questions Doctrine (MQD): Continuity and Clarity

• Roberts’ Majority:
  • Framed under the major questions doctrine, linking it to prior “big” cases (02:46–04:52).
  • Emphasizes the need for clear congressional authorization for presidential power.
  • Shows institutional consistency—limiting the executive regardless of party.
• Broader Lesson: Questions overreaching executive power regardless of which party is in the White House.
• Teaching Moment (Sarah Isgur, 06:46):
  "It’s not that we don’t like President Biden’s policies. It’s that we don’t like a president, any president having that much power…"

3. Justice Gorsuch’s Concurrence: ‘Festivus’ & The Airing of Grievances

• Civic Education: Gorsuch delivers a passionate defense of why major legislative decisions must flow through Congress, not the executive.
• Memorable Moment (David French reading Gorsuch, 09:09):
  “Yes, legislating can be hard and take time. And yes, it can be tempting to bypass Congress… but the deliberative nature of the legislative process was the whole point of its design…”
• Tone: Gorsuch directly challenges his colleagues—liberals and conservatives—on their jurisprudential consistency, likened by hosts to a “Festivus” airing of grievances (12:01–13:54).
• Notable Quote (Sarah, 12:01):
  "He can’t take yes for an answer. And I have to say, reading this, I hope he felt confident that they were not going to change their votes on this case because it was harsh."

4. Dissecting Concurrences and Intra-Court Tensions

• Seven Different Opinions: The hosts detail the tangled web:
  • Kagan (for the liberals): No need for MQD; plain statutory reading suffices.
  • Barrett: MQD is "common sense statutory interpretation," nitpicked by Gorsuch.
  • Gorsuch: MQD is a substantive constitutional separation-of-powers canon.
• Faculty Dispute Analogy (17:00):
  "It’s like a faculty dispute where the intensity is inversely related to the size of the stakes."
• Host Perspective: These differences, though fiercely debated, rarely affect outcomes—yet are fun for legal nerds (18:59).

5. The Dissenters – Kavanaugh, Alito, Thomas

• Kavanaugh’s Main Dissent:
  • Sees no issue—Congress clearly gave the President the relevant power.
  • Argues that even under MQD, the delegation is sufficient and, in the context of foreign affairs, the President holds inherent power (31:10–31:59).
• Gorsuch’s Rebuttal: The hosts joke: (Sarah, 32:26) "Okay, I’ve got it. Bullshit, bullshit, bullshit, bullshit."
• Thomas’s Take:
  • Sweeping view that only rules depriving life, liberty, or property are non-delegable by Congress; Gorsuch and hosts sharply criticize this as atextual and unoriginalist (36:30–38:20).

6. Consequences and Remedies: Who Gets a Refund?

• Real-world Consequences:
  • Court’s ruling creates practical chaos over tariff refunds and ongoing lawsuits (39:30–41:34).
  • Consumers largely won’t see tariffs refunded, but businesses might.
  • Kavanaugh calls this “a mess”—but blame lies with the executive, not the Court (40:31).

7. Impact on the Major Questions Doctrine and the Separation of Powers

• Consensus:
  • The MQD is now embedded; all nine justices have signed on in some form across several cases (42:20–42:52).
• Jack Goldsmith Commentary:
  • MQD’s doctrinal basis “more confused than ever”; but its power undiminished—now a robust, bipartisan tool for checking executive overreach.
  • The “trade-off” between expanding executive administration and congressional delegation is now formalized (42:01–44:41).
• Roberts Court Project:
  • The Court asserts itself as principal-driven, not partisan.
  • This case, the hosts argue, is an even bigger structural decision than Dobbs (44:47).

8. Looking Forward

• Next Predictions:
  • Sarah Isgur—predicts a likely unanimous ruling against the President’s birthright citizenship order, based on these generalized limits on executive power (46:00–46:23).
  • David French—cautious, predicts 8–1 due to Thomas’s recent stances.

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Notable Quotes & Memorable Moments

| Timestamp | Quote | Speaker | |---|---|---| | 01:22 | "Maybe it didn’t even need to be 21 pages. I mean, that’s it, right?" | Sarah Isgur | | 09:09 | "[reading Gorsuch:] ‘Yes, legislating can be hard and take time… but the deliberative nature of the legislative process was the whole point of its design.’" | Gorsuch (read by David French) | | 12:01 | "He can’t take yes for an answer… it was harsh." | Sarah Isgur | | 17:00 | "It’s like a faculty dispute where the intensity is inversely related to the size of the stakes." | David French | | 32:26 | "Okay, I’ve got it. Bullshit, bullshit, bullshit, bullshit." | Sarah Isgur (summing up Gorsuch's critique of the dissent) | | 38:20 | "Surely, if there is one thing in the constellation of British powers that we did not want to import, it was the royal prerogative to issue taxes." | Sarah Isgur |

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Timestamps for Important Segments

