Betty Boop or Shakespeare

Welcome to divide an argument, an unscheduled, unpredictable Supreme Court by caste.

I'm well-dowed and I'm Dan Appes. So, will this is, you know, what passes on our show for an emergency episode? I don't think we do true emergency episodes because we're not ever trying to be super super timely, but we did get the tariff's decision, learning resources versus Trump, and we are recording same day, and hopefully we'll have this episode to you fairly promptly. Does it feel like an emergency to you? Well, I guess that's probably the question of the case, right? I guess. Okay, so we'll get to that.

All 170 pages of the opinion, which we've both read to the extent possible in the brief hours

between its release and this recording session. Before that, something may be a little bit less

consequential, which is the amendments to the court's rules. Not the most exciting thing, but, you know, for those who practice in Supreme Court litigation, kind of interesting. So, two things.

“One, the court has changed the rules in ways that I think are designed to make it easier for the”

court to catch refusal issues. Yes. So, in petitions, the parties now have to list the stock ticker symbols for any parties to the proceeding. And that rule is going to extend to briefs in opposition. Interestingly, in the past, if you did not want to file a brief in opposition, you could just do nothing, and then it would just be treated as if you had waived your right to file a brief in opposition, and the court would consider the petition on its own. Now, if it's a

non-governmental corporation that is the respondent in a case, they can't do that anymore. They have to either file a brief or file a little statement waving and that statement waving would have to include the stock ticker symbols. Right. This is great. I mean, this is, I think several of the circuits already use and have for a long time. You know, various automated ways to try to catch

“recusals rather than, I think the court's prior technology of hoping that there clerks and other”

clerks, you know, successfully flagged every subsidiary of a recreoration that might duplicate the justices. And then you get these cases where the justices didn't recuse in the consideration of a sort of petition that obviously didn't even make it to this cost list. So it's sort of done to care about it, but since it's the rule, it looks bad if they don't get it right. So this is great.

I mean, I wouldn't go so first to say it's great because I think it's dumb that this is needed.

Well, right. I think the justices could solve this problem on their end by divesting themselves of stocks that create recusal issues. And I just don't see any reason for them not to do that. That as I understand it, there's statutory authority that lets the justices do that and avoid realization of capital gains taxes. So, you know, yeah, people should just own index funds anyway. So I mean, it's just, you know, I think I tell this at this

you before off the air, but one of the few Supreme Court ethics reform statutes I would support

“is a statute just saying by Operation of Law, when you become a justice, you have to sell”

all of you and your family, have to all sell all individually on stocks and reinvest the President's index funds. I would be open to making it retroactive. So saying something like no person shall be eligible to the Supreme Court if in the past 10 years they've owned a stock because really pushing on an individual stocks that there's more lawyers. And so we could just make all smart and vicious lawyers. That seems to be excessive. It's just good incentives. It would be good for the world.

I mean, look, if some, you know, really savvy, you know, future justice, you know, wants to build a portfolio, you know, I'm okay with that. They just can't do it once they're in the court. I mean, this has been a big problem for just the Salito. You know, he, I think via his wife, has all these conflicts from, you know, various stocks. And I just seems to me that if you're going to be on the court, it's your, it's your job to be eligible to hear all the cases the court may hear.

Yeah, you heard the rumors that on the DC circuit, some judges intentionally buy stock in like an

just a pocket fault. That's that's extremely disturbing if Drew tricks me as like deeply unethical. There you go. Ethics are formed. We can agree on. Okay. And the other thing is this is deeper in the weeds, probably only of interest to those of you who, like us occasionally, file briefs or help people file briefs, which is used to be the case that, so the court created an electronic filing system, you know, in the last few years. But formally,

a document was not filed for purposes of, you know, actual filing until the paper copy was received. And so you would still have to, you know, do this process of uploading the PDF, but the actual thing that counted as filing was the delivery of the 40, you know, printed and bound little booklets of a petition, at least if it's a paid petition. And so now the thing that counts as filing

“is the actual upload. And this is the way it works. And I think all other federal courts in the”

country. And so then the filing party can make sure as long as they get the paper copies in within a couple of days. Yeah. Then it's fine. Yeah. And this is, I mean, this is a, I think a non-trivial change and that, as you know, if I'm going to do this, if you, there are great companies you can work with who print and file these briefs, but the, but the Supreme Court's kind of printing standards

are relatively boutique. Like the booklets have a weird size. They're basically special that you

need to go to one of those sort of set of specials to do this. And they usually want your draft by like, kind of in that morning or something with a limited ability to check for typos and stuff after that. So you, this really gives you a whole business day, a whole extra business day to write and file your brief. Yeah. Because I guess the brief could be filed electronically late at night midnight. And the next morning, the printers get to work on it. Yeah. Um, now of course, there's no

reason that, you know, there's no reason we can't all just start everything 12 or 12 or 24 hours earlier, knowing what the dealings work. But it sometimes happens that you're down to the wire. And now the wire is moved. Yeah. I'm, I'm generally opposed to late night filings. I just, you know, think professional should be able to get it done earlier in the day. But I suppose this will, this will bail a few people out. Look, Irina, you can still file it earlier if you want. Yeah,

“yeah, still. But, you know, you know, maybe they should set, I mean, I think it would be,”

there's no reason the deadline has to be midnight, right? That's true. And there's some, there's the thing, the third circuit for long amount of 5pm deadline. I think there's some requests for that to move it, or maybe they had a midnight deadline as much for the move to 5pm. It is awkward because the 5pm East Coast deadline isn't like 2pm if you're finally from California, which I know you could do, but it's sort of a, you know, sort of awkward. Yeah, just, it's like,

one of those things where you're setting paper deadlines for your students, you know that some of them will go right up to the deadline. And so like if you said it at 7 a.m. some of them might stay up on night. And so maybe that's kind of kind of, so you shouldn't do that. Yeah, but I think I haven't had a little bit more paternalistic towards my students than the Supreme Court needs to be to, remember since the Supreme Court bar. I don't think it's really paternalistic to just say,

“let's be nice to people. Well, another nice one. I think it's saying, we don't try, we worry”

you're going to do something with this freedom that is not good for you, so we're going to instead take away your freedom. But don't, haven't you, you know, in our side conversation,

you took the decision that everybody always files like at the deadline. That's just the way it works

in law. Yes, but you told me I was wrong because you were actually more responsible. So I don't think I would always go to go to midnight. Well, I guess I don't do think there is this, this is just going to end up a bit. There's, of course, this plurality problem. So, you know, my experience in practice was that sometimes you the lawyer were ready to file something a day earlier, but then the client or some of their stakeholder wanted to look at something again and like they

had changes. And if you could say, sorry to late, we've got to get it in. I feel like I'll get fine. Yeah. But if it was not too late, you know, definitely it's too much for stuff. Yeah. So these, the deadlines do operate to resolve conflicts between multiple stakeholders on a brief in a way that nothing else can. That's true. I mean, certainly it's true that like in my

time in practice, I never saw a brief file like a day early, as always like on the day that it was

too. Yeah. One interesting thing about both these changes, by the way, that they're small, is that they're both, you know, sort of common sense things that bring the Supreme Court a little bit more into what Justice Kennedy would call the cyborage. You know, only a couple of decades

one thing that has come up occasionally over the years is the practice of ghost writing briefs

in opposition. Yeah. Right. Which is, you know, we've talked about that. Yeah. You know, where the party, you know, trying to pose, assert, maybe there's multiple law firms working on it. There's the kind of local council, you know, not famous lawyer. And then there's behind the scenes. There's the super famous Supreme Court practitioner. And, you know, the incentive is to not put the name of the fancy Supreme Court practitioner on the brief in opposition because then you're

“like signaling that fancy Supreme Court practitioner thinks this is like an important case where”

they have his attention. Yeah. Or is client thinks that's worth, yeah. I mean, I mean, you know,

maybe not client if it's a pro bono case or something. But then that does create a problem,

right, which is that it means that there's no opportunity for the court to check for conflicts in terms of counsel, right? Uh, that's true. Although this must come up, I mean, it's must come up all the time. If you already had lawyers who have an entered an appearance just in regular court. You know, I guess, I mean, I'm talking about my out of my ear here. I guess the idea is we just don't care that much. If the judge doesn't know that this person's involved,

then there is no appearance. There's no potential bias. I know appearance a bias because the judge doesn't know. Yeah, although that lawyer might suddenly make appearance later in the case, like,

you know, at the merits stage or something. I wish point their case looks like that. Yeah.

