Seven opinions. One hundred and seventy pages. Six justices agree the tariffs are unlawful — but they can't agree on why, and the reason matters for every future case where the executive claims sweeping power from an old statute. In Part 2, we walk through all seven opinions in Learning Resources v. Trump. Roberts applies the major questions doctrine for the first time against a Republican president — but only three justices sign on. Barrett writes to say the doctrine is just textualism done right. Gorsuch writes a Festivus concurrence going after every other justice on the Court. Kagan says she doesn't need the doctrine at all. Kavanaugh — who helped build the major questions doctrine — abandons it. And Thomas stakes out a solo position on nondelegation that could resurface for years. This is the clearest map yet of where every justice stands on the most contested question in administrative law.
00:00:14 --> 00:00:17 Hello, and welcome to Administrative Remedies,
00:00:17 --> 00:00:19 because you can't fix what you don't understand.
00:00:19 --> 00:00:21 Brought to you in part by the University of Tulsa
00:00:21 --> 00:00:24 College of Law. I'm Gwendolyn Savitz, an associate
00:00:24 --> 00:00:26 professor here at TU and the associate dean of
00:00:26 --> 00:00:28 research and intellectual life. And I'm Mark
00:00:28 --> 00:00:31 Rourke. I'm the dean of the College of Law. We'll
00:00:31 --> 00:00:33 be breaking down complex doctrines with real
00:00:33 --> 00:00:35 -life analogies and examples to demystify the
00:00:35 --> 00:00:37 world of administrative law for everyone trying
00:00:37 --> 00:00:39 to understand how government actually works.
00:00:40 --> 00:00:41 Agencies are the main way the federal government
00:00:41 --> 00:00:44 gets things done. It's not through Congress for
00:00:44 --> 00:00:46 reasons we'll be addressing over the course of
00:00:46 --> 00:00:49 this series. Welcome back to the second episode
00:00:49 --> 00:00:52 on Learning Resources v. Trump. Last episode,
00:00:52 --> 00:00:55 we explained what the court held in the case,
00:00:55 --> 00:00:58 that six justices agreed IEPA doesn't authorize
00:00:58 --> 00:01:01 tariffs. We went through the textual analysis,
00:01:01 --> 00:01:04 which all the justices agreed was clear. This
00:01:04 --> 00:01:07 episode, we're going beyond that because this
00:01:07 --> 00:01:10 case produced... Seven separate opinions that
00:01:10 --> 00:01:13 totaled 170 pages. And the disagreement isn't
00:01:13 --> 00:01:15 about whether the tariffs are lawful. Again,
00:01:15 --> 00:01:18 six justices say they're not. The disagreement
00:01:18 --> 00:01:21 is about why. So to explain why that matters,
00:01:21 --> 00:01:24 I want to try a simple comparison. I'm just going
00:01:24 --> 00:01:27 to throw a guess out here, but we have a new
00:01:27 --> 00:01:29 analogy we're bringing into the fold. Excellent
00:01:29 --> 00:01:31 guess. All right. We have six doctors. They all
00:01:31 --> 00:01:33 agree a patient shouldn't have surgery. It's
00:01:33 --> 00:01:36 the same conclusion. But when you read their
00:01:36 --> 00:01:38 charts, you realize they've got there for completely
00:01:38 --> 00:01:40 different reasons. Some think the diagnosis is
00:01:40 --> 00:01:43 wrong. Some think the surgery is too risky. Some
00:01:43 --> 00:01:45 think medication would work better. It would
00:01:45 --> 00:01:48 matter which reason wins, right? Because it determines
00:01:48 --> 00:01:51 what happens with the next patient. If the reason
00:01:51 --> 00:01:54 is this diagnosis is wrong, future patients who
00:01:54 --> 00:01:57 do have the condition might still get the surgery.
00:01:57 --> 00:02:01 And that's what's happening in this case. Yeah.
00:02:01 --> 00:02:03 Here, six justices say the tariffs are unlawful,
00:02:04 --> 00:02:06 but their reasoning splits into at least three
00:02:06 --> 00:02:09 camps. And the camp that wins determines how
00:02:09 --> 00:02:11 the court handles the next time a president claims
00:02:11 --> 00:02:14 sweeping power from an old, vaguely worded statute.
00:02:14 --> 00:02:17 Which brings us back to the major questions doctrine.
00:02:17 --> 00:02:20 It does. Why don't you give a quick run through
00:02:20 --> 00:02:22 for anyone who missed it? Okay. If you recall
00:02:22 --> 00:02:26 back in season one, episodes 10 and 11, we talked
00:02:26 --> 00:02:28 about the major questions doctrine. And the basic
00:02:28 --> 00:02:31 idea was that when the executive claims a really
00:02:31 --> 00:02:34 big power, economically massive, politically
00:02:34 --> 00:02:37 controversial, historically unprecedented, courts
00:02:37 --> 00:02:40 don't just ask whether the statutory text could
00:02:40 --> 00:02:43 technically support it. They ask whether Congress
00:02:43 --> 00:02:46 clearly intended to delegate that kind of authority.
