Supreme Court Strikes Down Most of Trump's Tariffs

WASHINGTON (AP) — The Supreme Court struck down President Donald Trump’s far-reaching global tariffs on Friday, handing him a significant loss on an issue crucial to his economic agenda.

The 6-3 decision centers on tariffs imposed under an emergency powers law, including the sweeping “reciprocal” tariffs he levied on nearly every other country.

It’s the first major piece of Trump’s broad agenda to come squarely before the nation’s highest court, which he helped shape with the appointments of three conservative jurists in his first term.

The majority found that the Constitution “very clearly” gives Congress the power to impose taxes, which include tariffs. “The Framers did not vest any part of the taxing power in the Executive Branch,” Chief Justice John Roberts wrote.

Justices Samuel Alito, Clarence Thomas and Brett Kavanaugh dissented.

Read the rest here.

See also: 

The Supreme Court Got It Right on IEEPA—But Don’t Pop the Champagne Yet

What the SCOTUS Tariff Decision Means for Fiscal Policy in Four Charts

Trump’s made tariffs central to his presidency. Chaos may come next

Hawaii’s Shocking Legal Argument Against the Second Amendment

This past Tuesday, the Supreme Court heard oral arguments in Wolford v. Lopez, the Second Amendment case out of Hawaii in which the Aloha State is defying the Constitution and claiming it can ban concealed carry holders from all private property that is open to the public unless they have the explicit permission of the owner. Thus, you can spend a year in jail if you carry a gun that you have a license to carry onto private property that is open to the public such as a mall or a gas station where the owner is completely silent on the issue.

In other words, silence equals prison in Hawaii.

The oral arguments were full of questions, debates, and discussion of the Second Amendment and the Supreme Court’s prior holdings on this very important provision of the Bill of Rights. But what was shocking was the reliance by Hawaii’s lawyer, Neal Katyal, a distinguished Supreme Court advocate, on blatantly bigoted state laws — the infamous Black Codes — to justify Hawaii’s defiance of the Second Amendment rights of its residents.

The Black Codes were some of the first laws passed in the United States to restrict gun ownership — and they were implemented in segregationist states like Louisiana after the end of the Civil War. They had one purpose, and one purpose only: to prevent newly freed black Americans from being able to defend themselves from the threats, assaults, intimidation, and killings perpetrated by the Ku Klux Klan and other white, racist segregationists.

Justice Neil Gorsuch said he was “astonished” that Hawaii would “rely very heavily on an 1865 black code law in Louisiana,” with Katyal seemingly claiming that Hawaii’s law is “a dead ringer and reason alone to affirm the judgment.” Gorsuch said he really wanted “to understand how that could be,” that Hawaii is relying on a racist, historical outlier to support its argument that its law ought to be upheld.

Katyal didn’t seem to want to answer the question, referring to a California law instead, and Gorsuch chided him saying, “Why don’t you answer the question posed? I want to understand how you think black codes should inform this Court’s decision making.” Katyal admitted, “The black codes are undoubtedly a shameful part of our history,” but then made the astounding claim, “That doesn’t at all mean that this particular [Louisiana] law is irrelevant to Second Amendment analysis.”

Gorsuch’s response to Katyal’s rambling explanation of why Hawaii was embracing the racist black codes to try to uphold Hawaii’s firearms restrictions was akin to a vampire embracing garlic. In short, suggesting that such reasoning was unfathomable, inexplicable, and harmful to Hawaii’s argument.

Read the rest here.

Trump v. US: With Great Power Comes Great Immunity

I have no end of uncharitable thoughts about recent American presidents; yet, when I’m cataloging their sins, the words “undue caution” have never sprung to mind. Could it fairly be said of any 21st-century president—George W. Bush, Barack Obama, Donald Trump, or Joe Biden—that his real flaw was being “unduly cautious in the discharge of his official duties”? When it comes to “the most powerful office in the world,” is “undue caution” a problem worth worrying about?