Yeah. Maybe there's just aren't that many situations like that. I mean, they just assist

“children. I think just don't file positions. Right. And probably don't suit. We can solve”

that many additions. You know, although you can imagine, I mean, sometimes the, yeah, it's an interesting point. I mean, I think this must come up in federal court all the time because there are people who, you know, our under investigation and consult various lawyers and then somebody might enter an appearance. But you might have your, your big gun, wait, you know, you know, this, I didn't know you're actually ready to go to trial. And so you had your trial boutique. Yeah, unattainer or whatever. But yeah,

that's interesting. Okay. That's our only, it's our only non-tariff news. I think so. Yeah. And in the really, I feel like it's, it's been kind of a slow stretch. Well, they weren't, they weren't sitting. We had to, we had to dig into the argument recaps and previews to sustain the show. But they've got more opinion days next week. Yeah. And there's been very few kind of, you know, shadow, docket, interim docket. Yeah. Type things. Yeah. But today, Dan, today is liberation day.

Are we liberated from tariffs? It's liberation day, liberation day. Right. It was like Trump or Labor day of liberation day. And we've been, I see, living out of this ruin as, these ruin as consequences for 10 months. And now we are, we're liberated from liberation day, we're liberated. I feel free. Okay. Yeah. The only other thing I was going to say was I had a post on our blog and also on the interim docket blog, sort of asking, you know. So a lot of people say,

some people say, you know, the Supreme Court is in the tank for Trump, because they will for him on the interim docket all the time. Other people say, actually, they're not. It's just because the SG's office is being really selective, but which case is to take. Okay. And then I said, okay, well, the latter thing is true, then why is the SG's office doing that? Why is solicitor general John Sauer doing that? He presumably could take more cases, you know, would potentially

reduces win rate, but also might, you know, end up saving a few more decisions, bad decisions below. I didn't really come to a conclusion on that question, but, you know, I do think maybe there's sort of a complex intra administration politics going on, maybe it's, you know, it's easier

“to look good to Trump if you can just point to a strong win record. Yeah. Yeah. I think there is”

something that I mean, I do think there is this complicated dynamic, maybe this is more solidified news to be about sort of to what extent Trump wanted to go the, you know, the inside group and the versus the outside group or the law root versus the who cares with the law root. And if you are on the on the law team, then showing the president of your give victories through the law root is good. And it might be that lowering the salience of the things that for with the law, it's actually

going to really against you is a helpful, but I'm not sure. I think it's a good post. What do

the tariffs case learning resources because, you know, not to very the lead, the president loses pretty big time in this case. And, you know, before we get into the legal weeds, I mean, you know, Trump is mad, right? He doesn't like this. And I, you know, the segue is I wonder whether this will jeopardize, you know, solicitor general sour, right? At all, you know, I'm not saying it should, but I just wonder, yeah. I don't know. It also depends on what what it looked like, you know,

if what were the conversations like, like the the S.G. said, look, Mr. President, you know, you're going to list this one. I'll do it or did they say, I know, you know, we can win this one. Yeah, but also one other, you know, I guess is something in between, right? I don't think that this

“was an absolutely unwindable case at the outset, right? I know. I mean, I think I think before arguments,”

my money, which I did not bet other than the way we all are invested in the economy, my money would have bet on them. You know, a probability of being with a government post argument less so. Yeah. I saw that in one of the press conferences, the president blamed for an influence. So the justice is our, or somehow susceptible to foreign influence, and that's part of why the court will against him. Don't totally understand the cause of training there. No, but maybe that's

a, it means you tell the solicitor general sour as you say, you know, well, surprisingly, obviously, we went, we went, although American justice is, but the, we lost the traders. Yeah.

Including two triple pointies. This would be 500 up as every now 0.61 percent.

Is that a lot? I mean, it's not, I mean, it's 61 basis points. It's not terrible. Yeah. But yeah, it's not a huge shot in the arm for the stock market. I sort of, I guess that the market had already priced in some expectation that this was going to come out this way, because other, because I sort of thought that, you know, you'd see a little bit more of a boost than that. Right. The prediction markets, you know, had this at like a 70 to 80 percent probability already.

And of course, there are these questions, which I guess we'll talk about soon about like,

“well, what does this actually mean? Can the president still impose the same tariffs on their way?”

Well, this disrupts our various trade deals to be after now come up with billions of dollars to pay

the people who we took from apparently unlawfully. And so Trump has announced he's imposing a new 10 percent

global tariff under section 122 of the Trade Act of 1974, a statute that I have not investigated. I don't know if you've looked at the text of that at all and whether there's going to be any kind of similar arguments there or whether that one is a statute on which Demonstration is on firmer ground. I looked at this a while ago and there are several different statutes, but I think some of them just require more findings and procedures than the president's currently used. So I, you know,

I assume some layers were already kind of working on this beforehand. Oh, yeah, I would imagine. So we'll see what it looks like exactly and they're all up. I think the trade act and these other statutes make it harder to do the thing where somebody is me and D on the phone and you're just doing a lot of really double the tariff. That would be nice to have that. I wish I had that power. Oh, well, you can do that. I could just tariff, tariff you. You can do it to anybody you want to

do business with. You just be like, you're a mean to me. So I'm not, I'm not buying any of your products. And let's give me that bill that does count. I'm going to see what they say, I suppose, so I don't I don't know how we're trying to play or, you know, I'm, I'm mad. I had to hand this to the tariff. So the Wall Street Journal has a, has a short piece about how Trump learned about it. He was in the middle of a closed door meeting with governors and a trade advisor came in

and handed him a piece of paper. And he, he looked calm, but apparently told the governor's he was see thing inside and called the ruling a disgrace. It's interesting because they don't, you don't normally think of the president as somebody who bottles off his negative emotions,

but apparently it does. Yeah. Okay, so should we actually just say what happened first?

And then we'll talk about, uh, yes, although, okay, I was going to just note that he was pretty mean about just as this course that you embarrass to of his nominees. So I think it's an

“embarrassment to their families if you want to know the truth, the two of them. Why the, why the”

families? I'm not really sure. Maybe their families like tariffs. Asked if the six justices who voted to undo his tariffs would be welcome at Tuesday's day instead of the union

That's just, I have to actually do think they'll come? Yeah. Yeah. Okay. I think that they're

“not going to skip just because the president is mad at them. I think that you show your authority”

and independent, it's by still coming. What if they think that he's going to y'all them if they come? Then they're going to sort of silently mouth, not true. All together. Yeah. Well, six of them. Okay. So the Supreme Court invalidated the tariffs by voted six to three, the majority opinion in part, plurality opinion in part, especially just as Roberts. It is joined by settlement or cake in Gorsuch, Barrett and Jackson in parts and other parts

only by Gorsuch and Barrett. They're occurring opinions by Gorsuch and Barrett and Kagan joined by settlement or Jackson and Jackson. So four different current opinions. Yeah. The, the, the ones by Kagan and Jackson are, are partial concurrences, right? They're concurrences in part in concurrences in the judgment. Yes. And the Thomas has a descent and then Kavanaugh has a

“descent to try to put Thomas on the lead out. And here are you very long one. And it broad strokes.”