• [00:30] – Emergency podcast intro; overview of opinions and the structure of the ruling
• [02:46] – Majority opinion highlights and linkage to prior MQD cases
• [06:46] – Broader implications for limiting executive power
• [09:03] – Gorsuch's civics lesson and “Festivus” concurring opinion
• [13:54] – The dueling concurrences: Gorsuch vs. Barrett, Kagan’s position
• [31:10] – Breakdown of Kavanaugh’s dissent
• [39:30] – Discussion of real-world impact and refund issues
• [42:20] – Synthesis of the MQD’s position in Supreme Court jurisprudence
• [44:47] – Structural implications: Court’s principled non-partisanship
• [46:00] – Looking forward: Implications for future cases (e.g., birthright citizenship)

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Tone and Language

• Erudite but playful: Hosts use analogies (“faculty dispute”, “Festivus”), inside jokes, and candid language (“bullshit, bullshit, bullshit, bullshit...”).
• Engaged and opinionated: They don’t avoid strong stances, but emphasize respect for honesty and consistency among Justices.
• Accessible yet expert: Carefully explain the nuances for listeners, especially with regard to complex legal doctrines.

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Conclusion

This episode provides an engaging, thorough, and incisive legal analysis of a watershed Supreme Court case, using the Court’s decision on Trump tariffs to illuminate the Court’s emerging doctrine on checking the executive, the growing significance of the major questions doctrine, and the internal debates within the Court. For listeners, the message is clear: the rules of constitutional structure still matter, and the Court is actively defending them—regardless of political flavor.

Transcript

[Sarah Isger]

So good, so good, so good.

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[David French]

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[Sarah Isger]

You ready? I was born ready. Welcome to Advisory Opinions emergency podcast on emergency tariffs. I'm Sarah Isger. That's David French. I don't need to tell you what we're talking about today. You already know.

[David French]

NBA trade deadline.

[Podcast Guest or Sponsor Voice]

What?

[David French]

I was kidding.

[Sarah Isger]

All right, David, let's start at the very beginning. This was a 6:3 decision with Justices Kavanaugh, Alito, and Thomas in dissent. Kavanaugh writes the principal dissent. Justice Thomas writes a separate dissent. We had 170 pages, though, of opinions here. The Chief justice wrote the majority, only 21 pages. Quite workmanlike, I would say. One of the shortest opinions I think we've seen in any major case from the Supreme Court.

[David French]

I was, as I was reading along and we got. It was starting to wind down. I was thinking, is this winding down on part, like, one of seven? No, it was winding down for the whole thing.

[Sarah Isger]

I was shocked when I got to the end. I was like, wait, what? We're done?

[David French]

Yeah.

[Sarah Isger]

But 170 pages, right? So you have the Chief Justice's opinion, you have the Gorsuch Festivus concurrence. We'll be spending a lot of time on that, as well as a concurrence from Barrett defending herself from the Festivus complaints, and a concurrence from Justices Kagan, Sotomayor, and Jackson. So all in all, just a gazillion opinions here in this case. But, David, let me start at the very top line here. From the Chief Justice's majority opinion striking down the President's authority to issue tariffs on. Under aipa, we claim no special competence in matters of economics or foreign affairs. We claim only, as we must, the limited role assigned to us by Article 3 of the Constitution. Fulfilling that role, we hold that IEIPA does not authorize the President to impose tariffs. Maybe it didn't even need to be 21 pages. I mean, that's it, right?

[David French]

Yeah. I mean, the thing about the Chief's opinion, it was just so darn straightforward, you know, And. And it was straightforward exactly on the lines that we've talked about. And I Actually appreciated the way he did it, because the way he did it was. He said, look, this is major questions doctrine, and this is completely consistent with three big cases from the Biden administration. The EPA case, Biden versus Nebraska, the. The student loan case, and then also, of course, husband of the PODS case, National Federation of Independent Businesses versus osha. The. The COVID vaccine mandate. The OSHA COVID vaccine mandate. And I thought that was very. Not just jurisprudentially appropriate to put them together, because they do go together. They are a match set, so to speak. I think it was also institutionally important because what the Chief is doing, he's saying, look, same rule, two different administrations. We have the Biden administration, he overreached. He tried to use sweeping, vague and ambiguous language to enact extraordinary powers. We struck that down. Here we have a Republican president. He uses extraordinary overreach. Far more extraordinary in raw terms, he was. One of the interesting parts of the opinion is Justice Roberts talks about that the total financial impact of Trump's tariffs could be up to $15 trillion, whereas the Biden student loan was a very considerable $430 billion case. This one is potentially trillions, although, of course, only hundreds of billions have been collected so far. Only. But I thought that was very smart. It absolutely put that straight in line with the other precedent. It made. It put it in terms that, you know, the smart average American, if they do choose to read a Supreme Court opinion, could understand. And I, I think it was, you know, I was. It was actually refreshing to read something a little bit shorter, especially when you combine that with the Gorsuch opinion, which, as far as I'm concerned, Sarah, like, we could spend all of our time on that because it's fascinating. On 19 different axes.