00:02:47 --> 00:02:50 And in those episodes, we identified a split
00:02:50 --> 00:02:53 within the court. There's a strong version, which
00:02:53 --> 00:02:57 treats the doctrine as a freestanding rule. Extraordinary
00:02:57 --> 00:03:00 power requires near explicit authorization and
00:03:00 --> 00:03:02 ambiguity alone resolves the case against the
00:03:02 --> 00:03:05 government. And then there's a weak version,
00:03:05 --> 00:03:08 which says this is just careful textualism, reading
00:03:08 --> 00:03:12 statutory language in context, including constitutional
00:03:12 --> 00:03:14 structure and common sense about how Congress
00:03:14 --> 00:03:18 delegates its authority. Yes. And we said that
00:03:18 --> 00:03:19 the court still hadn't resolved which version
00:03:19 --> 00:03:22 was actually the law. And that's still true.
00:03:22 --> 00:03:25 That's where we get to seven opinions and 170
00:03:25 --> 00:03:30 pages. So just to be really clear about the structure
00:03:30 --> 00:03:32 of the opinion, Chief Justice Roberts wrote the
00:03:32 --> 00:03:36 entire majority opinion, but not all parts commanded
00:03:36 --> 00:03:40 a majority. The textual analysis that we went
00:03:40 --> 00:03:42 through last time, that is the actual official
00:03:42 --> 00:03:44 opinion of the court. That's the one that six
00:03:44 --> 00:03:47 justices signed onto. But there are also parts
00:03:47 --> 00:03:49 of his opinion that are joined only by Gorsuch
00:03:49 --> 00:03:52 and Barrett. That's three justices, a plurality.
00:03:52 --> 00:03:56 It is not finding precedent. So the major questions
00:03:56 --> 00:03:59 doctrine analysis isn't the holding of the case.
00:03:59 --> 00:04:01 Yes, correct. Lower courts will probably pay
00:04:01 --> 00:04:04 attention to it, but it's not the opinion of
00:04:04 --> 00:04:06 the court. And this is a really important distinction
00:04:06 --> 00:04:08 that I think a lot of the commentary is already
00:04:08 --> 00:04:11 missing. People are calling this the major questions
00:04:11 --> 00:04:14 case. It's not. It's a textual interpretation
00:04:14 --> 00:04:17 case where three justices would have also applied
00:04:17 --> 00:04:19 the major questions doctrine. And that alone
00:04:19 --> 00:04:22 is important, but we'll get there. OK, so what
00:04:22 --> 00:04:24 does the plurality then say? All right. Roberts
00:04:24 --> 00:04:27 runs through the familiar major questions doctrine
00:04:27 --> 00:04:30 factors. Is there. a great deal of economic and
00:04:30 --> 00:04:33 political significance, and says that the government
00:04:33 --> 00:04:35 itself pointed to projections that the tariffs
00:04:35 --> 00:04:38 would reduce the deficit by $4 trillion and that
00:04:38 --> 00:04:40 agreements reached in reliance on the tariffs
00:04:40 --> 00:04:44 could be worth $15 trillion. Roberts observes
00:04:44 --> 00:04:47 that those stakes dwarf those of other major
00:04:47 --> 00:04:50 questions cases. The student loan forgiveness
00:04:50 --> 00:04:54 case was a mere $430 billion, and it was just
00:04:54 --> 00:04:56 $50 billion in rental protections. So this is
00:04:56 --> 00:05:00 a different order of magnitude. And then another
00:05:00 --> 00:05:02 factor is whether this is a novel exercise of
00:05:02 --> 00:05:05 old authority. Read what he said about that.
00:05:05 --> 00:05:08 It's also telling that in IEPA's half century
00:05:08 --> 00:05:11 of existence, no president has invoked the statute
00:05:11 --> 00:05:14 to impose any tariffs, let alone tariffs of this
00:05:14 --> 00:05:17 magnitude and scope. Presidents have, by contrast,
00:05:17 --> 00:05:20 regularly invoked IEPA for other purposes. At
00:05:20 --> 00:05:23 the same time, they have invoked other statutes,
00:05:23 --> 00:05:26 but never IEPA to impose tariffs. The lack of
00:05:26 --> 00:05:29 historical precedent for IEPA tariffs, coupled
00:05:29 --> 00:05:31 with the breadth of authority that the president
00:05:31 --> 00:05:33 now claims, is a telling indication that the
00:05:33 --> 00:05:36 tariffs extend beyond the president's legitimate
00:05:36 --> 00:05:40 reach. So no president has ever read IEPA this
00:05:40 --> 00:05:43 way. They used IEPA for sanctions. They used
00:05:43 --> 00:05:45 other statutes for tariffs. And Roberts looks
00:05:45 --> 00:05:48 at Congress's pattern of delegating tariff authority.
00:05:48 --> 00:05:50 which is always done with explicit language,
00:05:50 --> 00:05:54 with limit caps, with time limits, with procedural
00:05:54 --> 00:05:56 requirements, and contrast that with AEPA, which
00:05:56 --> 00:05:58 has none of those safeguards. The government
00:05:58 --> 00:06:02 tried two escape routes, right? Yes. First, they
00:06:02 --> 00:06:04 argued that the major questions doctrine shouldn't
00:06:04 --> 00:06:06 apply in emergency situations. And Robert said
00:06:06 --> 00:06:08 the court had already rejected that in Biden
00:06:08 --> 00:06:11 v. Nebraska. And he adds a line from a 1950 concurrence
00:06:11 --> 00:06:14 that emergency powers tend to kindle emergencies.