So the reason the majority is a little complicated is the majority strikes down the tariffs on two grounds. Sorry. Just as, just as Roberts and Gorsuch and Barrett would strike down the carousel on two grounds. One, if you read the statute, the president should lose. Two, if you read the statute with the help of the major questions, doctrine, the president should lose. They have six

notes for the first proposition that if you read the statute, the president should lose. Just as a

matter of kind of normal statutory interpretation. Yes. But only three that apply the major questions, doctrine. And this, I mean, decision is fascinating. Not just what happened, but for there's a lot of back and forth among various opinions about the major questions, doctrine. And these me even more confused about what the major question, doctrine is. Because of course, the major questions, doctrine started out not being the major questions, doctrine. So that there were just some cases that

interpreting the statutes in a common sense way. And then after a while, the court was like, well, I guess we can call this the major questions, doctrine. And now, you know, some of the justice are doing the major questions, doctrine, while not calling the major, I don't know, it's very confusing. What the, yeah. So, you know, I don't know where to begin. The chief justice is opinion, majority opinion is quite efficient. Yeah. I thought, well, written gets the point in just

barely 21 pages, not just a little bit onto the 21st page. Yeah. So maybe the best to begin is just with hypo. Okay. You can read the whole relevant section. I'm going to read two paragraphs of the chief opinion. So one is paragraph two on page two, uh, enacted in 1977. I epit gives the president economic tools to address significant foreign threats. When acting under I epa, the president must identify and quote unusual and extraordinary threat, unquote, to American national security foreign

policy or the economy, originating primarily outside the United States, and he must declare a national emergency out of the national emergency act. He may then by means of instructions, licenses, or otherwise, take the following actions to deal with the threat. And then it's big quote. Investigate, block during dependency of investigation, regulate, direct and compel, nullify, void, prevent or prohibit any acquisition holding withholding use transfer withdrawal,

transportation, importation or expectation of or dealing in or exercising any right power or privilege with respect to or transactions involving any property in which any foreign country or

national thereof has any interest. And then the chief summarizes this at this very first paragraph

of part two of the opinion. Based on two words separated by 16 others in section 1702A1B of IEPA, regulate and importation. The president asserts the independent power to impose tariffs on imports from any country of any product that any rate for any amount of time. Those words cannot bear such weight. Right. So that's your core holding is regulate importation. Just not include the power of tariffs imports on any country of any product at any rate for any amount of time.

All right. What do you write? Just as a matter of be six-stitch your interpretation.

“Well, this is, I mean, I'm delighted by this opinion. I think it's right.”

But it would have been easy to write an opinion that says the power to regulate importation includes the power to say you can only import it if you pass some money. Yeah, right. So the conclusion that the power that the words regulate an importation don't include this power

version of this is driven by the fact that the president is a crazy person who can't return space power.

There's the Gorset version, where it's really driven by the fact that it would balance an annihilation doctrine. So it allows the major questions doctrine. It's the bear at version where we say, well, it's not that strong, but still like the kind of separation of

“power is fact in the background. Like there's lots of different ways to come at it. And I think that's”

right. But I do think the words regulate an importation are not doing the decisive work here. Do you disagree? Yeah, I think that's that's not a crazy belief. I mean, it seems to me that, you know, one thing that I literally struck me is important in the background is, you know,

that this is the kind of power that at least as I read the constitution is in the first instance,

you know, you know, poorly within Congress's power. Right. I agree. You know, right. So that could be a piece of background fact. Yeah. Right. The Congress shall have power to lay and collect taxes, duties, imposed and exercises. Right. Right. But you know what other power is greater than Congress's power? The power to regulate commerce of foreign nations. It's even just the power to regulate importation. That's like almost straight out of article one. Yeah. But there's I mean, but I mean,

there it's they're saying it clearly, right. Like my point is not that they can't do it, but my point is, you know, you might wear there's a clearer, yes, granted, the authority to Congress, you might want to see them explicitly use the governing language to transfer that power. Yes. Exactly. So that could be what's doing the work is the text, the constitution, kind of surveillance, a dictionary. Now even in constitutional law, we often, we often have a lot of overlap

between the tax power and the commerce regulating power. And you say, as this really attacks this really regulation, you know, if I be, of course, the overlap, really can do ahead. So again, it wouldn't be crazy to have said, like the tax power, the power to tax interstate commerce and the power and international commerce, the power to regulate international commerce are two big powers

“that are deeply entwined. And you sure Congress could separate them. But now I got, I think”

the majority's right. And I think they're even right without something fancy called the major questions doctrine. But this is sort of where I'm confused with the major questions doctrine is. Okay. So you think they're right for what reason then? Something in between major questions and straightforward sexual interpretation. Yeah. I guess this is what, I mean, this is what we call context now. It's just like, if you read these words in isolation, I don't know, you know,

wouldn't be crazy to read them either way. But if you read them in the background of the constitution, sort of common sense. And for me, the other kind of common sense piece of this is the fact that this power is triggered by the declaration of a national emergency,

which both doesn't seem to have been met here, but whichever it seems to not want a second guess.

And I find that combination tricky. Like, if you told me that, no, we're going to read these words really broad, but there has to be a real national emergency. If there's not a real national emergency, the courts will stop it. Then it would make more sense to read the terms for the really properly. So what, what if the statute didn't have any kind of emergency threshold? So similarly, I think the statute just said, like, anytime the president thinks it's necessary and

proper, he can regulate importation. That would be another reason to read it narrowly. But it's maybe you had the same words with some behind some sort of a locked door. They could only be accessed in emergencies. Then context might say, okay, actually, you should read these things kind of broadly. And on its face, is that kind of statute? On its face, I would only allow you to use the powers

“if you get the key to the door. It's just that the president has the key and nobody can.”

Yeah, my metaphor got away from me there. But I mean, here, no one is saying, we're going to rule against the president because there's not a emergency, right? We seem to just be taking that for granted. It was litigated. It was before the court. They would have had to to write an opinion ruling for the administration. You do still have to say, why this is an emergency or the courts are not allowed to say it's not an emergency, right? The phrase is not even

emergency. It's an unusual and extraordinary threat. And so you have to respond to the point that actually balance the trade deficits that are not unusual, but they're for a long time. They're not particularly extraordinary. And so on. Now again, you could say, well, just we're not

this was actually two linked cases, learning resources and VOS selections. And there was a question about like what courts properly had jurisdiction over these challenges. And one of the cases came up through the court of an international trade and the federal circuit and another came up through a regular district court to the DC circuit. And the court says, you know,

basically the first one was right, intersectionally, and it should not have come up through the

district court to the DC circuit. And but concludes that in like a very brief footnote on page five. Yes,

“is that surprising that it's just so brief? No, I think that's that was the conventional review and”

the only reason the only reason to expect anything different is like with the court of sort of squinted at the jurisdiction in order to reach the case if they had to. Yeah, because they had the version that had the right jurisdiction, the wrong jurisdiction to the right. Yeah, it has the funny consequence, though, that so learning resources versus Trump is the one that came the wrong way. Yeah, and VOS solutions is the one that came the right way. So there's, you know, the old

joke like who's buried in grants to them and the answer is nobody. It's like, I bought it right

whatever. It's not buried. It's like, did you know what the punch sign is? That's the punch sign was granted. No, the punch sign is okay. Oh, okay. Let's do it. All right. Is that here in Missouri? I thought it was in New York. He's he's his farm is here. Yeah, well, Galena, he grew up in Galena, Illinois didn't he? I don't know. Grant's farm is in Missouri. So the version somehow you could do a version of like, you know, what did learning resources, what was the learning resources

that's got learning resources versus the Trump? They lost the dismissed for lecture instruction. You know, or the adequate goes over how to how to do the joke, but it's funny that the learning

resources is not the Victoria's party. Yeah. We actually got, I don't know if you saw, we got

an email about this. I did from, from Zach Albun. I'm pronouncing that correctly. And he says, "I write you with the question I suspect might only get answered by the divided argument team." And then noting, you know, noting this weirdness about the caption of the case, yeah, he says, "Doesn't appeal of a jurisdictionless court order to court that does have jurisdiction, cure a statutory subject manager's jurisdiction problem?" At least for the purpose of the court of appeals.