[Sarah Isger]

Yes. I'm trying to think if there's anything else important we need to get to before we get to Gorsuch, because as you say, when we talk about what this case is actually about, why it's an important case, it's important because of the amount of money at stake, because of the foreign policy implications, all of that. But really, at least on advisory opinions, this case is important because it's the most important case on structural, Constitution, presidential power in decades. And it is more important than the Biden analogs that the Chief mentions because of the makeup of the court. We needed to see them apply it to a president who had been elected as a Republican. And so now here we are, to quote a few more things on major questions, doctrine, which, as you say, is the basis for the chiefs decision here, although the three liberal justices do not join all of that portion of the opinion, he says, and if Congress were to relinquish that weapon, the power to tariff to another branch, a reasonable interpreter would expect it to do so. Clearly, the president asserts the extraordinary power to unilaterally impose tariffs of unlimited amount, duration and scope. In light of the breadth, history and constitutional context of that asserted authority, he must identify clear congressional authorization to exercise it. Major questions Doctrine has been defined different ways, criticized different ways. It didn't exist until Justice Kavanaugh mentioned it a few years ago. This is just a get out of text free card, as Justice Kagan called it one time. This feels a little like the federalism thing that we talked about with nationalizing elections. Like suddenly people realize why we might want to rein in presidential power. It's not that we don't like President Biden's policies. It's that we don't like a president, any president having that much power, because we don't know who the next president's going to be. And so here we are. And I do wonder if we're starting to teach that lesson. I don't know why it's suddenly occurring to people now. God knows we have flipped back and forth between parties in the presiden, and it has always seemed that the party in power, you've pointed this out. The party in power always thinks they're staying in power. The party out of power always thinks they're going to be out of power forever. Surely now states might have an important role to play in our constitutional system. Federalism might be a good thing. And not having presidents have this much power, maybe we're there now. Are we all seeing Kumbaya?

[David French]

We're not yet, but we might be on the way. And I would say that, you know, it's just a reality that in a big democracy like ours, there's a lag time between emerging crises, understanding of crisis, and resolution of crisis. Now, sometimes you have an emerging crisis, you have an understanding and you don't have you actually then just don't have a resolution. The crisis works its way through the system and damages it. However, it's going to damage it. But I think we're in that point where the emerge we've had the emerging crisis on a bipartisan basis. Presidents, there's been this every time Congress recedes, presidents push forward, which then causes Congress to receive more and presidents push more. And this has been happening and happening until we got to this tipping point with Trump where it's just all push, all receding. And we have, you know, really monumental presidential power grabs. But I. I think what's very important about this case is it's not just a decision. It's also a civics lesson. Sarah. And it's the civics lesson was delivered by Justice Gorsuch. And can I read part of this and. And just say, listeners, if I could inject this into your veins, I would do it. I would even allow for a vaccine mandate to do it.

[Sarah Isger]

All right, we're entering the Festivus portion of this podcast now.

[David French]

Well, well, let's. Let's not really the Festivus. This is the civic education and then Festivus.

[Sarah Isger]

It was all in the tone of Festivus, even the civ. Keeping this education. I know which part you're reading. Yes.

[David French]

So here it goes. This is Justice Gor Gorsuch. For those who think it important for the nation to impose more tariffs, I understand that today's decision will be disappointing. All I can offer them is that most major decisions affecting the rights and responsibilities of the American people, including the duty to pay taxes and tariffs, are funneled through the legislative process for a reason. Thank you, friend of the pod. Justice Gorsuch. Yes, legislating can be hard and take time. And yes, it can be tempting to bypass Congress when some pressing problem arises. But the deliberative nature of the legislative process was the whole point of its design. Through that process, the nation can tap the combined wisdom of the people's elected representatives, not just that of one faction or one man. Their deliberation tempers impulse and compromise, hammers disagreements into workable solutions. And because laws must earn such broad, broad support, survive the legislative process, they tend to endure, allowing ordinary people to plan their lives in ways that they cannot when the rules shift from day to day. In all, the legislative process helps ensure each of us has a stake in the laws that govern us and in the nation's future. Thank you.

[Sarah Isger]

Amen, brother.

[David French]

Thank you. That was so good.

[Sarah Isger]

Okay, so I got some text messages from friends. I want to read them to you about this decision. First one, Gorsuch, trying to alienate as many possible en route to advocating the perfectly correct position. So, yes, he is a libertarian.

[David French]

I loved that one that. If you weren't going to read it, I was going to read it. That was a good one.

[Sarah Isger]

Here's another one. He's going out of his way to get excluded from parties. I kind of like it. So we've been wondering why the tariff decision was taking so long, especially as these tariffs were being imposed in the meantime. And we had said that, you know, we were really expecting this decision in January. And every week that went by post January, it was a little bit better news for the Trump administration in terms of what they were potentially going to see. Well, now we know what was going on. There was a 21 page majority opinion. I bet that thing was done in two weeks or fewer. What happened here was that Justice Gorsuch wrote a concurrence calling out every one of his other colleagues except the chief. Yes by name, yes for everything that is annoying him about their jurisprudential lack of consistency and, or just disagreement with him. He can't take yes for an answer. And I have to say, reading this, I hope he felt confident that they were not going to change their votes on this case because it was harsh.