00:06:15 --> 00:06:17 Next, the government tried to argue that the
00:06:17 --> 00:06:19 president has broad authority over foreign affairs
00:06:19 --> 00:06:21 and the major questions doctrine should be relaxed
00:06:21 --> 00:06:24 in that context. Roberts says the framers gave
00:06:24 --> 00:06:27 Congress alone the terror of power, notwithstanding
00:06:27 --> 00:06:29 the obvious foreign affairs implications. So
00:06:29 --> 00:06:31 there's no reason Congress would be more willing
00:06:31 --> 00:06:34 to surrender that power just because trade involves
00:06:34 --> 00:06:37 other countries. So there is no major questions
00:06:37 --> 00:06:40 exception to the major questions doctrine is
00:06:40 --> 00:06:43 what Roberts is saying. The court goes through
00:06:43 --> 00:06:46 everything that it did in West Virginia and Biden
00:06:46 --> 00:06:48 v. Nebraska and applies it for the first time
00:06:48 --> 00:06:51 against a Republican president. And it does so
00:06:51 --> 00:06:53 in a case involving foreign affairs and national
00:06:53 --> 00:06:56 security. If you're someone who has been defending
00:06:56 --> 00:06:59 the major questions doctrine, this opinion validates
00:06:59 --> 00:07:02 that it is a genuinely neutral principle, not
00:07:02 --> 00:07:04 a tool just for striking down Democratic regulation.
00:07:04 --> 00:07:07 It is a structural constraint on executive overreach
00:07:07 --> 00:07:10 regardless of party. But only three justices
00:07:10 --> 00:07:13 signed on to that. part of the opinion. Exactly.
00:07:13 --> 00:07:15 And even those three don't totally agree what
00:07:15 --> 00:07:18 it is. Okay. When we look at the composition
00:07:18 --> 00:07:21 of the court on this case, Barrett joined the
00:07:21 --> 00:07:24 Probert's plurality, but she's only one of three.
00:07:24 --> 00:07:27 Yes. So she joined all of it, but then she wrote
00:07:27 --> 00:07:30 separately to address what she viewed as a fundamental
00:07:30 --> 00:07:32 disagreement with Gorsuch about what the major
00:07:32 --> 00:07:35 questions doctrine actually is. And this is where
00:07:35 --> 00:07:38 that weak versus strong framework matters. Barrett
00:07:38 --> 00:07:40 is the weak version. Yes. Her position is that
00:07:40 --> 00:07:43 the major questions doctrine is just textualism
00:07:43 --> 00:07:45 done right. When you read a statute, you read
00:07:45 --> 00:07:48 it in context. That context includes the structure
00:07:48 --> 00:07:50 of the Constitution, which bests all legislative
00:07:50 --> 00:07:52 powers in Congress. A reasonable interpreter
00:07:52 --> 00:07:54 would expect Congress to make the big decisions
00:07:54 --> 00:07:57 itself. So when ambiguous language is claimed
00:07:57 --> 00:07:59 to authorize extraordinary power, you're skeptical.
00:08:00 --> 00:08:02 Not because of a special doctrine, but because
00:08:02 --> 00:08:04 of what the words most naturally mean in their
00:08:04 --> 00:08:07 constitutional setting. So for Barrett, the text
00:08:07 --> 00:08:09 just doesn't support the government's claim and
00:08:09 --> 00:08:11 the constitutional backdrop is a part of why
00:08:11 --> 00:08:14 it doesn't. Right. So read her key passage here.
00:08:14 --> 00:08:17 So Justice Barrett wrote, to the extent that
00:08:17 --> 00:08:20 Justice Gorsuch also thinks the background legal
00:08:20 --> 00:08:23 conventions and constitutional structure inform
00:08:23 --> 00:08:26 the most natural reading of a statute, then we
00:08:26 --> 00:08:29 may not be very far apart. Our only disagreement
00:08:29 --> 00:08:32 may be over the level of clarity required before
00:08:32 --> 00:08:35 a particular interpretation can be deemed the
00:08:35 --> 00:08:38 most natural one. I understand Justice Gorsuch
00:08:38 --> 00:08:41 to require Congress always to speak precisely
00:08:41 --> 00:08:44 to any major power that it intends to give away.
00:08:44 --> 00:08:47 As I've said before, I think the other less obvious
00:08:47 --> 00:08:50 clues can do the trick. So Barrett doesn't need
00:08:50 --> 00:08:53 Congress to use magic words. She just needs the
00:08:53 --> 00:08:55 best reading of the statute, all things considered,
00:08:55 --> 00:08:58 to support the government's claim. And here it
00:08:58 --> 00:09:01 doesn't. But she's worried about what happens
00:09:01 --> 00:09:03 when Gorsuch's approach meets a statute where
00:09:03 --> 00:09:06 Congress really did delegate broad power and
00:09:06 --> 00:09:09 really did intend it. And under his strong form
00:09:09 --> 00:09:11 of the rule, a court might override that congressional
00:09:11 --> 00:09:13 intent just because the delegation wasn't explicit
00:09:13 --> 00:09:17 enough. So Justice Barrett really is a realist
00:09:17 --> 00:09:19 in this sense, right? She's looking to what was
00:09:19 --> 00:09:24 realistically expected by Congress when it was
00:09:24 --> 00:09:28 was. deploying its legislation, regardless of
00:09:28 --> 00:09:31 whether it used the same language over and over
00:09:31 --> 00:09:34 and over again. And she gets pretty pointed about
00:09:34 --> 00:09:37 that. Yeah, she does. She says that if the major
00:09:37 --> 00:09:39 questions doctrine becomes the strong form version,
00:09:40 --> 00:09:43 and by that she means a rule that instructs judges
00:09:43 --> 00:09:46 to adopt an inferior but tenable reading, it
00:09:46 --> 00:09:49 would veer beyond interpretation and into policymaking.