And what do you think? No. Okay. That means the D.C. circuit also elect jurisdiction, yes. Which means the Supreme Court also elect jurisdiction? I'll have jurisdiction to determine

“jurisdiction. Yeah. Yeah. But in learning resources versus Trump, I think the appeals”

will all be dismissed. Yeah. It has to be. Yeah. Right. Okay. So there are like, I feel like a lot of the action in these opinions are in the concurrences, but there are, I think, three small things from the majority are doing a flag. One is the treatment of D.C. in more versus Rican. This is the 1980 one precedent written by Chief Justice Ringuist during the term John Roberts' Court for him, upholding presidential authority outside of the statutes to deal with, does it spend various

lambs as part of the negotiations of the Iranian hostage crisis? This sort of long-making to stand for the proposition of like, don't ask too many questions when it's a big foreign affairs thing. Like the president, and it's a little, because that article too, is it? What is it? And that argument that was one of Chief Justice Roberts's few questions was, you know,

“who doesn't D.C. in more, isn't D.C. in more extremely narrow and distinguishable?”

And the majority says that. They say, the government invokes D.C. in more versus Rican, the case offers no support. It's extremely narrow, and then there's a footnote where it quotes like all the various parts of the opinion, or it said, where all there was often this case, where this is narrow. We're not from D.C. in general guidelines. And then the footnote says, this is not quite, no, no a thousand times, no, but should have sufficed to dissuade the principal

set for invoking this case with respect to the quite distinct legal and factual issues present here. What's interesting? Yeah, that's, um, and what is known? So, I was trying to figure this out where the origin of this phrase, and one answer I'm founding in the internet is it's a sort of a, it's a phrase that that partially comes from Shakespeare, the two gentlemen of Varuna. Uh-huh. Why this is it? My heart accords their two, and yet a thousand times, it answers, no.

Um, the other thing that I'm finding is a, uh, 1935 Flasher Studio animated short film, starring Betty Boop, called No, no, a thousand times now. So it's either Betty Boop or Shakespeare, or maybe there's something in, in, in between. So I'm, but I, I found a, uh, English dot

it was a 10-year-old post. Here, uh, the person asking the question claims that it has possible

origins in India, and this person finds sort of a reference in animal farm by George Orwell. No comrades, a thousand times no. So not the no, no, right, formulation, but the majority uses the no, no formulation. Yeah. And in quotes, yes, but they're not quoting anything. I mean,

“then, I mean, they don't say anything. Yeah, I mean, so far, the only thing I'm finding for”

that precise formulation of words is the Betty Boop thing. I mean, I mean, like, I'm not, yeah. Okay, let me see. Uh, I found a, uh, a 1967 New York Times article. Okay, that has, this is not,

this significantly post dates, Betty Boop, but the, the headline is in the nation. No, no,

a thousand times no, reluctant and unconvinced, flexible on Vietnam, the democratic alternative, I don't know if that is that about the age of like the justices youth, like, they remember this headline from, I don't know. Um, okay, there's apparently also a song, like from the Betty Boop thing else, then, becomes a song. Let's, I don't know. Okay. Yeah, so I mean, this is what I've been able to figure out based on, uh, a few minutes of Googling, but, you know, it's possible that you know what,

“no, I, I think we got to go to AI on this. What, okay. Last time we tried that, damn it,”

let us just try. Yeah, but this, this seems like the kind of thing that might be in core AI wheelhouse.

Okay, I'm asking both Claude and ChetGBT. Uh-huh. Here's what Claude said. His roots in

melodrama, both theatrical and operatic, widely popularized, and eventually period as a cliché of the dams of the interest, refusing to villain at now, at advances, the kind of scene you'd find in Penny Dred Falls. Uh, and so so far, uh, phrase also appeared in 1935 song, which played on this melodramatic tradition deliberately for comic effect. By that point, the expression was already well established enough to be recognizable as a cultural touchstone. Okay.

But if it, if it, if it, if the idea is, it's like playing on the dams of the stress that the dams wasn't really saying no and saying no, no a thousand times, no, then it's the idea that dams and more doesn't want to be cited, but wants to be, um, okay. The edge of E.T. gave me an answer that was much less useful. Okay. That's often my experience. Yeah, that's surprising. Okay. So I don't think we're going to get the bottom of this one. Okay. I feel like this is, uh,

place where the, uh, divided argumentless community can outperform AI. I feel like somebody somebody listening to this understands the layers of what the court is going for with its reference. Yeah. And I hope you'll tell us. Call, right? But I want to know. All right. So you said was there's something else you said? Okay. That's one. To whether it's one of my, uh, favorite cameo holdings. It's the court does make, uh, a brief

constitutional alternative holding that I able. You partly unconstitutional if the administration are right, not because of the non-delegation doctrine, but because on page 15 of the taxing exports clause, they say a country reading would render I eat but partly unconstitutional. I eat but authorizes the president to regulate importation or exportation taxing exports. However, it's expressly forbidden by the constitution article on section nine plus five. I mean, that's not wrong, but it's just kind of

weird that dumped in there with like two sentences. Yeah. Kind of, is, I mean, is that dictator not, I mean, it's part of the reasoning, that's part of the reasoning. I mean, when it's the last time the court has said something about the taxing exports clause. And like said that a statute, you know, might be unconstitutional of the taxing exports clause. I'm not sure. Well, do we ever tax exports? There's litigation right now, somebody told me a lunch about the new regulations of the

“NVIDIA chips to China, which I think say you can only export the China if you give the government”

of 15% cut. Yeah, that sounds like an export tax, sounds like an export tax. You know, I'm sure the lawyers for NVIDIA or whatever this is challenging it will put this paragraph. I remember at this point being made in the in the childhood spree. So I remember thinking, oh, that's cute. Yeah, you know, but a lot of wasn't too cute. Okay. So that's two. You said you had one more. Okay. The last is,

about what happens next. Yeah. Yeah. Is that weird? So there had been some discussion at our

“demand about, you know, can we make, can we, can we, stay the mandate or can we make this perspective?”

Only just something to stay off the apocalyptic, you know, concerns that the defenders of the tariffs raised about, you know, what's going to happen, billions of dollars in refunds? Uh-huh. Not nothing. Absolutely nothing. Nothing. Right. And so, so we have to go through a whole round of litigation about that now. I guess I'll put, I mean, do we know anything about that litigation looks like or what the, I mean, you, I'd wear, you go, a quarter of an additional

trade. I mean, I think so. Okay. And I think, I think there is some theory that there's, you know, people are differently situated based on, you know, whether they chat promptly, challenge the tariffs or not, and so on. But I think in the period between argument and now, a lot of people up in general, they're tariffs. Do I get any money back? Uh, I don't know. I don't know if I paid any tariffs directly, as soon as it was absorbed into the cost of goods. I, yeah, I'm not sure. It is interesting

because the, the Supreme Court granted a stay before they, uh, after this. So, you know, the Trump administration and the court that are the reason there's been a lot of tariffs paid that they're now going to have to land. I mean, there still would have been some, right? Yeah, but for instance, if they knew the cases were to come out this way at conference, I know, I guess I know why they didn't do this, but they could have, like that afternoon, all the day, and then said,

it opens to follow. Now, I guess, everybody will lost their mind and Trump would have called them traders, and we wouldn't even have this nice opinion to stand against it. But that just, you know, now, now that we've had the delay, now that we understand that the delay was not because they majority have been just taking a long turn to write, but presumably because the other 149 pages were taking a long time to write. Like, it's worth asking, I don't know,

was that worth it? Like, I like a lot of these opinions, but how many billions of dollars had to be paid? Yeah. So, that just as Thomas could launch a new theory of the non-illation doctrine, and such as, yeah, just as Barrett could argue about his better next while. Yeah. Well, why don't we walk through those opinions, having, you know, dealt with the the brisk majority,

and I guess go to the Gorsuch opinion first. Gorsuch opinion is basically like,

I'm here to tell you almost everybody else in the court is a hypocrite. This one has a godfather type quality. Like, you know, we've talked to, like, the sort of, we settle all the family business. Yeah. Like, like, like, here we are. I'm going to tell you about how Kagan said to me or Jack said Barrett, Catherine, Thomas in the lead hall, or all, not just wrong, but, like, basically hypocritical, right? In different ways. Yeah. I don't want to put too much of it, but he's sort of like,

lists all the different ways in which he wants to come into my thumb and he says, it is an interesting turn of events. Each camp warrants a visit. This whole opinion also, I just thought, had a, I don't want to say, Cassis Spiritions of Justice Gorsuch is writing a style, but there have been times that he gets sort of, like, a little purple. Like, we get kind of really worked up. And this one, this one is just like, it's a dry and sharp in a lot of places instead.