Chief Justice John Roberts insists that it is. In fact, the self-styled judicial “umpire” considers the specter of presidential risk aversion grave enough to justify rewriting the rules of the game. Toward that end, in Trump v. United States, Roberts conjures up a broad suite of criminal-process immunities previously unknown to our Constitution. The new privileges shield the president in the first instance, but they’re really for us—designed to ensure that we Americans will never suffer from an insufficiently energetic executive. Thanks.… I guess?

But if you think greater risks lie in presidential recklessness and contempt for the law, the president’s new immunities may give you pause. Just how much we should worry isn’t clear to me, in part because I’m not sure how much the historically remote threat of criminal prosecution has restrained presidents over the years. But what the Court’s just done definitely isn’t going to help.

I’m certain of this much at least: as a matter of constitutional exegesis, the chief justice’s majority opinion is creative lawyering at its worst. It’s the most flagrant instance of legislating from the bench since Harry Blackmun decamped to the Mayo Clinic medical library to bone up on obstetrics and write trimesters into the Constitution.

Read the rest here.

Cato Institute: The Court Went Too Far on Presidential Immunity

In Trump v. US, a majority of the Supreme Court has laid down an astonishingly broad view of presidential immunity from criminal prosecution over official actions, even those taken for heinous motives and with no show of justification. We should heed the warnings of dissenting Justice Sonia Sotomayor, joined by Elena Kagan and Ketanji Brown Jackson, who charge the majority with concocting an “atextual, ahistorical, and unjustifiable” array of immunities that will too often place above the law a president bent on criminal misuse of his powers of office. 

Nowhere in the Constitution is there mention of executive immunity, which was a topic of peculiar interest to the Founders and Framers. Alexander Hamilton wrote in Federalist 69 that unlike the “king of Great Britain,” the chief executive of the United States would “be liable to prosecution and punishment in the ordinary course of law,” and in Federalist 77 named “subsequent prosecution in the common course of law,” in addition to impeachment, as checks on “abuse of the executive authority.”

Notwithstanding this history, it was probably foreordained that the court would find some degree of presidential immunity. The US Justice Department under administrations of both parties has long taken for granted an immunity of some dimension or other, and the current Department, former President Trump’s adversary here, did not retreat from that view in this case. Although the court had never had to rule on criminal immunity, a 5–4 majority in the 1982 case of Nixon v. Fitzgerald had recognized an immunity from civil claims, such as for wrongful dismissal, over official presidential actions.

However, the Fitzgerald Court explicitly recognized that immunity from criminal prosecution would raise entirely different issues because the public welfare is far more deeply implicated when a president commits a crime than when he may happen to commit, say, a tort.

Read the rest here.

The Supreme Court Ruling

I'm a constitutional conservative and this was a very bad decision with no foundation in originalism. The Founders would be appalled. I expected a finding for some immunity, but that it would be very narrowly defined. The old academic "what if..." someone plants a nuclear bomb in a city and only he knows where it is. He is taking the 5th. Can the POTUS authorize torture? Yes, of course. But that is a much more extreme version of the old debate about whether it's OK to run a red light if you are rushing someone to the hospital with life threatening injuries. Any claim of immunity for a crime should be examined on a case-by-case basis and tested with the question; would failing to break the law result in grave harm to the country or substantial loss of life, and this being so obvious and self-evident that the president might be rightly regarded as derelict in their duty if they failed to act? This decision goes way too far.

Supreme Court Leaves Controversial "Insular Cases" Intact

The Supreme Court on Monday declined to consider whether American Samoans have full U.S. citizenship at birth, a dispute that would have given the justices the opportunity to repudiate past rulings suffused with racist language that helped determine that those in U.S. territories would not have the same rights as other Americans.

A group of American Samoans challenging the current law, in which people from the group of islands in the Pacific Ocean are considered U.S. “nationals” at birth but not citizens, say it is a vestige of racist policies toward territories. They say that the Justice Department, in defending the law, and an appeals court, in upholding it, relied upon the so-called “Insular Cases,” a series of long-criticized early 20th century Supreme Court rulings. The Supreme Court’s decision not to hear the case means the lower court ruling remains in place.