00:09:49 --> 00:09:53 And then she quotes Scalia at him, saying, Can
00:09:53 --> 00:09:55 we really just decree that we will interpret
00:09:55 --> 00:09:57 the laws that Congress passes to mean less or
00:09:57 --> 00:10:00 more than what they fairly say? That's a sitting
00:10:00 --> 00:10:02 justice quoting Scalia against a fellow conservative's
00:10:02 --> 00:10:05 version of a doctrine that conservatives have
00:10:05 --> 00:10:08 developed. Yes. This isn't a left -right debate.
00:10:08 --> 00:10:10 It's a methodological debate within the conservatives.
00:10:11 --> 00:10:13 Barrett and Gorsuch agree on the result in this
00:10:13 --> 00:10:16 case. They've agreed on the result in every major
00:10:16 --> 00:10:18 questions decision that they've dealt with so
00:10:18 --> 00:10:21 far. But they disagree about the debate. very
00:10:21 --> 00:10:23 nature of what they're doing. And that disagreement
00:10:23 --> 00:10:26 will matter enormously when a case comes along
00:10:26 --> 00:10:29 where the text is closer. OK, so if Barrett is
00:10:29 --> 00:10:32 the weak version, then Gorsuch is... Oh, most
00:10:32 --> 00:10:35 emphatically the strong version. And his concurrence
00:10:35 --> 00:10:37 is doing two things. In the first part, he's
00:10:37 --> 00:10:40 trying to build a historical foundation for the
00:10:40 --> 00:10:42 major questions doctrine. He's trying to argue
00:10:42 --> 00:10:44 that it's really a freestanding constitutional
00:10:44 --> 00:10:47 principle. And... Once he does that, he goes
00:10:47 --> 00:10:49 after essentially every other justice on the
00:10:49 --> 00:10:52 court. Advisory opinions call this a Festivus
00:10:52 --> 00:10:55 concurrence, which is really great because it
00:10:55 --> 00:10:57 really is his airing of grievances with everyone
00:10:57 --> 00:10:59 who doesn't share his view, which seems to be
00:10:59 --> 00:11:02 everyone except potentially the chief. OK, let's
00:11:02 --> 00:11:05 start with his affirmative case. He's trying
00:11:05 --> 00:11:07 to prove that the major questions doctrine isn't
00:11:07 --> 00:11:09 a recent invention, despite only having been
00:11:09 --> 00:11:12 explicitly used in cases starting in the Biden
00:11:12 --> 00:11:15 administration. He traces it from English corporate
00:11:15 --> 00:11:18 law in the 1700s through early American cases
00:11:18 --> 00:11:20 about municipal charters and railroad commissions.
00:11:21 --> 00:11:23 His claim is that whenever someone exercises
00:11:23 --> 00:11:26 delegated authority, the same principle applies.
00:11:26 --> 00:11:28 Ordinary powers come with a grant. Extraordinary
00:11:28 --> 00:11:31 powers require a clear statement. So Gorsuch
00:11:31 --> 00:11:34 is doing exactly what I want my students to do
00:11:34 --> 00:11:37 on my exams, is be able to connect the pieces
00:11:37 --> 00:11:40 across different materials. But the major questions
00:11:40 --> 00:11:43 doctrine isn't a canon of statutory interpretation.
00:11:44 --> 00:11:46 Yes. For him, it is a constitutional safeguard
00:11:46 --> 00:11:49 with centuries of pedigree. So the practical
00:11:49 --> 00:11:53 consequence is pretty stark here. Anytime the
00:11:53 --> 00:11:55 executive claims a major new power, ambiguity
00:11:55 --> 00:11:59 results against the government, period. You don't
00:11:59 --> 00:12:00 weigh the ambiguity and pick the most natural
00:12:00 --> 00:12:03 reading. The ambiguity itself is the answer.
00:12:04 --> 00:12:07 OK, that's the foundation. Now, what does he
00:12:07 --> 00:12:10 do with everyone else? So he has three fronts.
00:12:11 --> 00:12:14 In one part, he goes after the liberal justices.