[David French]

It was really harsh. And I, as I was reading through it, I just had this vision from Seinfeld and George Costanza's dad introducing them to Festivus, you know, the, the Festivus aluminum pole, the feats of strength and especially the airing of the grievances. And it begins with him pointing his finger and yelling and that just memorable voice. I got a lot of problems with you people. And that's what Gorsuch is doing. And Sarah, it's, it's something, I mean, so basically it begins by saying whatever else might be said about Congress's work in ipa, it did not clearly surrender to the President the sweeping tariff power he seeks to wield. He could have stopped right there. But he says not everyone sees it this way. Past critics of the Major Questions doctrine did not object to its application in this case, and they even joined much of today's principal opinion. But they insist they can reach the same result by employing only routines, tools of statutory interpretation. And in case we don't know who he's talking about, post it. 1. Kagan, J. Joined by Sotomayor and Jackson. Okay. Leaving no ambiguity. Meanwhile, one colleague who joins the principal opinion in full suggests the Major Questions doctrine is nothing more than routine statutory interpretation. Who might that be? Barrett, J. Concurring. Still others who have joined Major Questions decisions of the past dissent from today's application. The doctrine. Who's that? Kavanaugh, J. Joined by Thomas and Alito. Finally seeking to sidestep the Major Questions doctrine altogether, one colleague submits a Congress may hand over to the President most of its powers, including tariff power without limit. Thomas, J. And then he proceeds.

[Sarah Isger]

Oh, wait, you didn't finish it. The paragraph ends with it is an interesting Turn of events. Each camp warrants a visit.

[David French]

Wow.

[Sarah Isger]

Okay, so there were seven opinions in this case, over 170 pages. Almost all of them are in response to Justice Gorsuch's concurrence. You have the concurrence from Justice's Kagan, joined by Sotomayor and Jackson basically discussing that you don't need the Major Questions doctrine for this case. This is just statutory interpretation. So, you know, all those times we've been hating on Major Questions doctrine is not at all a lack of consistency. You do have a separate Jackson concurrence, by the way, which I forgot to mention earlier. You have Justice Barrett, who basically is just defending herself against kind of this somewhat left field, unnecessary disagreement over the, you know, people's Judean front versus the Judean people's front on exactly what Major Questions doctrine is. But, you know, she was trying to distinguish between her version and Justice Gorsuch's version in that student loan debt forgiveness case. We covered it at length, and I just thought it was a very interesting distinction. And we've talked about how rare it might be for that distinction to matter. We even walked through why it could potentially matter in this Tariffs case. But that, for the most part, the Venn diagram is nearly two circles on top of each other. And here they're both in the majority, both signing on to the full 21 pages of the Chief's opinion, and yet we're going to have dueling concurrences where they fight with each other. Gorsuch basically calling her an idiot and her responding that you're calling a straw man an idiot. You're the idiot.

[David French]

Can I read footnote one of Justice Gorsuch today? Justice Barrett protests that the foregoing discussion takes down a straw man. But it was Justice Barrett who previously wrote that the Major Questions doctrine grows out of common sense principles of communication. And it was Justice Barrett who used the various illustrations recounted above to suggest that our Major Questions decisions can 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.

[Sarah Isger]

Just to be clear, they have never been on opposite sides of a case that is using Major Questions doctrine.

[David French]

Yes.

[Sarah Isger]

So so far, their fight has been irrelevant.

[David French]

It's all about the language you're using to describe the Major Questions doctrine, which they both believe exists and applies to

[Sarah Isger]

this case and all the other cases

[David French]

where they've been all the other cases.

[Sarah Isger]

Okay, so let's try. There's gonna be a Lot of nitpicking, because, again, these differences are getting pretty small. But I want to give the big picture distinction between their two versions.

[David French]

Yes. And then we also need to chat about the Kagan.

[Podcast Guest or Sponsor Voice]

Absolutely.

[Sarah Isger]

But this fight is too small not to be the most fun.

[David French]

That's true. It's like a. You know what it's like? It's like a faculty dispute where the intensity is inversely related to the size of the stakes. Yeah.

[Podcast Guest or Sponsor Voice]

So true. Okay.

[Sarah Isger]

So, roughly speaking, just a. Barrett had previously made the point that Major Questions doctrine is really just a. A way to read the text, a way to think about the text. It's providing context to the text. She gave the example of the babysitter, and the parents give her, you know, an extra hundred dollars or whatever and say, make sure the kids have fun this weekend. The babysitter is clearly not allowed to take them to the amusement park, overnight stay in hotel rooms, et cetera, but, you know, she is allowed to take them to the movie theater. They. That's the work. Major Questions doctrine is doing that if the parents thought the babysitter could take them to an amusement park, they wouldn't have just said, have fun, they would have said, have fun. Get out of town if you want. And so by not having the get out of town if you want, clearly the context is movie theater, not amusement park. And her description, again, back in that student loan concurrence of Justice Gorsuch's version was that it was a thumb on the scale, that, in fact, all things being equal in the text, Justice Gorsuch would say, nevertheless, Major questions doctrine says we want a clear statement from Congress because of separation of powers, etc. Now, again, if you're like, those sound like the same thing to me, then you're going to love how we're going to spend hundreds of pages still going through this. So here's Justice Gorsuch now taking on the babysitter example. If one parent leaves the child with the other parent, the trip to the amusement park might well be fine. No other contextual clues are needed. So if the answer to the babysitter hypothetical seems a matter of common sense to many Americans, that is only because the substantive norms associated with parental delegations to babysitter agents are so deeply rooted in society. At which point I was kind of like, yeah, but I'm not sure I know what we're arguing over anymore.