“Yeah, you know, beautiful way. Yeah, I think it's good. I mean, it's not, I mean, I don't think”

he's ever going to be up there with Scalia, but I thought this was solid. Like, this is more than solid. This one, this one scores some good points. Okay. I think you could have been a little shorter,

but it's true a lot of things published at least a million dollars. Okay, so first part of his opinion

is trying to dunk on the liberals, right, who took the position that this statue just, as a straightforward, matters to sure interpretation does not authorize the tariffs without resort to major question of doctrine. And, you know, there, I mean, he really is just using this opportunity to to kind of highlight perceived hypocrisy. He was like, look at all these other decisions where they said Biden administration could do really broad stuff under, you know,

kind of big statutes. What do they think that now? So, but isn't he right? I mean, you know,

“I think it's not an unfair point. I mean, I think that, you know, you can often draw”

distinctions between, I mean, every one of these cases comes up with its own unique

statutory structure. It's own unique facts. I guess, I mean, it is a little, I'm always careful

about how to use the phrase ad hominem, right, because ad hominem is a, is a particular logical

fallacies. But here, I guess it, it doesn't really matter to the truth or falsity of the underlying

argument whether other justices have been consistent or not, right? So, it just, it sort of seems like

“why does this matter other than that sort of score settling? Right, I think it probably matters”

in the future, right? So, so if you, the fact that now the major question's doctrine has been used in a bipartisan way, like it's not just the major questions about democratic presidents doctrine, which you can tell now is up in the air. And has been used, you know, you know, the net, the net consequences, the net amount of anger, presidential anger that the major question has caused, might even be more Republican anger than Democratic anger? Yeah. That gives the doctrine, for those

who care about the kind of thing, that gives the doctrine some added legitimacy when the majority

wants to apply the future. Yeah, although it hasn't, I mean, it hasn't been invoked by majority here. Right, well, that's just it. So, the future that dissent will maybe want to say, no, no, you know, that, yeah. This, this one doesn't count on the major question's doctrine score

“cards. It was an easy case. The president wants to lose anyway. So, the kind of the question of,”

it affects the stakes of the major questions doctrine, and maybe the stakes of the, how partisan is the Supreme Court? I feel like it's one of the big sort of stakes of this case. Like, I got to imagine right now if you're John Roberts, you are hoping to see an apology from some of the lost, lost, lost persons and newspapers, who spent last summer talking about the Supreme Court, and John Roberts, I totally sold out the Trump and the court is terrible,

and so on. You know, you know, because of the discreet opinions, but you're thinking like, you know, no, no, no, no, no, no such policies will be forthcoming, of course. You don't know. But if that's no, it's all right. So, maybe score some points there. Okay, who's next in the line of Gorsuchfire? Let's see. It's a long opinion. You know, I mean,

“so he goes, and I mean, it's not just, you know, criticizing others. I mean, he is offering his own”

substantive, namely lengthy defense of this doctrine, and trying to find, you know, trying to respond to the argument from critics that this is this newfangled made up thing. And he, like, finds origins in corporate law from, you know, pre-founding and founding your corporate law. Uh-huh, and 18th century British cases and the railroads. And here I will also say, this course has just a great taste and citations. So he relies on Mary Builder's excellent article,

"The Corporate Origins of the Judicial Review," published by the Eleudernal. Back when I was a y'all general editor, he relies a lot on the work of TDR Vendor Christian Barset, how do I feel like all historians? So this is a lot of good stuff in here. You might wonder whether we needed it right now. Do you think he sits down and read those articles or is it more like he's kind of relying on good clerks who read the articles? Uh, I've had any read them. I mean,

I assume somebody is telling him what to read. I assume he's not like doing a West law search for and like reading the false positives, but he seems like somebody who would, I mean, he puts in the hours. You know, I don't know. Okay, so right, so we sort of build up the idea of the major questions

Dr. Israel and so on. Then finally after 17 pages of that, we turn to the next camp.

Right, there's a little, little general error with her. Uh, a little, yeah. So because he calls it a thoughtful effort. Yes. So I don't think does he even think the literables are thoughtful? Well, okay, fair enough. But so the, of course, the seat of play is that just as Gorsuch defends the major questions, Dr. In, on sort of non-delegation grounds on West Virginia versus EPA, then Barra comes along on Biden versus Nebraska to say, no, no, no, no,

it's not a substance of canon, substance of canon. They're bad. It's actually a sort of linguistic canon that just is a way of, you know, dealing with ordinary interpretations of instructions and the famous, sort of example, the babysitter and the alligators. So now we have Gorsuch, kind of the next move in that, uh, which is to say, it can't really be just just sort of common sense. Like what's really doing the work is a belief with the background legal arms. And he, you know,

works on what if instead of a babysitter taking the kids to the amusement park, it's a co-parent, the co-parent action may be acting correctly because they have different sort of background authority, draws on delegation and agency. You know, and I think we haven't gotten just as bare as concurrence yet,

the gap between them may be narrowing. Uh, he does have this footnote. His first footnote, uh,

“is a sort of spicy one and it's in the bearer section for no one, uh, where he says,”

today, just the spare protests that the foregoing discussion takes down a straw man, but it was just as bare it, who previously wrote that the major questions doctrine grows out of a common sense, principles of communication. And it was just as bare it, who used the various illustrations were counted above to suggest that our major questions doctrine could be explained, where reference to the kind of common sense that goes that's saying.

If Justice Barrett now means to put all that to the flame, the major questions doctrine is better for it. And that's a nice, like the straw man and the flame is like good. No, yeah, that's not a metaphor for that does work. Yeah, it's that one. I thought that was that was spicy. I thought yeah, like he's sort of, I guess she's not being live on fire in the metaphor, right? It's just her way through the view, you know, that by the risk of Nebraska is going to fire. Yeah.

Okay. Third camp. All right. That brings us to the third camp. Is it the Kavanaugh camp?

Right. This one, these are thoughtful and merit-careful consideration. Okay, wait, so we went from nothing to thoughtful, thoughtful, but harbour doubts. And this is thoughtful, careful consideration. Is that better or worse than thoughtful and harbour doubts?

“Not sure. I mean, it's sort of suggesting that you have to, like, spend more time to”

go through it to figure out that it's wrong. Okay. So this is the idea that while I should have, you know, it's a big deal. It includes this and/or there's a foreign affairs exception. Is that the, hmmm. So, you know, here he's going to go through the statutory analysis. And he says, you know, the descent consults four clues. We have sometimes employed in our major questions cases to help assess whether they're statute. Clearly authorizes and asserted power.

And he says, the descent formulates these clues, largely as I would, but to my eyes, the descent engages in a little great inflation when applying them. Okay. So, clues. First, is the president seeking to exercise an unheralded or newfound power? Desense says, no, pointing to this example from

President Nixon. Gorsuch says, that's wrong. A single time, one never tested in this court.