00:12:14 --> 00:12:17 He walks through their dissents in every prior
00:12:17 --> 00:12:19 major questions doctrine case and essentially
00:12:19 --> 00:12:23 says, you read broad statutory language expansively
00:12:23 --> 00:12:25 when agencies you liked were claiming power,
00:12:25 --> 00:12:27 but now you read it even narrowly when it's this
00:12:27 --> 00:12:30 president. So he goes case by case to prove his
00:12:30 --> 00:12:34 point. Yes, case by case. So in NFIB, the vaccine
00:12:34 --> 00:12:37 mandate, Kagan and Sotomayor read safe and healthful
00:12:37 --> 00:12:39 working conditions as broad enough to cover a
00:12:39 --> 00:12:42 mandate for 84 million people. In the eviction
00:12:42 --> 00:12:45 moratorium case, they read. necessary to prevent
00:12:45 --> 00:12:47 the transmission of communicable diseases to
00:12:47 --> 00:12:50 be broad enough to regulate landlord -tenant
00:12:50 --> 00:12:52 relationships nationwide. And in West Virginia,
00:12:53 --> 00:12:56 the best system of emission reduction was broad
00:12:56 --> 00:12:59 enough to transform the electricity grid. So
00:12:59 --> 00:13:02 then finally, in Biden v. Nebraska, waiver modify
00:13:02 --> 00:13:06 covered $430 billion in student debt cancellation.
00:13:07 --> 00:13:09 Every time they stressed the expansive language
00:13:09 --> 00:13:13 and the scope of the crisis. And with IEPA. So
00:13:13 --> 00:13:16 regulate importation during a declared national
00:13:16 --> 00:13:19 emergency that the president is personally tasked
00:13:19 --> 00:13:23 with responding to. And a statute where IEPA
00:13:23 --> 00:13:25 even authorizes greater restrictions. The president
00:13:25 --> 00:13:28 can prohibit imports entirely. So these were
00:13:28 --> 00:13:30 exactly the kinds of arguments he says that the
00:13:30 --> 00:13:33 liberal justices made in every prior case. He
00:13:33 --> 00:13:35 asked if the logic worked there, why doesn't
00:13:35 --> 00:13:38 it work here? And his answer is that they're
00:13:38 --> 00:13:40 applying the major questions doctrine without
00:13:40 --> 00:13:43 admitting it. Yes, he maps each of their arguments
00:13:43 --> 00:13:48 onto a major questions doctrine factor. The extraordinary
00:13:48 --> 00:13:52 power, the unheralded claim, separation of power
00:13:52 --> 00:13:55 skepticism, and says they borrowed the entire
00:13:55 --> 00:13:57 framework of the major questions doctrine. They're
00:13:57 --> 00:14:00 just refusing to call it that. Okay, so that's
00:14:00 --> 00:14:02 the liberals. Then he goes after the dissenters.
00:14:03 --> 00:14:05 Yeah, this time it's aimed at justices who had
00:14:05 --> 00:14:08 been his allies. Kavanaugh joined the majority
00:14:08 --> 00:14:10 in West Virginia. He was part of the coalition
00:14:10 --> 00:14:12 that built the major questions doctrine into
00:14:12 --> 00:14:15 what it is. And now he dissents. He says the
00:14:15 --> 00:14:17 major questions doctrine doesn't apply here because
00:14:17 --> 00:14:19 AIP involves foreign affairs and because the
00:14:19 --> 00:14:21 statutory text constitutes clear congressional
00:14:21 --> 00:14:25 authorization. And Gorsuch's response is you
00:14:25 --> 00:14:28 can't have it both ways. Yeah. So he says if
00:14:28 --> 00:14:30 the major questions doctrine is really a neutral
00:14:30 --> 00:14:33 principle, it applies here. The economic stakes
00:14:33 --> 00:14:35 are larger than any prior case. The power is
00:14:35 --> 00:14:38 more extraordinary. The historical precedent
00:14:38 --> 00:14:40 is thinner. Every factor that triggered the doctrine
00:14:40 --> 00:14:44 before is present now only amplified. So he doesn't
00:14:44 --> 00:14:46 actually say the word hypocrisy, but it's pretty
00:14:46 --> 00:14:49 clear what he's getting at. Either the doctrine
00:14:49 --> 00:14:50 is a principle or it's a tool of convenience.
00:14:51 --> 00:14:53 You can't build it when the overreach comes from
00:14:53 --> 00:14:55 one side and abandon it when the overreach comes
00:14:55 --> 00:14:58 from the other. OK, so what does he say to Barrett?
00:14:58 --> 00:15:00 He's more gentle, but he's still going after
00:15:00 --> 00:15:03 this fundamental disagreement that they have.
00:15:03 --> 00:15:06 As he said, Barrett says that the major questions
00:15:06 --> 00:15:08 doctrine is just careful textualism. He thinks
00:15:08 --> 00:15:11 that's not enough and that we really need a robust,
00:15:11 --> 00:15:14 enforceable rule. Barrett worries that his approach
00:15:14 --> 00:15:16 goes beyond interpretation to impose a clarity
00:15:16 --> 00:15:20 tax on Congress. So he's fighting everyone on
00:15:20 --> 00:15:22 three fronts, the liberals for applying the major
00:15:22 --> 00:15:24 questions doctrine without admitting it, the
00:15:24 --> 00:15:27 dissenters for abandoning it when inconvenient,
00:15:27 --> 00:15:29 and Barrett for not making it strong enough.
00:15:29 --> 00:15:33 Yes. And what makes it so striking is that Gorsuch
00:15:33 --> 00:15:35 is essentially alone. No other justice seems
00:15:35 --> 00:15:38 to totally share this full vision. Okay. And
00:15:38 --> 00:15:41 do the liberal justices actually say they joined
00:15:41 --> 00:15:44 the textual holding but refused to apply the
00:15:44 --> 00:15:46 major questions doctrine? Yeah. Kagan is joined
00:15:46 --> 00:15:49 by Sotomayor and Jackson, and she concurs in
00:15:49 --> 00:15:51 part and concurs in the judgment. She agrees
00:15:51 --> 00:15:54 with the result. Like we said in the last episode,
00:15:54 --> 00:15:57 she is fully on board with the textual analysis,
00:15:57 --> 00:16:00 but she explicitly refuses to join the major
00:16:00 --> 00:16:03 questions doctrine part. And this is consistent.