[David French]

Yeah, yeah, okay.

[Sarah Isger]

But in short, Justice Gorsuch thinks that there are big differences between Justice Barrett's Major Questions doctrine simply provides context for the text versus his version, which is a substantive canon of constitutional separation of power, structural constitutional interpretation, and they're real mad about it. And the end, if I'm Justice Barrett,

[David French]

I'm so deeply confused. You're thinking, I've been agreeing with you, my friend, and we use different language to describe the same phenomenon. That's the way I've always thought of Justice Barrett's approach to it. She's sort of saying, okay, yeah, there is the clear statement, you know, the sort of clear statement principle that Gorsuch talks about. And also this is common sense. And also there's an ordinary common sense way of understanding this. And I'm going to explain the ordinary common sense way. And just as Gorsuch seems to be saying, no, no, do not use ordinary common sense language, let's stick with this particular formulation is the way I'm interpreting it. Because I gotta admit, Sarah, I'm a little stumped, a little stumped at the distinction.

[Sarah Isger]

I very much understand the distinction philosophically, theoretically. I guess I'm just waiting for the case where the distinction matters.

[David French]

Yeah.

[Sarah Isger]

And until then, I'm not quite sure why we're spending so much time outlining that distinction. Because in the case where it does matter, it's going to become much more clear, I think. So I'm willing to wait. And we'll move to bucket two. Gorsuch's second bucket is for those who are newly discovered fans of Major questions doctrine, but won't actually use it. The name say my name, Major questions doctrine. Okay. So in this case, he writes, what the concurrence. Referring here to Kagan's concurrence, joined by Sotomayor and Jackson calls context looks remarkably like the major question doctrines rule that when executive branch officials claim Congress has granted them an extraordinary power, they must identify clear statutory authority for it. So Kagan, Jackson, and Sotomayor are basically saying, you don't need a doctrine here. You just read the statute. It doesn't authorize tariffs. We're kind of done with this. And Gorsuch is like, yeah, but why didn't that same theory apply in the Biden cases, student loan, debt forgiveness, OSHA vaccine mandate, and EPA v. West Virginia? In all three of those cases, these three Justices thought the statute wasn't so clear and thought that in emergency situations like Covid, like climate change, that presidents needed broad, expansive authority, sometimes vague, coming from Congress. So what's the difference here? And I will say I understand the frustration that when conservatives look inconsistent, it feels like they get called out more than when the liberals look inconsistent. And so he's trying to highlight the fact that while they are on the team today, he doesn't really think they mean it. Yes, he thinks they're on the team for a different reason. And he mentions, I mean, we go pretty far afield here in some ways in terms of his grievances against the three. And we head over to Chevron doctrine and it's like, look, you guys were all about administrative agencies and experts. And you know, Chevron, that case established a presumption that was nearly the opposite of the major questions doctrine. When Congress failed to speak clearly, courts put a thumb on the scale in favor of delegated power. This court's application of the major questions doctrine is not invention so much as return to form. The point being, you guys were so mad when we overturned Chevron and Loper Bright, but that was all about more delegation to the President and so were your three decisions in those Biden cases. So how dare you agree with me now?

[David French]

I think that's a very fair assessment. And let me just read from assessment of Gorsuch's concurrence. It's absolutely fair assessment of Gorsuch's critique. Now let me read the key two sentences or through two sentences in Justice Kagan's concurrence. She says, well, I'll read the paragraph. The court holds today that the International Emergency Economics Powers Act, IEPA does not authorize the President to impose tariffs. I agree with that conclusion, as I do with the bulk of the principal opinions reasoning. But because I think ordinary tools of statutory interpretation amply support today's result, I do not join the part of that opinion invoking the so called major questions doctrine, which I don't know that she's wanting to acknowledge its existence. Right. And her point is essentially, look, you just read the statute. The statute does not by its express terms provide a delegation of tariffing power. Boom, done. Why are we talking about this for so long? And you know, in interesting ways, I feel like they're amplifying disagreements that are actually that, as you said, if I can understand in principle, but if you're boiling it down to it, isn't it kind of all statutory construction and that, you know what Gorsuch is saying, there's a sort of a principle of statutory construction that is you cannot create extraordinary powers without extraordinary delegations of power, which is a, which is a canon, you know, sort of a canon of construction. And Justice Kagan is just sort of saying, well, I'm going to read each statute and the grant of power I'm going to, you know, I'm going to endorse is just going to depend on the specific language of each statute. And Barrett is sort of saying, I agree with that statement of principle that that Gorsuch, that Justice Gorsuch shared. However, let me just explain it further, that in reality, in brass tacks, this is just a common sense statutory construction element. And so they're kind of all on the same spectrum, but at different points on it. And it feels as if the amplification of the disagreement was disproportionate to the extent of the disagreement from Justice Gorsuch.