The challenge was brought by three American Samoans who live in Utah: John Fitisemanu, Pale Tuli, and Rosavita Tuli, as well as the Southern Utah Pacific Island Coalition, an advocacy group based in Utah.

“The subordinate, inferior non-citizen National status relegates American Samoans to second-class participation in the Republic," the challengers’ lawyers say in court papers. They note for example, that U.S. nationals cannot run for president or serve in Congress. If living in a state, they cannot vote and are barred from certain occupations.

U.S. nationals can live and work anywhere within the United States and can travel under a U.S. passport, although the challengers’ lawyers note that their passports include a statement saying “NOT A UNITED STATES CITIZEN,” which they say carries a stigma. U.S. nationals can apply for full U.S. citizenship via an expedited process.

American Samoa, with a population of around 50,000, is one of five U.S. territories, the others being Puerto Rico, Guam, the Virgin Islands and the Norther Mariana Islands. Puerto Rico, with about 3 million residents, is by the far the largest by population.

American Samoa is the only territory to which Congress has not extended birthright citizenship. No residents of territories can vote in presidential elections or elect voting members to Congress.

The Insular Cases were a series of rulings issued in the 1900s soon after the United States had acquired Puerto Rico and other territories in which the court said people in those jurisdictions did not have all the same constitutional rights as those living in the mainland.

Read the rest here.

Roe v Wade Reversed

Though not unexpected, it is still the most significant SCOTUS decision in a generation. The vote was 5:3 with Justice Roberts concurring in part. 

SCOTUS Strikes Down Restrictive New York Gun Law

Private citizens have a constitutional right to carry firearms outside their home for personal protection and states may not refuse permission to do so without good cause. The ruling was 6-3.

Read the decision here.

Leaked Draft Indicates Roe v Wade Will be Reversed

The Supreme Court has voted to strike down the landmark Roe v. Wade decision, according to an initial draft majority opinion written by Justice Samuel Alito circulated inside the court and obtained by POLITICO.

The draft opinion is a full-throated, unflinching repudiation of the 1973 decision which guaranteed federal constitutional protections of abortion rights and a subsequent 1992 decision – Planned Parenthood v. Casey – that largely maintained the right. “Roe was egregiously wrong from the start,” Alito writes.

“We hold that Roe and Casey must be overruled,” he writes in the document, labeled as the “Opinion of the Court.” “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”

Deliberations on controversial cases have in the past been fluid. Justices can and sometimes do change their votes as draft opinions circulate and major decisions can be subject to multiple drafts and vote-trading, sometimes until just days before a decision is unveiled. The court’s holding will not be final until it is published, likely in the next two months.

The immediate impact of the ruling as drafted in February would be to end a half-century guarantee of federal constitutional protection of abortion rights and allow each state to decide whether to restrict or ban abortion. It’s unclear if there have been subsequent changes to the draft.

No draft decision in the modern history of the court has been disclosed publicly while a case was still pending. The unprecedented revelation is bound to intensify the debate over what was already the most controversial case on the docket this term.

The draft opinion offers an extraordinary window into the justices’ deliberations in one of the most consequential cases before the court in the last five decades. Some court-watchers predicted that the conservative majority would slice away at abortion rights without flatly overturning a 49-year-old precedent. The draft shows that the court is looking to reject Roe’s logic and legal protections.

Read the rest here.

Obviously this is not a final opinion. But I have no reason to believe it is not authentic. POLITICO is a highly reputable news site and this must be acknowledged as one of the great "scoops" in the history of journalism.

Glory to God!

Roe v Wade is on life support

Arguments today before the Supreme Court strongly suggest a majority (probably 5) of the justices are ready to reverse Roe. Chief Justice Roberts hinted at the possibility of severely curbing Roe while in theory leaving some part of it intact. He was probably thinking about limiting abortion rights to the first trimester. But it didn't sound like the other five conservative justices were interested. Seeing the writing on the wall, the three progressive justices were basically left to mourn the imminent demise of murder on demand as a judicially invented constitutional right.