00:16:03 --> 00:16:05 She objected to the major questions doctrine
00:16:05 --> 00:16:08 in West Virginia and Biden v. Nebraska, and she
00:16:08 --> 00:16:11 objects to it here, too. Even though it's working
00:16:11 --> 00:16:13 in her favor this time. Yeah. And her reasoning
00:16:13 --> 00:16:15 is that she doesn't need the major questions
00:16:15 --> 00:16:17 doctrine because ordinary statutory interpretation
00:16:17 --> 00:16:20 gets her there. Regulate doesn't mean tax in
00:16:20 --> 00:16:22 ordinary usage or in any other federal statute.
00:16:23 --> 00:16:25 Congress uses the word duty when it delegates
00:16:25 --> 00:16:28 tariff authority. No president has read IEPA
00:16:28 --> 00:16:30 this way for 50 years. For Kagan, that's enough.
00:16:30 --> 00:16:33 You don't need a special doctrine. And she says
00:16:33 --> 00:16:35 the clear statement requirement from the prior
00:16:35 --> 00:16:38 cases was wrong even when it led to a result
00:16:38 --> 00:16:40 she agreed with. Yeah. She says the approach
00:16:40 --> 00:16:43 used in those cases to override broad delegations
00:16:43 --> 00:16:46 were overriding delegations that Congress had
00:16:46 --> 00:16:48 actually intended. She doesn't want to validate
00:16:48 --> 00:16:50 that framework, even if it produces a result
00:16:50 --> 00:16:53 she likes in this case. And she says something
00:16:53 --> 00:16:55 else that's important. The conventional method
00:16:55 --> 00:16:58 of interpretation won't always favor or disfavor
00:16:58 --> 00:17:02 executive officials. It's going to depend on
00:17:02 --> 00:17:04 the different delegation schemes that Congress
00:17:04 --> 00:17:07 adopts. So sometimes Under her reading, ordinary
00:17:07 --> 00:17:09 textualism will strike down executive action.
00:17:10 --> 00:17:12 Sometimes it will uphold it. It just depends
00:17:12 --> 00:17:15 on the statute. Gorsuch claims she's now a convert.
00:17:16 --> 00:17:18 What does she say to that? Here's her footnote
00:17:18 --> 00:17:21 responding directly to Gorsuch. Given how strong
00:17:21 --> 00:17:24 his desire for converts, I almost regret to inform
00:17:24 --> 00:17:27 him that I am not one. So she says she's proceeding
00:17:27 --> 00:17:30 exactly as she did in the prior cases. She's
00:17:30 --> 00:17:32 looking at the language. She's looking at the
00:17:32 --> 00:17:34 statutory setting. She's using common sense about
00:17:34 --> 00:17:36 how Congress delegates. She reached different
00:17:36 --> 00:17:39 conclusions in those cases because those statutes
00:17:39 --> 00:17:41 were different. The Heroes Act really did broadly
00:17:41 --> 00:17:44 delegate waiver authority. The Clean Air Act
00:17:44 --> 00:17:46 really did broadly delegate authority over admission
00:17:46 --> 00:17:48 systems. IEBA's text just doesn't support the
00:17:48 --> 00:17:52 tariff claim. So where does that leave us on
00:17:52 --> 00:17:54 whether she's really applying the major questions
00:17:54 --> 00:17:57 doctrine under a different name? If what you
00:17:57 --> 00:17:59 mean by the major questions doctrine is court
00:17:59 --> 00:18:01 should be skeptical when the executive claims
00:18:01 --> 00:18:04 extraordinary power from vague language, Kagan's
00:18:04 --> 00:18:06 doing that here. If what you mean by the major
00:18:06 --> 00:18:08 questions doctrine is there's a heightened special
00:18:08 --> 00:18:11 standard that applies on top of ordinary interpretation,
00:18:11 --> 00:18:14 she's not. This matters because the extent they
00:18:14 --> 00:18:16 would sign on with a major questions doctrine,
00:18:16 --> 00:18:19 they'd be signing on to the weak version, not
00:18:19 --> 00:18:21 Gorsuch's strong version. And under the weak
00:18:21 --> 00:18:23 version, it would also be consistent for them
00:18:23 --> 00:18:26 to find that delegation was fine in prior cases
00:18:26 --> 00:18:29 and not in this one. Barrett also isn't OK with
00:18:29 --> 00:18:30 a version that puts a thumb on the scale against
00:18:30 --> 00:18:32 the best reading. She just doesn't reach the
00:18:32 --> 00:18:34 same best reading in every case as the liberals.