“Yeah. Okay, clue two, how has the executive branch interpreted IEPA in the past? Desense says,”

presidents have long understood IEPA to permit them to impose tariffs. But he says, again, you're relying on really kind of isolated pieces of evidence. And, you know, no president until now has invoked IEPA to impose a duty, even one percent on one product from one country. Okay. Miss match between the action, the executive official seeks to take in his expertise. Okay, here, he agrees. No mismatch. The tariffs fall in the president's wheelhouse. Okay, fourth is the

president relying on oblique elliptical or cryptic language. Desense says, no, because this does not involve elephants and mouse holes to, you know, use of a famous metaphor. And here, this statute was designed to convey major powers. It's a fair point as far as it goes. But our cases ask not just where their provision is a mouse hole or ancillary. They also caution against reading extraordinary powers into broader general statutory language to see what's Virginia versus EPA. And that doesn't

look good example from, you know, as I see it then, three of the foreclosed descent relies on kind of against it. So he reaches the opposite result on that. And then, okay, next part. Right, then he says, okay, if the president's claim fails our usual major questions to doctrine, the descent says we should make an exception to it for a foreign affairs. Once more, I guess he has limited agreement, which is, and there's actually a profound and interesting point. There's everybody has an intuition

that there's some sort of exception for these various things for something kind of foreign affairs. And one way to view the exception is, by topic, like it's foreign affairs, that's presidential. A different way to view the exception, which is just a course of this view, is by, like, the Constitution. If it's something that the president has article two authority over, then the standards are relaxed because not all his powers come from Congress, the non-relation concerns a diminished

major questions, the standard of diminished and so on. And tariffs, while they're arguably foreign affairs, are definitely not article two, the administration accepts that the president doesn't know

there's a sort of a fight over who is better supported by Kurt Bradley and Jackolt Smith who have an article called foreign affairs, non-delegation and the major questions doctrine, and who, by my read, are really taking some of the course of position that these notions are relaxed when there is article two authority. But, you know, again, if you sort of squint at it,

you could try to turn that into a foreign affairs exception. Yeah, and the first appearance of

this article on page 30 of the course is to send is, at the time of recording of improperly blue book, there's the incorrect date in the parent article. Oh, it's 2004 instead of, yeah, it's actually 2012, yep, oops, my colleague Connor Clark pointed this out to me. Yes, there's a different 2004 cracker Bradley article, said it on the next page. Yeah, there's a lot of cracker Bradley sedations in this piece, which is great. Can I just, there was one thing in the majority that I

“meant to flag what I didn't, that's I think real into this discussion. Is it a blue figure? But,”

is it a blue book in here? No, no, no, no, which is, you know, relevant to this major questions,

issue, there's the question about, you know, how major is this power, yep, right, and how, you know,

significant are the matter at issue. And on page 11, the majority kind of uses the government's words, against it. He says, as the government admits, indeed, both the economic and political consequences of the IEP tariffs are astonishing. In the present's view, whether we are rich nation or a poor one, hangs in the balance. This is from the introduction to the brief that, you know, kind of, you know, for the government, you know, very bold language that I think got a lot of attention. I

think we may have mentioned earlier in the show. Yeah, I thought that was, that was effective, kind of twist twist the government's words around. Well, it makes you wonder, I mean, like, because of course, when the government was asking for a certain expedited briefing at a stay, obviously, the reason they were asking for it is I think this is a major question. Oh, yeah. So, almost, if you really wanted to ruleify this doctrine, I also want to rule

should be like, if it's a government on top of the petition, it's a major question's case.

“Like, that's why they're here. They don't petition for certain minor questions.”

I mean, I mean, until John Sauer reads your blog post and changes their suit strategy. It also, two pages later, there's this, a line, I didn't mention earlier, where they sort of, the government says, you know, the central thrust of the government's and the principle of sense proposed exceptions, appear to be that ambiguous delegations in statutes addressing the most major of major questions, which should necessarily be construed broadly.

But it does not follow from the fact that the statute deals with major problems that it should be ready to delegate all major powers for which there may be a colorable textual basis. It's in precisely such cases that we should be alert to claims that sweeping delegations, particularly delegations of court and rational powers, lurk and ambiguous statutory text.

“There is no major questions exception to the major questions doctrine.”

That's one of those chief lines. Yeah, yeah, I know. Like, of course, there's no major questions dot exception to the major questions doctrine, but, you know, okay, who else ends up on course such as murderers, Rau, if we, I mean, haven't we, do we have Thomas too? Oh, yeah, we've gotten through almost everybody. Yeah. So the chief, chief, you know, is safe. Yep. Okay, chief is the one person who escapes just as Chris, such as craft. Yeah.

Does he pick on just this Jackson independently at all? Yes, he does a little bit at a foot now. Yeah, very, very briefly. Where he, you know, says, is actually responding to Barrett, he says to the extent, just as Barrett suggests, any skepticism, common sense principles of communication, might or might not advise drives from a practical understanding of legislative intent rather than external and substantive article when values that poses still further

and familiar problems down that road lies all the pitfalls associated with reliance on legislative history, and those associated with conflating unenacted legislative intent with the law. See, Scalia and Garner are, you know, the classic volume that's no trotter down, you know,

basically by the conservative justice is all the time. And then also sites to the Jackson

Center opinion that we'll get to without any, without any further editorializing, yeah, basically it's sort of like saying, like, this is so stupid. I don't even need that. I just need to, like, point to its existence to tell you why this is a bad idea. Yeah. Okay, but what does he say about

view. Okay. Which is, we're interesting. But let's just say, Justice Thomas has a new theory that

navigation doctrine. Yeah, I didn't see this from coming, which we also had to wait $0.00 for. Yeah. And that's, of course, it's just got to go. He is doubtful. I don't remember if he calls it thoughtful. It's something, it's doubtful. It raises lots of questions. Okay. All right. All right. So then, I guess, let's go to more opinions. So, okay. Justice Barrett, short concurrence. Yep. We're she is, you know, I kind of wonder whether she just wrote this only in response to Justice

Gorsuch's opinion, like it's what she says at the beginning. I write this, I write only to address Justice Gorsuch's concurrence. So I guess he circulated his concurrence. And then she decided she

“needed to kind of stick up for her view. I think that's right. And she says to the extent that”

Justice Gorsuch attacks the view that comments and it's alone can explain all our major

questions, doctrines. He takes down a straw man. I have never espoused that view. Right.

And then she sort of disagrees, though, also with his claim to find the strong foreign major questions, doctrine. Right. I mean, you strong, form self-sensitive cannons, which would be beyond interpretation and policy making. And then she, you know, talks about his cases. And she says, Justice Gorsuch seems to disagree pointing to a few late 19th and early 20th and three cases. But these cases, like our modern ones, our consistent with my context-based approach,

they focus on ascertaining, not shaping with the statute of communicates. I would not treat this evidence as precedent for a judicial flex. Yeah. I liked that one. That's a good one. Yeah. A little colloquial, a little modern. So do you have a view on the Barrett Gorsuch fight at this stage? between which I like more, or which one is correct? I don't know. Yeah. Well, what

“do you mean by correct? I mean, correct. And the best way to explain what the court has done.”