In 5:4 Ruling The Supreme Court Signals Roe v Wade's End May be Near

It's shortly after midnight on the east coast and the Supreme Court just broke its silence on the Texas abortion law that prohibits almost all abortions after the first six weeks of pregnancy with no exceptions outside of a threat to the mother's life. In a 5/4 decision the court has declined to block enforcement of the new law. Given that the law flatly violates the 1973 decision Roe v Wade, by which the court amended the US Constitution to establish an unrestricted right to abortion during the first two trimesters of pregnancy, it's hard not to see this as a strong signal that there are now five justices ready to reverse, or at least severely narrow Roe.

Deo volente.

Supreme Court Backs Catholic Foster Care Agency in Gay Rights Case

WASHINGTON (AP) — The Supreme Court on Thursday unanimously sided with a Catholic foster care agency that says its religious views prevent it from working with same-sex couples as foster parents. The justices said the city of Philadelphia wrongly limited its relationship with the group as a result of the agency’s policy.

Philadelphia violated the Constitution in limiting its work with the agency, Catholic Social Services, the court said.

“The refusal of Philadelphia to contract with CSS for the provision of foster care services unless it agrees to certify same-sex couples as foster parents cannot survive strict scrutiny, and violates the First Amendment,” Chief Justice John Roberts wrote.

Roberts said that the group “seeks only an accommodation that will allow it to continue serving the children of Philadelphia in a manner consistent with its religious beliefs; it does not seek to impose those beliefs on anyone else.”

Catholic Social Services is affiliated with the Archdiocese of Philadelphia.

Read the rest here.

FTR I fully expected the court to back the Catholic Church. I did not expect the decision to be unanimous. It may be worth noting that there have been quite a few unanimous, or nearly so, decisions coming out of the court of late. I suspect the justices may be sending a subtle message to those talkig about court packing. 

Supreme Court to Review Roe v Wade

With the current composition of the court, I figured this was coming. Fasten your seat belts folks. Things are about to get crazy. 

Details

Non-Commuting 'Remote' Workers and Taxes

Ok; you live in tax friendly New Hampshire, but commute to work in Boston, which is in a very tax unfriendly state. Massachusetts generally taxes all income derived from within their state. In fairness, they are not alone here. It's a fairly common practice. But along comes Covid 19 and suddenly your employer orders you and around 90% of the other employees to work from home, in your case that being New Hampshire. So who do you owe taxes to? Massachusetts says you still owe them the money because that's where your employer is based. New Hampshire begs to differ. 

Enter at least eleven states and the United States Supreme Court.

Details.

Supreme Court judges say Obergefell a 'problem' for religious liberty

Justices Clarence Thomas and Samuel Alito on Monday said that the Supreme Court’s Obergefell ruling is already posing problems for religious freedom.

“By choosing to privilege a novel constitutional right [to same-sex marriage] over the religious liberty interests explicitly protected in the First Amendment, and by doing so undemocratically, the Court has created a problem that only it can fix,” the justices wrote in an opinion published Monday. 

“Until then, Obergefell will continue to have ‘ruinous consequences for religious liberty,’” they warned. 

In their opinion, which accompanied the Court’s denial of a writ of certiorari in the case Davis v. Ermold, Thomas and Alito said that the 2015 landmark decision pitted same-sex marrriage against religious liberty.

In the case of former county clerk Kim Davis of Kentucky, who in 2015 made headlines for refusing to issue marriage licenses to same-sex couples, Thomas and Alito joined the court in denying her petition for a writ of certiorari, or a review of her case, on the first day of the court’s fall term.

Davis was sued for not issuing marriage licenses after the Obergefell ruling declared a right to same-sex marriage. The Sixth Circuit appeals court in 2019 ruled that she was not protected from qualified immunity, and thus could be held personally liable for infringing on the constitutional rights to marriage of same-sex couples.

In a statement accompanying the denial of certiorari, Alito and Thomas said Davis’ petition “does not cleanly present” the issues at hand in the Obergefell ruling. However, they sharply criticized the 2015 ruling for posing serious and unnecessary challenges to those religiously believing marriage is between one man and one woman.

Read the rest here. 