00:18:35 --> 00:18:37 OK, so there was another liberal concurrence,
00:18:37 --> 00:18:40 Jackson's concurrence. What does Justice Jackson
00:18:40 --> 00:18:43 say? Hers is. Really brief. She's really just
00:18:43 --> 00:18:46 adding a key dimension, and that is legislative
00:18:46 --> 00:18:49 history. She agrees with Kagan on the textual
00:18:49 --> 00:18:51 analysis, but she would also explicitly look
00:18:51 --> 00:18:53 at the House and Senate reports that accompany
00:18:53 --> 00:18:56 DAIPA. The textualists on the court generally
00:18:56 --> 00:18:58 resist relying on committee reports, and she's
00:18:58 --> 00:19:00 just trying to flag this as an additional source
00:19:00 --> 00:19:02 of evidence pointing to the same direction. It's
00:19:02 --> 00:19:04 a supporting argument, but it's not the main
00:19:04 --> 00:19:06 event. So then on the other side, we have two
00:19:06 --> 00:19:09 dissenting opinions. The principal dissent is
00:19:09 --> 00:19:12 by Kavanaugh. And in that, he's joined by Thomas
00:19:12 --> 00:19:15 and Alito. Thomas also writes separately with
00:19:15 --> 00:19:19 a distinctive originalist framework. That's shocking.
00:19:19 --> 00:19:22 But let's start with Cabot all because his defection
00:19:22 --> 00:19:24 from the major questions doctrine coalition is
00:19:24 --> 00:19:27 the real story here. Yeah. His basic claim is
00:19:27 --> 00:19:29 this. Tariffs are a traditional and common tool
00:19:29 --> 00:19:32 to regulate importation. They always have been.
00:19:32 --> 00:19:34 When you tell someone they can regulate imports,
00:19:35 --> 00:19:37 the ordinary understanding of that phrase has
00:19:37 --> 00:19:38 included tariffs throughout American history.
00:19:39 --> 00:19:41 And his strongest evidence for that claim? He
00:19:41 --> 00:19:45 points to the Nixon precedent. And in 1971, Nixon
00:19:45 --> 00:19:48 imposed a 10 % surcharge under the predecessor
00:19:48 --> 00:19:52 of AIPA using virtually identical language. And
00:19:52 --> 00:19:55 a court upheld it. And AIPA was enacted six years
00:19:55 --> 00:19:57 later with the same words. So his argument is
00:19:57 --> 00:19:59 Congress knew what those words had been interpreted
00:19:59 --> 00:20:02 to mean, and that's what they meant here. And
00:20:02 --> 00:20:04 then he also has the greater includes the lesser
00:20:04 --> 00:20:06 point. So read this because this is the argument
00:20:06 --> 00:20:10 that's hardest to counter intuitively. The plaintiffs
00:20:10 --> 00:20:12 in the court acknowledge that AIPA authorizes
00:20:12 --> 00:20:15 the president to impose quotas or embargoes on
00:20:15 --> 00:20:17 foreign imports, meaning that the president could
00:20:17 --> 00:20:21 completely block some or all imports. But they
00:20:21 --> 00:20:23 say that IEPA does not authorize the president
00:20:23 --> 00:20:26 to employ the lesser power of tariffs, which
00:20:26 --> 00:20:30 simply conditions imports on a payment. As they
00:20:30 --> 00:20:32 interpret the statute, the president could, for
00:20:32 --> 00:20:35 example, block all imports from China, but cannot
00:20:35 --> 00:20:37 order even a dollar tariff on goods imported
00:20:37 --> 00:20:39 from China. That approach does not make much
00:20:39 --> 00:20:43 sense. It's rhetorically effective. The gut reaction
00:20:43 --> 00:20:45 is, that can't be right. How can you do the bigger
00:20:45 --> 00:20:49 thing but not the smaller thing? And the majority's
00:20:49 --> 00:20:52 answer, like we talked about in the last episode,
00:20:52 --> 00:20:55 is that tariffs aren't a smaller version of an
00:20:55 --> 00:20:57 embargo. Right. They're a totally different kind
00:20:57 --> 00:21:00 of power. An embargo controls what crosses the
00:21:00 --> 00:21:03 border. A tariff raises revenue. One is regulation.
00:21:03 --> 00:21:06 The other is taxation. There's different powers
00:21:06 --> 00:21:09 and different mechanisms. OK, so Kavanaugh argues
00:21:09 --> 00:21:12 the major questions doctrine doesn't apply then
00:21:12 --> 00:21:15 to foreign affairs. Right. He says that the court
00:21:15 --> 00:21:17 has never applied the major questions doctrine
00:21:17 --> 00:21:19 in this context and that the history of congressional
00:21:19 --> 00:21:22 trade delegations is the history of broad grants
00:21:22 --> 00:21:24 of discretionary power. But the majority reads
00:21:24 --> 00:21:26 that same history and sees something different.
00:21:26 --> 00:21:29 A Congress that carefully guards its terror power,
00:21:29 --> 00:21:31 even when it delegates broadly in the trade space.
00:21:32 --> 00:21:34 The explicit language, the caps, the procedures,
00:21:34 --> 00:21:37 that's not Congress handing off the tariff power
00:21:37 --> 00:21:39 casually. That's Congress keeping it on a short
00:21:39 --> 00:21:42 leash. Okay, let's turn to Justice Thomas. He
00:21:42 --> 00:21:45 joins Kavanaugh in dissent and fool, but then
00:21:45 --> 00:21:49 he writes separately as he regularly does. Yeah,
00:21:49 --> 00:21:51 it's not really a shock to see a Thomas dissent.