[Sarah Isger]

The Major Questions doctrine is not anti administrative state. It is Pro Congress. Article 1 vests all federal legislative power in Congress. But like any written instrument, federal legislation cannot anticipate every eventuality. A point my concurring colleagues have observed in the past. And highly resourceful members of the executive branch have strong incentives to exploit any doubt in Congress's past work to assume new power for themselves. The Major questions doctrine helps prevent that kind of exploitation. Our founders understood that men are not angels, and we disregard that insight at our peril when we allow the few or the one to aggrandize their power based on loose or uncertain authority. We delude ourselves too if we think that power will accumulate self safely and only in the hands of dispassionate quote people found in agencies, end quote quoting them. Even if unelected agency officials were uniquely immune to the desire for more power, an unserious assumption, they report to elected presidents who can claim no such modesty. I think that's the best response to the anti Major Questions doctrine people in a nutshell. And while it is too long for a tattoo, I plan to email it to everyone who criticizes future Major Questions doctrine decisions.

[David French]

No, no, no, it's not too long. You just turn it into an acronym. So I just watched the movie the rip on Netflix.

[Sarah Isger]

Oh yeah, I liked it.

[David French]

Oh yeah, I've seen it twice now.

[Sarah Isger]

Okay, that's too much.

[David French]

No, it's exactly right. And so he has two tattoos. AWTTG on one side and waa WB on the other one, which means are we the good guys? And we are and always will be. Which is key to the story. And it's by the way, like, just watch it. It's very touching how all that played out. Like it brought a tear to my eye. But anyway, twice. Twice it did. But yeah, I. I'm with you. Like tattoo that. Absolutely.

[Sarah Isger]

Because this is the point, right? You don't know who the next president will be. Do not be so giddy in the use of executive power today, even if you like the results. And I guess, David, I want to pause here for a second and ask, do you think, because I'm going to ask this again about Kavanaugh, Thomas, and Alito, so I'm going to pause and ask it here. Do you think Kagan, Sotomayor and Jackson are being consistent?

[David French]

That is a very good question. I'm going to say let's stipulate if

[Sarah Isger]

you put them in a polygraph with True Serum and all that they would absolutely believe that they're being consistent.

[David French]

Yeah. Yeah. You know, are they consistent? Is a very different question from Are they operating in bad faith? Two those are two different I and I do not believe I've said this a million times. I'm keep saying this. I think all nine justices are people of integrity. So full stop, I do not believe they are being consistent. And I do not believe that the dissenting three are being consistent either. I don't think that Kavanaugh, Thomas, and Alito are being quite consistent. And so again, that is not the same thing as saying bad faith. But I do not believe that a majority of the court here was precisely consistent.

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[David French]

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[Sarah Isger]

Okay, well let's move on to the principal dissent written by Justice Kavanaugh joined by Thomas in Alito. Coming out of oral argument, this is what gave us the, the heebie jeebies. We were like whoa, whoa, Kavanaugh is the justice who is most likely to be in the majority. And yet he seemed like not a close call on this case. And so how do you get to five? And we were like, well Gorsuch seemed the other way and like Baron, the chief seemed like pretty against it, but it was a little harder to say for them. But having Kavanaugh so out in front made us nervous and as it turns out, rightly so. He's in dissent now. He has sort of two main arguments here. The first one is that this does invoke the major questions doctrine. It just meets the standard for it. The text is clear.

[David French]

Regulate importation.

[Sarah Isger]

Congress gave this power to the President. You may not like it. It may have been too broad a power. It may have been unwise for Congress to do so. But nevertheless, as we through how one applies major questions doctrine and as we did in the student loan debt forgiveness case, this meets all of those requirements. And second, even if it doesn't meet all the requirements of major questions doctrine, Major questions doctrine doesn't apply in the context of foreign affairs. And this is the President operating not in a domestic sphere. Therefore he has Some inherent Article 2 powers that are concurrent with Congress's powers. And so if we're doing some Youngstown, and by the way, Justice Kavanaugh cites a lot of Youngstowns town in this dissent. You know, he's, he's not maybe at the zenith of his power, but he has some power here. Neither is he at the nadir of his power. So let's though skip right to Justice Gorsuch's take when we move on to bucket three. And remember there's four buckets because Justice Thomas gets his own. Justice Thomas gets his own bucket, his own bucket, basically. If I were to summarize the Justice Gorsuch take. Okay, I've got it. Bullshit, bullshit, bullshit, bullshit.

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[David French]

I Mean, I think you made his argument more civil than it actually was. No, I'm kidding. I'm teasing.

[Sarah Isger]

Yeah. So Justice Gorsuch basically just goes line by line and takes apart whether those justices are being consistent in the same way that he took apart the three liberals with those previous applications of major questions doctrine in the Biden cases. I. I will admit, first of all, I thought his tone, Justice Gorsuch's tone acted like it was a closer call for these Justices for their reasoning than I think he did with the three liberals.

[David French]

Right.

[Sarah Isger]

It was a little bit, you know, more solicitous. More solicitous, yeah. I wonder whether you were persuaded by that tone shift, because I have to admit, I was a little bit. As In, I agree 100% with Justice Gorsuch. Again, I would not have written this concurrence, but in my heart, I did. In my heart, I agree with every single bit of the whole Justice Gorsuch festivus, but with this part in particular, you know, there is language here, but there was language in student loan debt forgiveness as well. It is foreign policy, but it's not actually foreign policy. It's tariffs, which taxes, which is what we were doing at the Founding. That's all the taxes we had at the Founding. And so I found Justice Gorsuch persuasive, but I also found his tone. I found the arguments of the dissent more consistent than I found the arguments of the concurrence that they were being consistent, even though I don't think either was being consistent. Does that make sense?