HT: Dr. Tighe

And so it begins

Barrett tied to faith group ex-members say subjugates women
HT: Brian

Court Packing: A few quick thoughts

This is getting interesting. The Democrats, realizing they may not be able to stop the GOP from filling Ginsburg's seat have trotted out the threat to pack the court by adding seats, presumably at least four. A few quick thoughts...

* Mitch McConnell is the smoothest political operator to head the Senate since Lyndon Johnson in the 1950s. If he is moving to fill the vacancy he has probably judged the risk of court packing in retaliation to be low.

* For the Democrats to pack the court they need Biden to win the general election and probably more than the razor thin majority they are looking at in a best case scenario in the Senate.

* By my count there are around six GOP senators who are in tight races this year. The GOP currently has a majority of three. If the Democrats run the board they would essentially flip that and hold a majority of three. Except that the Democrats are all but certain to loose a seat in Alabama. So that means their best case is now a majority of two.

* Expanding the SCOTUS is a matter of law, so it is in theory subject to the filibuster. But that has been on life support ever since Harry Reid ended it to allow Obama to appoint lower court judges that the Republicans were blocking. Mitch further rolled back the filibuster to get Trump's two SCOTUS nominees through. So there is no reason to believe the Democrats won't end what's left of it. But...

* They would not be able to change the SCOTUS if they lost three votes. (A 50/50 tie would likely be broken by a Vice President Harris in their favor.)  The Democrats are not as ideologically homogeneous as the GOP. Which is to say they have a few fairly centrist senators. It is not at all certain every Democrat would vote for such a radical act that would inevitably be countered the next time the GOP regained the levers of power in DC.

* The Democrats may be playing into Trump's hands. They are dangerously close to making the election a referendum on whether or not to pack the Supreme Court instead of a vote of no confidence in Donald Trump. That is not likely to be a winner for them. I can see Trump's campaign slogan now; "A vote for a Democrat is a vote to pack the Supreme Court."

The bottom line is that if the GOP wants to fill the seat before the end of the year, they might be able to do it and the risks of retaliation may be lower than some want to believe. The main obstacle is that the GOP, with a majority of three, cannot afford to lose four votes.  And they have probably already lost one vote from Alaska. 

The GOP is all but certain to lose seats in Arizona and Maine where the incumbents are behind by margins that do not appear to be surmountable. McSally in AZ, who appears to be electoral toast, is a strong Trump supporter and with nothing to lose is unlikely to vote against a nominee. Susan Collins of ME is also on her way out, but she is the last New England moderate Republican in the Senate. Her vote is dicey at best. The other Senate races are tight enough that my guess is no sitting GOP Senator hoping to be re-elected will risk ticking off Trump's base. One further complication is a quirk of law in Arizona. Barring a miracle the Democrats will win that seat, and under state law the new Senator elect can take office as early as November 30. If the new justice has not already been confirmed that will cut the GOP's margin down by a vote. 

So yeah, this is going to be damned close.

But if someone put a gun to my head and said "place your bet," I'd put my money on the turtle. Where most folks go to bed at night counting sheep, Mitch McConnell nods off counting votes and reciting long memorized arcane parliamentary rules of procedure. If something is doable in the Senate, and Mitch wants it done, I would take a very very deep breath before betting against him.

Supreme Court Historical Trivia: Dying in office

With the passing of Justice Ginsburg there has been much discussion about her refusal to resign, presumably in an effort to deny President Trump the opportunity to appoint her successor. And it has been noted that since 1953 Ginsburg is just the fourth Supreme Court justice to die on the bench. The others being Justice Scalia in 2016, Chief Justice Rehnquist in 2005, and Justice Robert Jackson all the way back in 1954.

But a look at the history of the court suggests retirement as the norm for justices is fairly new. Prior to the 1950s and especially in the 19th century, it was extremely common, arguably normative, for justices to remain on the job for life. To date there have been 114 Justices of the Supreme Court. What follows is a list of the 52 who died in office in the order they were appointed to the high court.