00:21:52 --> 00:21:56 His argument is fundamentally different. He focuses
00:21:56 --> 00:21:58 on the non -delegation doctrine, which we talked
00:21:58 --> 00:22:01 about in episode three of season one. And that's
00:22:01 --> 00:22:03 the principle that Congress can't give away its
00:22:03 --> 00:22:05 legislative power without being sufficiently
00:22:05 --> 00:22:07 clear. Thomas says it simply doesn't apply to
00:22:07 --> 00:22:10 the tariff powers he understands it. He reasons
00:22:10 --> 00:22:13 that the non -delegation doctrine protects core
00:22:13 --> 00:22:15 legislative power, which he defines as the power
00:22:15 --> 00:22:18 to make rules that deprive people of life, liberty,
00:22:18 --> 00:22:20 or property, but the power to regulate foreign
00:22:20 --> 00:22:23 commerce, including through tariffs. is what
00:22:23 --> 00:22:25 Blackstone called a prerogative power, originally
00:22:25 --> 00:22:27 a royal power that the Constitution assigned
00:22:27 --> 00:22:29 to Congress, but the Congress could freely delegate
00:22:29 --> 00:22:33 back to the president. So for Thomas, the separation
00:22:33 --> 00:22:35 of powers concerns that drive the majority's
00:22:35 --> 00:22:39 analysis are just misplaced because what the
00:22:39 --> 00:22:43 king was able to do. Right. And what better guide
00:22:43 --> 00:22:45 could we use as to what our Constitution means
00:22:45 --> 00:22:48 than what the king happened to be doing at the
00:22:48 --> 00:22:51 time? Here, he says that the majority is applying
00:22:51 --> 00:22:54 structural principles that don't fit in this
00:22:54 --> 00:22:57 kind of context. And if his view were adopted,
00:22:57 --> 00:22:59 it would significantly expand the permissible
00:22:59 --> 00:23:01 scope of delegations in foreign commerce and
00:23:01 --> 00:23:04 trade. But this is a solo opinion. It's really
00:23:04 --> 00:23:06 just the kind of opinion that's put out there
00:23:06 --> 00:23:09 to generate law review articles such that it
00:23:09 --> 00:23:12 could potentially resurface in the future. OK,
00:23:12 --> 00:23:16 so what happens next time then? The lineup held
00:23:16 --> 00:23:20 because the text was reasonably clear. Does it
00:23:20 --> 00:23:23 hold when it's closer? That will depend on the
00:23:23 --> 00:23:26 statute. It certainly seems like the liberal
00:23:26 --> 00:23:29 justices aren't going to uphold overreach by
00:23:29 --> 00:23:31 a conservative president just to avoid validating
00:23:31 --> 00:23:34 a doctrine they've criticized. And Robert Gorsuch
00:23:34 --> 00:23:36 and Barrett aren't going to abandon the doctrine
00:23:36 --> 00:23:39 when their own side overreaches. So, again, in
00:23:39 --> 00:23:41 these clear cases, we probably have six votes
00:23:41 --> 00:23:43 to strike down some extraordinary claim of power
00:23:43 --> 00:23:46 from vague statutory language. The reasoning
00:23:46 --> 00:23:49 will differ. The vote can't won't. And that matters
00:23:49 --> 00:23:51 because this administration has claimed a lot
00:23:51 --> 00:23:54 of broad powers. But Kavanaugh, Thomas and Alito,
00:23:54 --> 00:23:56 they're not part of that convergence and they're
00:23:56 --> 00:23:59 likely not going anywhere. That brings us back
00:23:59 --> 00:24:01 to something we were talking about in season
00:24:01 --> 00:24:03 one. Administrative law rules start to look different
00:24:03 --> 00:24:06 depending on who's exercising the power. Democrats
00:24:06 --> 00:24:09 hated the major questions doctrine until terrorists
00:24:09 --> 00:24:11 made them realize that maybe they didn't like
00:24:11 --> 00:24:14 unchecked executive action. Kavanaugh supported
00:24:14 --> 00:24:16 the major questions doctrine until it was pointed
00:24:16 --> 00:24:18 at his side. The doctrine's real test isn't whether
00:24:18 --> 00:24:20 it survives, it's whether it survives as a principle
00:24:20 --> 00:24:23 rather than a convenience. This case didn't resolve
00:24:23 --> 00:24:26 it, but it gave us potentially the clearest map
00:24:26 --> 00:24:29 yet of where every justice stands. And for anyone
00:24:29 --> 00:24:32 who listens to season one, this is why we covered
00:24:32 --> 00:24:35 what we covered. Yes, it is. And next week we
00:24:35 --> 00:24:38 will be back to season two. So that does it for
00:24:38 --> 00:24:40 today's episode on administrative remedies. Thank
00:24:40 --> 00:24:43 you for joining us today. Please, if you enjoy
00:24:43 --> 00:24:45 this podcast, enjoy this episode, give us a like
00:24:45 --> 00:24:49 on Spotify, iTunes, or whatever platform you're
00:24:49 --> 00:24:52 listening on. And be sure to tune in next time
00:24:52 --> 00:24:54 where we'll continue to dive into the contours
00:24:54 --> 00:24:56 of administrative law, because remember, you
00:24:56 --> 00:24:57 can't fix what you don't understand.