[David French]

Yeah, I found them equally inconsistent in the following.

[Sarah Isger]

Fair. Totally fair.

[David French]

So I think each of them had a hook to hang their inconsistency on. So the hook that Justice Kagan and the more liberal, two other more liberal justices had is that what you're dealing with here is a explicit grant of constitutional authority over taxation to Congress. And so if you have an explicit grant of this particular authority to Congress and not to the President, they're consistent in saying there can be a delegation. That's the consistent thing. But the language here doesn't actually touch the actual delegation that the Trump administration is claiming. It doesn't actually say tariffs. It doesn't say it. So this is different. Whereas with student loans, with epa, you're not actually talking about something along the lines of messing with Congress's a exclusive grant of authority to Congress. What you're messing with is an unquestioned responsibility of Congress that, you know that there's no, there's no taking anything away from Congress, what they're saying is that Congress said in these catch all provisions that you can also do these other things that's a little bit different than here. And similarly, you would say if you're going to be defending the consistency of Alito, Thomas and Kavanaugh, you would say, well, no, they're in agreement. There's nothing inconsistent here because there's the new twist of this involves foreign relations. So you have the new twist for Kagan, Sotomore, Sotomayor and Jackson about this is intruding on an explicit grant. And then you have the twist in Thomas, Alito and Kavanaugh, which is. But this also touches on foreign affairs.

[Sarah Isger]

I think part of my, part of what I'm feeling, I will acknowledge comes from the Jack Goldsmith defense that he was making about if this case were to come out differently or if the dissenters argued this is what it will look like. And I was persuaded that it did make the case a little bit different and, and that there were real serious people arguments that were not. Just look at this text. Isn't it neat? Now I believe my tariff collection is complete.

[David French]

Well, that's off the top of your head. That's fantastic. But I would also say that Jack Goldsmith speaks fluent ao like he's.

[Sarah Isger]

Oh yeah, so much so, David, that in fact. Well, we'll get to Jack Goldsmith's take here in a little bit. Let's go to that Thomas Bucket. I'm just going to read Justice Gorsuch's summary of Justice Thomas's dissent. So on his view, meaning Justice Thomas's view, the only powers Congress may not delegate are those that involve rules setting the conditions for deprivations of life, liberty or property. From this rule, it follows that Congress may give all of its tariff powers to the President because importing is a matter of privilege. And as a result, this case does not implicate any separation of powers concerns at all. Suppose for argument's sake that Congress can delegate its tariff powers to the President as completely as Justice Thomas suggests. Even then, the question remains whether Congress has given the President the tariff authority he claims in this case or whether the President is seeking to exploit questionable statutory language to aggrandize his own power. That to me was a kill shot for Justice Thomas's dissent. I also thought that the idea that Congress can delegate anything but deprivations of life, liberty or property was so atextual and ate original that I was like, what happened to text, history and tradition? Yeah, my dude.

[David French]

Well, and one thing that was the least convincing element of his opinion was how he talked about tariff authority was a core royal prerogative.

[Sarah Isger]

Like, you know, this is like my real pet peeve on originalism.

[Podcast Guest or Sponsor Voice]

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[Sarah Isger]

Which things did we fight a revolution to not import from King George? And which things were we like? Yeah, actually, that was working just fine. Surely, if there is one thing in the constellation of British powers that we did not want to import, it was the royal prerogative to issue taxes.

[David French]

I mean, what are we doing here? Yeah, which is why, you know, I saw a lot of this stuff from sort of more trumpy conservatives online saying, well, I see that Alito and Thomas are in dissent, and that's all I need to know. And part of me was like, please, you know, please stop doing that. But the other part is, well, you know, if. If Thomas is going to say this, then maybe Thomas's jurisprudence and thinking might be shifting a little bit because this, as you said, Sarah, was really hard to square with originalism. Very hard for me to square with originalism.

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[Sarah Isger]

Okay, now we've gone through the opinion. Let's do a little bit of big picture consequence analysis. One, the word refund does not appear until you get to Kavanaugh's principle of dissent. Nowhere in the majority or the concurrences happening to mention it. Kavanaugh noting that the consequences of the majority's opinion will be, quote, a mess. Yeah, I don't think that's wrong. In part because not only will there be a gazillion lawsuits that have to be individually filed to get these refunds, but of course we, the consumers aren't getting refunds and we had many of these costs passed on to us. So, yeah, very happy with today's decision. Don't want to change any of it. Am I annoyed that I paid two extra months of tariffs on a bunch of stuff? I'm not happy about it. And the refund process will now just be remanded to lower courts to work out. I do think Justice Kavanaugh is right that it will be a mess. But you know, guys, I thought we weren't doing consequences, right?