Well, I mean, I mean, I think as a descriptive matter, Gorsuch is probably right. Okay. But as a matter of, like, law and what the court's role is, is Barrett right? I guess I'm more drawn to her approach, right? I'm less persuaded that, you know, we need a strong form of the non-negation doctrine and then less persuaded that that strong form requires, you know,

interpreting statutes in ways that are not the best reading in order to have been never backwards

to avoid problems and where that I don't necessarily think or problems. Yeah. I think I'm with you. I guess I would say the major questions doctrine just just bear it describes, strikes me as fine, a perfectly reasonable way to interpret statutes. Yeah. It does not strike me as the major questions doctrine that the court has employed at least in, yes, like West Virginia versus the EPA, might be the most extreme one. Yeah. So, and maybe that's part of what's confusing. It's maybe,

you know, maybe all along, even back and just as course it is English cases, the official story with something more just as Barrett's doctrine. But when you look at them, you put up the cases together, it's obvious that something bigger is going on. Yeah. I mean, I do wonder whether the distinction,

“you know, they're fighting about like really as a distinction. And I think just as course it's just”

sort of getting at this, which is like, you know, she's, you know, the kinds of things that she kind of contacts that she thinks one should bring to bear are kind of substantively normatively laden, right? Yes, like going back to the babysitter example, like it's hard to understand that example, without some, you know, understanding about what babysitters should do and are allowed to do. Right. And specifically the example being like, can she just go take the kids on a two-day trip to a

amusement park? I agree. And I thought until this case that it might be, this is the kind of case where they would come apart in that on non-delegation grounds, it's clear that this is not an article two case. This is an article one case, because the power is an article one power, but on like Barrett background grounds, you could have imagined thinking, like you could imagine that the Barrett version would care more about the fact that it's foreign affairs than about the article one versus

article two question, because it's like drawing on norms or contacts or something rather. No, she doesn't seem to do. She seems to now want to say, it's the same kind of norms, it's just as close to curious about, you know, which is the part. Like that makes it seem like her view is now a little closer to his, you know, but I agree with you. I think weirdly, the cases where these would really come apart are kind of weird cases. So like a case where Congress

where we knew that Congress wanted to give away the store, but didn't want to admit it would be a

wanted to do this, but they didn't, you know, like if we've a letter, you know, a secret letter

signed by everybody in Congress saying like, here's a way to give the president a tear of power, but we want to ever get in trouble for it or something. If it's really about our original intent, then we really believe the letter, then presumably would say, oh, I guess, you know, I guess here they, this was their way of sweeping and regulate. Whereas for just a score such, he would say, look, the point of the doctor is to discipline Congress. It's not to power Congress.

“Yeah. The other one where it might really matter is as of when do you address majorness?”

Like as a, our statutes where something might really not have been very major when it was enacted, but it turns out to be major, like the power to regulate various pollutants or something that

that turned out to be bigger than we realized. And I think just as bare it is logically committed

to the view, the matter is as majorness as the time of enactment. What we're Congress have been intending to, right, delicator. It wouldn't have thought, you know, like, yeah, of course wouldn't have thought this power was big deal, because they didn't realize that applied to last stuff. And it turns out it does. Whereas I think, Gorsuch at least can say, no, we care about the majorness now, because the non-religation problem is partly created by like

unconstrained executive power and now to do stuff. But it doesn't like weird edge cases,

“it's not clear, something that's what they're really fighting about. Yeah. And maybe I guess we'll”

have to wait and see if there's a case where they actually come to different results, right? Yeah.

Or, and I do, do you wonder if at some point just as bare it is going to

recant West Virginia versus EPA, like the, the result there? Yeah, I say that, you know, now that I've thought about it, I probably was a little went along. We'll talk clearly in that one. It's possible we'll get to that. But certainly can. Yeah. Okay. Okay. Just escape. Okay. Another one that's not as long, um, mercifully, you know, where she is, you know, trying to maintain consistent with prior positions she's taken, that there is no such thing as

the major questions, Donald trend and, you know, why she thinks that here, unlike in some of the cases where she was in dissent, um, in response to the application of the major questions, Donald trend, you know, the statute just as red as best red does not allow this. Right. Although she doesn't spend a lot of time though explaining why this methodology wouldn't require a different result in the previous cases. Right. Um, because the course at attack is like,

look, it's great. You're looking at things like, this is unprecedented use the power, doesn't it could do this before? But we could have said the same thing about student one for your mess. I mean, you know, in on page two, I mean, she is talking about those prior cases, she says, in the past, I've thought the court used that doctrine to override rather than help

“discover the best reading of delegation statutes. Right. And so, so, I think here, she's saying,”

well, you can look at those considerations that kind of made your questions eat type things, uh, just to figure out what congressmen, but you can't use it to override. Right. No, I agree. I just think if you line, if you line up the kinds of considerations that are doing the work here and the kinds of considerations that she thought couldn't do as much work there, I mean, again, there, you know, every case is in the eye of the boulders, I'm not saying she's being

hypocritical. But, yeah, but I do think it's a little unsatisfying. She has a footnote where she kind of defends her consistency. Yeah, she says, you know, just a discourse, it says, I now must be applying the major questions doctrine in his own version of it. Given how strong his apparent desire for converts, I am almost regret to inform him that I not one, that I am not one, but that is the fact of the matter. I proceed in this case just as I did in West Virginia and Nebraska. I consider

a delegation of provisions language. We're on the scope to take in the statutory setting and apply some common sense about how congressen normally delegates. Mm-hmm. All that's, of course, that's really litigated on his own, our old debates, but other statutes unrelated to the one before us. So, you know, I think trying to respond to the, you know, allegation of accusation of hypocrisy. Yeah, well, I mean, she responds to it by denying it,

which is fine. But she doesn't respond to it by rebunding the evidence. Yeah. Um, which she doesn't have to. Yeah. Okay. So, I think it's about all I have on that one. Then we have a, you know, short five page opinion by Justice Jackson, you know, kind of robustly defending the use of legislative history. I thought this was fine. I mean, if we were looking for some, you know,

really provided it. It's funny just because, like, I feel like the rejection of legislative history,

“like House and Senate Committee reports is one of those few things that everybody kind of”

reach consensus on. Yeah. So, I like that Justice Jackson's bringing it back. Yeah. I'm not sure if she's wrong, I actually think in some ways the, the rejection of legislative history, sometimes has gone overboard. Yeah. Like, you know, the court's gone from sort of like, well, these things are been available and you shouldn't, like, use and replace the text to, like,

we just never wanted to know what them at all. Yeah. Yeah. Which is a great success. Like, famously

not as standard that they apply to the Constitutional interpretation where they look at, you know, you know, they're careful about when to be used these statements. So, I don't weigh, but whatever. So, it's not bad. It's just funny because it's like, you know, the old me and about, like, you know, nobody, nobody, just this Jackson. Actually, we should care about what just would

“history. Okay. So, then to send by Justice Thomas, he's got a new view of non-delegation.”

I confess I don't fully understand it. I was hoping you would explain it to me. Yeah. The court, I mean, this is, this is a, this is great stuff. I felt this opinion is getting a little bit

dragged on the social media sites you have blocked, but Justice Thomas thinks that the non-negation

doctrine really only applies to deprivations of life-librity and property. And so, it's related to the process loss. And so, the executive branch is bestowing gifts, grants, or administering the resources in the United States. That's much less questionable on-delation doctrines versus sort of making rules that affect people's life-librity and property. And so, why the tariffs not affect property? Well, they don't affect the property of citizens. That's due process right? Yeah. Yeah.

Although indirectly, they do, but sure, but that's. So, and to get there, it's like it's also weaving

“together. Michael McConnell's great book about the relationship between article 1 article 2 and the”

traditional powers of the king. It evolves that under-appreciated teach-a-bombs like article about

sort of the relationship between private rights and non-delegation, McConnell and Chapman on the relationship with the new process of suppression powers, cause there's like a bunch of, like, there's a really good Caleb Nelson, too. This also has a great literature. He said, we used to together in a way that may not quite be what any of them say. And I don't, I need to spend some more time with this to figure out exactly where all the moving parts are. But that core idea is not

crazy. Both in terms of sort of the values you might care about, and about trying to sort of figure out what an investable line is between permissible and permissible delegations. Now, it does have some problems, that just a score of such points out, like it's really not what anybody has been talking about in the non-delegation debates for one time, so it has a novel feel. Yeah. And it's not consistent with a couple of the most sort of like canonical historical examples, probably the most canonical

example of a fight about non-delegation at the founding in those terms. Was the debate about establishing postroads? Or Congress has this hilarious debate about whether they have to in the postroads legislation just specify the starting point in ending point of the road, or they also have to specify like 18 points along the way, like the president have the discretion to figure out how to get from point A to point B or they have to tell them. And the forces that say no to know

they have to tell them when. But I just tell Mrs. View that was misconceived, because where the post road goes doesn't implicate, like flabby or property. And so why would this just not be a structural implication of like festin clauses? Well, it is, but some part of the question is what is legislative and what is executive? So the McConnell view, which is originally the cross-give-you, the drafting of a article one and two, is that there are powers that are sort of like in their nature,

legislative and in their nature executive, which come from sort of like the British understand separation of powers. And those are due-processy powers. And some of the powers that are in their nature executive are given to Congress and some aren't like things like tariffs that the king used to do now are given to Congress. And so they are in a way when those are delegated back, it raises a different questions than when powers that are in their nature, legislative, are exercised

by Congress. It sort of relates to the question of what with the inherent article to authority of Venezuela. So this part is a little complicated and I'm not totally sure I understand all the parts fit together from the sources. But part of the other problem is the non-relation doctrine has

like in a non-delegation case, the legislature has enacted a thing called a law that the president

is reporting to carry into effect. The question is whether or not was standing the fact that it's called a law and the president's carry into effect. It's like still unconstitutional because it's