William Cushing

James Wilson

James Iredell

William Paterson

John Rutledge

Samuel Chase

Bushrod Washington

John Marshall

William Johnson

Henry Brockholst Livingston

Thomas Todd

Joseph Story

Smith Thompson

Robert Trimble

John McLean

Henry Baldwin

James Moore Wayne

Roger B. Taney

Philip Pendleton Barbour

John Catron

John McKinley

Peter Vivian Daniel

Levi Woodbury

Nathan Clifford

Samuel Freeman Miller

Salmon P. Chase

Joseph P. Bradley

Morrison Waite

John Marshall Harlan

William Burnham Woods

Stanley Matthews

Horace Gray

Samuel Blatchford

Lucius Quintus
Cincinnatus Lamar II

Melville Fuller

David Josiah Brewer

Howell Edmunds Jackson

Rufus W. Peckham

Horace Harmon Lurton

Edward Douglass White

Joseph Rucker Lamar

Pierce Butler

Edward Terry Sanford

Benjamin N. Cardozo

Frank Murphy

Harlan F. Stone

Robert H. Jackson

Wiley Blount Rutledge

Fred M. Vinson

William Rehnquist

Antonin Scalia

Ruth Bader Ginsburg

Justice Ginsburg has died

Prayers for her family and the country. 

This election just got even more serious. I don't think Trump/McConnell have the votes to ram a nominee through the Senate before the election. Too many GOP Senators are fighting for their political lives. If Trump is reelected then obviously he will have an uncontroversial right to nominate Ginsburg's replacement. But things could get very ugly if he loses and Trump tries to push through a nominee before the next president takes office and the next Senate is seated. That kind of bare knuckled power play would likely provoke the Democrats, assuming they have a majority in the new Senate, to pack the court in retaliation. 

It's far too soon to get a handle on how this is going to play out. But one possible scenario is the GOP and the Democrats may cut a deal along the following lines... no new nominee until after the next inauguration in exchange for a pledge from Democrats not to pack the court if they win both the presidency and the Senate. Unfortunately the political atmosphere, both in DC and the country more broadly, is so acrimonious right now that I am not sure there is a sufficient level of trust to cut a deal of that magnitude. There will be heavy pressure from the far wings of both parties to stake out extreme positions. 

If this isn't handled right, we could be on the cusp of a serious constitutional crisis. 

Unanimous Supreme Court rebukes 9th Circuit on immigration law

The Supreme Court is often divided on ideological lines on hot-button issues, and tends to write unanimously when dealing with procedural questions where a lower court just went off the rails. So, when the Court takes a unanimous stand in a case involving a controversial political issue and goes out of its way to dress down the lower-court judges, you know they really went overboard. That’s what happened this morning in an immigration case, United States v. Sineneng-Smith. Justice Ginsburg herself delivered the lecture to the Ninth Circuit to knock off the antics and stick to the cases before it.

The Sineneng-Smith case involved an immigration consultant who made $3.3 million from clients (mostly Philippine immigrants) by filing applications for lawful permanent residence when she knew they were not legally entitled to that status. There were two potential victims here: the immigrants, if they paid for something they were never going to receive, or the government, if it approved illegal applications. Sieneneng-Smith tried to make herself more sympathetic by arguing that she was only scamming the immigration system: She “argued that labor-certification applications were often approved despite expiration of the statutory dispensation, and that an approved application, when submitted as part of a petition for adjustment of status, would place her clients in line should Congress reactivate the dispensation.” Neither of these was an argument that her clients had any legal leg to stand on, just hope that they might get away with it.

Sineneng-Smith argued that she had a First Amendment right to file bogus applications, under the Petition and Free Speech Clauses. When her appeal reached the Ninth Circuit, however, it landed before notorious liberal activist judge Stephen Reinhardt (who died after the case was argued, and has since been the subject of other controversies), on a three-judge panel with two Clinton appointees, judges Marsha Berzon and Wallace Tashima. Instead of hearing the arguments Sineneng-Smith made against her conviction, the judges thought up their own argument — that the federal statute against “encourag[ing] or induc[ing] an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law” is itself overbroad and should be thrown out in its entirety.

Read the rest here.