[David French]

And the actual blame for the mess rests with the person who passed the unconstitutional policy, not the Supreme Court for adjudicating that the unconstitutional thing is unconstitutional. And, and, you know, we've talked about the remedies problem before and wondered if that might actually have some bearing on the ultimate outcome. It's very clear it did not. It did not have any bearing. And, yeah, it's going to be a mess as this gets punted. And it may very well end up that you don't have any refunds at all, because, as you were saying, it's a. What about the refunds? Does this mean that, like, if Amazon gets a refund, you know, just, just for the sake of argument for paying $800 million in tariffs, but then it passed on $650 million of that to us. We don't have a mechanism for that. It's possible the court just may say it's too difficult to sort out court, lower courts, you know, we're not ordering a refund. We're just blocking further collection. That's possible, but it's not a. The messiness of resolving the unconstitutional policy is not a reason for maintaining an unconstitutional policy.

[Sarah Isger]

Well, I told you we were going to check in with Jack Goldsmith here, who is published over at Executive Functions. He says the doctrinal underpinnings and scope of the Major Questions Doctrine in one sense emerged from this decision more confused than ever. Three conservative justices who have been drawn to the doctrine, Gorsuch, Barrett, and Kavanaugh, had sharp disagreements about how it should operate here. The deeper one gets into the weeds of the doctrine, the harder it gets to apply. But need one get into those weeds?

[David French]

Yeah.

[Sarah Isger]

The Chief justice, who has never concerned himself with a theoretical or academic account of the doctrine, had no trouble applying it in a way to gather the support of Barrett and Gorsuch, even though they disagreed among themselves about the nature of the doctrine. So, big picture, David, where does this leave Major Questions Doctrine? I have to say, stronger than ever.

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[David French]

Absolutely. Because it's stronger than ever. Because we now have all nine justices having signed on to one or more opinions. That is. Yes, it's all nine. And now there are, are. There are. There are four big cases. West Virginia versus epa, Biden versus Nebraska, Independent Federation of Businesses versus osha, and now our friendly tariff case as well. And so you've got all nine on some version. And I'm going to say that's going to make it really hard for future presidents.

[Sarah Isger]

Okay, next up from Professor Goldsmith. Feels like you're here, Professor. We, we miss you a Very significant aspect of the Chief Justice's Major Questions doctrine analysis is that three conservative Justices embraced it to rule against President Trump's signature policy. It is hugely important complement to the Court's emerging broad view of the unitary executive. Put another way, it is a vindication of Sarah Isger. He doesn't say my student, and I'm a little hurt he isn't claiming me as his own. I feel like he should if he really cared about me, you know. Put another way, it is a vindication of Sarah Isger's view that the trade off on the Court for enhancing vertical unitary presidential control is for the Court to rein in Congress's bad habit of delegating vast and vague powers to the Executive branch, including through Major Questions doctrine. It also puts in a better light the Court's interim orders to date in Trump 2.0, a large number of which due to application strategy of the Solicitor General, involve issues of vertical control. The tariff opinion gives the lie to the notion that the Court is in the bag for the President and also makes its approach to issues of presidential power in Trump 2.0 both clearer and more nuanced. So, David, I feel like we can definitively say, I mean, I wrote that piece in the New York Times about how unitary executive and major questions doctrine needed to work together to you know, make basically, you know, get these two branches on their own side of the boxing ring. And here we are like, I think this is it now. And I think you have to see the two doctrines working together. And I think the tariffs, this is what makes in part the tariff decision the most important presidential power decision of the last several decades. Because it is now clear, regardless of what party you're in, regardless of the policies of that party, we are reigning in presidential power. Congress is going to have to do its job one way or the other if Presidents want to do anything fun.

[David French]

Yep.

[Sarah Isger]

And yay. This is the project of the Roberts Court. And they are not done. They are just getting started.

[David French]

It's so important. It's so important. You know, I've just as a preview of what an argument I'm going to be making writing about this. I think this is the most important Supreme Court case this century of not in a century, but this century. There's a difference. And I think it's more important than Dobbs ultimately, because this is really core structural stuff. This is sort of the core of the structure of the republic. But it's also that point that Jack just made about at a moment. And this is a point that I made at the, at the National Constitution center that we're event that we're at right now together that Americans are. We could be easily forgiven for believing that there are no more principles in politics yet it's all just will to power. And nobody's for free speech except their own. Nobody's for limited government except when the other side is in power. Nobody's for less deficits except when the other side is in power. I mean, we could do this all freaking day, but here you actually have a major institution of the federal government, one of the three branches of government, saying same rules apply to both sides and that there are still actual principles. And I think that really matters.

[Sarah Isger]

Okay, David. And now looking forward, my take on the tariffs decision is that I'm now willing to predict a unanimous vote on the birthright citizenship case to strike down the president's executive order on birthright citizenship.

[David French]

I'm going 8. The Thomas dissent was pretty jolting in some ways.

[Sarah Isger]

Yeah, fair enough. Well, let's leave it there. By the way, thank you to the National Constitution center for, for hosting us this weekend and as it turns out, hosting a podcast. Yes, they didn't know they were doing that, but. But they are. So thanks to them. And David, this was a fun emergency pod.

[David French]

Yes, it was. So glad we were in the same place when this came down.

[Sarah Isger]

So, yes, more to come later on advisory opinions. Sam.