“really a delegation. And so that's why you need all these more complicated apparatus. This is”

about what is the power, what are the rules, what are the consequences to try to get there. The one of the, I think, funniest part of this opinion also is about is foot-on-one which is about what their tariffs are taxes. And Justice Thomas explains that he's going to refer to these charges as duties, not tariffs or taxes because traditionally charges for importing a customer in post is called the duty. And the word tariff was actually the schedule was the

name for the schedule of the listing of duties, not the duty themselves, the word tax. I think this

quoted as like very political, because I guess it's political, I guess it's a left-wing view to say that tariffs are taxes and the Trump administration's view is that tariffs are not taxes because everybody's against tax increases. I think that's the political stakes. So I've seen this quoted as like here is Justice Thomas pivoting the Trump talking point that tariffs are not taxes. But it's funny here because he's actually thinks tariffs are not tariffs. These tariffs are actually duties. Okay.

“Yeah. Okay. Well, yeah. I'm running on a steam. I think I should probably talk about the descent.”

I don't know if you had anything you wanted to say about Gorsuch's response to the Thomas view. No. Okay. And then, you know, I don't think we're going to get through all 63 pages of the Kavanaugh descent. Yeah. This is kind of like the pretty firm case where you had that like incredibly long descent. He was super mad. Yeah. Well, okay. This is the big deal. President Nixon could do it. Yeah. Can we just talk about the one piece which is this idea that the major

questions doctrine just shouldn't apply in the Foreign Affairs context? Yeah. So I guess I just don't understand the overarching premise that like foreign affairs is like a thing for the president. Right. I mean, there is no foreign affairs clause in the Constitution that's in Article 2. Right. There's actually a bunch of discrete, you know, foreign affairs relevant powers that are actually like some of which go to Congress and some which go to the president. And so this just like

this is a thing that gets said a lot, including by just this Kavanaugh kind of a lot, it just seems it seems to me totally made up. It seems to me totally anachronistic and like totally functionalist. Yeah. So I mean, look, Justice Kavanaugh is sometimes totally anachronistic and functionalist. Here are two points in defense that I guess. I do think there are a lot of cases kind of the kind of seem to say like like creates and then like that across a range of doctrines.

Yeah. They might really be about other things like they might be like the jurisdiction of the US courts, usually doesn't apply extra here, totally. That a bunch of things that involve it are actually their countries are going by the political question doctrine. So I do think if you're doing a kind of if you're looking at the forest and not the trees, you might see a big foreign affairs forest where the judiciary usually fears to tread. And that's where Gorsuch says,

well, yeah, that's because a lot of those things are article two powers. Like it's, you know,

“they're different article two powers. And here there isn't an article two powers. That's why it's different.”

And then Kavanaugh responds to the quote unquote thoughtful concurrence, I just this Gorsuch, to say, yeah, okay, but that would be, it would be jurisprudentially chaotic to try to now create a new approach, time the applicable to the major questions can and the foreign affairs context to such uncertain triggers. And I think what Justice Kavanaugh might say is look, in a different world

where Justice Gorsuch was in charge, we would have always been careful in all those cases to explain

where are kind of like foreign affairs, carve outs, we're coming from. Yeah. But the truth is we didn't we just kind of like created a foreign affairs forest. And now if you just this Gorsuch want to head in there and try to kind of like carefully map how it actually works onto the clause. That's a lot of work and jurisprudentially chaotic and I'm just going the forest. Yeah. I mean, I do think that's not giving the presidents enough careful credit and it's not very loyerly. Yeah, but

but there's a there's a common sense aspect to it, I think. Okay. Do you I heard somebody suggest this opinion was evidence that Justice Kavanaugh was auditioning to be appointed Chief Justice. What? No. But there's not a vacancy for Chief Justice. Well, as we all know, various people put the call on the Chief Justice to resign for a decade now. That seems unlikely. I mean, you know, Chief Justice is I think he's 71. I think he enjoys his job. Yeah. I think he's doing

Yeah. And I guess the the charge is that this is sort of like, this is an opinion written to

“please Trump. No, I don't buy it. I don't know. No, I think this is just this is these are his views.”

Yeah. He's very pro president, pro executive power. I wish, you know, that had I I would like to see, you know, I had a little bit more consistency when you compare this with the Biden era. I mean, your question's cases. You know, I think that that is I think, you know, that inconsistencies a little harder to justify. But yeah. So is this case a big deal?

I mean, I think so in a couple of ways. So I mean, first, you know, politically, it's the biggest

review the court has given to this administration. It's going to change the president's rhetoric with respect to the court. Yeah. And, you know, how that goes. And I think is maybe going to, you know, inform how the court treats him in the next couple of years. Yeah. Maybe not, you know,

“not formally, right? But I just, I think that, you know, if the president is really kind of taking”

a bunch of broad sides against the court, you know, that might make them a little bit less inclined to give him any benefit of the doubt. So that seems important in terms of the economy. I guess we need to see exactly how it shakes out whether the president is able to, you know, completely

restore the same regime using, you know, cobbling together some other authorities. I don't know.

Yeah. I just don't know enough to know. I mean, my, my guess is it's actually going to be a little harder to do exactly what he's been doing. You know, and so that could have a big, that could have some meaningful economic impact. So I don't know. I think it's, and, you know, I know it is, we are seeing at least some of the conservative injustices, you know, showing us a little bit of mythological consistency, you know, applying rules that seem to be kind of developed for

rating in democratic administrations, applying a true Republican one. So there's something to that. Now, I mean, that I think I already previewed this, but, you know, some of my lefty friends are immediately going to go to, you know, the interests of capital, you know, when over Trump and, you know, right, we'll see. It would be nice to have a review of the president and the kind of the immigration context or something, and we will see if we get one of those, but the end of the

term, right, and a regular Garcia and ARP versus Trump, don't count. But, yeah, I mean, they're, they're muted, right? I mean, they're, they're, they're, they're not nothing, but, no, I, I've heard the version of, yes, the lesson is, you know, you can ask the immigrants all you want, but don't mess with the bond markets, yeah, at least a cook and, you know, I got out of this fair, but I was just trying to think, when is the last time the court ruled against the president on like an executive action that was

this important to him, like obviously, youngstown, and then the question is, "Is building versus Bush? Is anyone student loan so?" I don't think so, not as important. Ah, it's not nearly as important. They covered COVID stuff, but it wasn't bad. Yeah, they probably wanted to list, I guess. Maybe, I mean, they came, obviously, what about the Medicaid expansion and the, for the

Republican act? Yeah, that's a stat, I don't know, there's something more like, I'm tempted to say this is the second coming of Youngstown, but also the part of this freaking thing is that there hasn't been a second coming of Youngstown since Youngstown. Yeah, that's interesting. And that, in a way, that makes it even kind of into climactic, like, you're youngstown, it's like, okay, the president has to follow a big, big, big up, but it's, when the port says no,

the president about something that he really cares about. And he's actually always, always a little

“bit of a miracle. Yeah. Okay, well, I think that's, that's what we got, right? Yeah.”

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