SCOTUS Term 25-26

[Aardvark86]

I understand what you're saying but why not a good thing for black voters. OK so we eliminate designated "black" districts. Isn't such a district in contravention of both Dr King's wants and the civil rights law prohibiting discrimination based on race. Looking at it in current form aren't whites, Latinos, and Asians disadvantage living in a "black" district? In a redrawn - fairly - district everyone gets to vote based on their wants and the qualifications of the candidates. I'm kind of surprised asians haven't complained about the lack of Asian districts. Or maybe they have and I just haven't seen it

We should get back to the basics of designing congressional districts. Out with gerrymandered districts black, democrat and Republican districts. It's no wonder we are in the current situation politically. Both parties organizing and carving districts for their benefit at the detriment of voters should stop

TBC, I mean the black voters who are the plaintiffs in the original lawsuit case here, not black voters generally.

I think one of the reasons we don’t see these sorts of complaints by Asians is that they don’t vote as a monolithic bloc. That sort of underscores some of the hypos the sg was making

 

[BigPapaWhit]

I understand what you're saying but why not a good thing for black voters. OK so we eliminate designated "black" districts. Isn't such a district in contravention of both Dr King's wants and the civil rights law prohibiting discrimination based on race. Looking at it in current form aren't whites, Latinos, and Asians disadvantage living in a "black" district? In a redrawn - fairly - district everyone gets to vote based on their wants and the qualifications of the candidates. I'm kind of surprised asians haven't complained about the lack of Asian districts. Or maybe they have and I just haven't seen it

We should get back to the basics of designing congressional districts. Out with gerrymandered districts black, democrat and Republican districts. It's no wonder we are in the current situation politically. Both parties organizing and carving districts for their benefit at the detriment of voters should stop

Not saying you’re wrong but that is not what is being argued in this particular case. Supreme Court does not typically make grand sweeping declarations but rather examine narrow issues.
@Aardvark86 please correct me if I screw it up.
if I understand correctly, this case is being argued in a very narrow scope.
impact versus intent: Louisiana ergo Republicans are arguing because Racism was the intent or motivation they’re free and clear. The other side is arguing regardless of intent the impact was to a race.

 

[Aardvark86]

Not saying you’re wrong but that is not what is being argued in this particular case. Supreme Court does not typically make grand sweeping declarations but rather examine narrow issues.
@Aardvark86 please correct me if I screw it up.
if I understand correctly, this case is being argued in a very narrow scope.
impact versus intent: Louisiana ergo Republicans are arguing because Racism was the intent or motivation they’re free and clear. The other side is arguing regardless of intent the impact was to a race.

Ok, so I tried to take a quick review of the various merits briefs of the parties and the United States, and I'm going to listen to the oral argument tonight on the drive home. But to tee things up, let me say a couple of things. First, this is an enormously complicated case -- two cases really --procedurally. You had an original map threatened to be struck down which lead the state to enact a second (gerrymandered) map with two MM districts. In doing so, the state tried to accomplish two things: avoid the district court drawing a map, and protecting the political power of incumbents (namely, Johnson, Scalise, and a woman who sits on appropriations). All pretty conventional so far. But then, a second lawsuit is filed by white voters challenging the racial gerrymander, basically 'because" it was based on race.

So initially, the state comes in and says, yeah, we considered race, but were permitted to do so under strict scrutiny because (i) compliance with VRA was a compelling interest, (ii) the new map entailed other nonracial motivations (protecting political incumbents) and (iii) consideration of race in this manner is 'narrow tailoring." The second case plaintiffs basically say compliance/avoidance isn't a compelling interest, and that the map wasnot narrowly tailored because the gerrymandered area had no issues with respect to racial electoral access.

That was the case that was argued last year. But the court didn't rule, and instead directed the parties to brief whether the Constitution actually forbids race-based redistricting, even as a VRA remedy. The state sort of shifts position and says, yes, we've said that all along but had to comply, and feds agree, the second plaintiffs agree, and so now it's all of them against the NAACP, which basically makes the conventional/precedential arguments that it's permitted as a remedial matter. Essentially the state portrays this as just like the recent education admissions case (SFFA) that you can't invoke race in the name of diversity, period.

1. Part of the root cause here, I think, is that you had two (likely activist) lower courts that got too far out over their skis
2. Realy interesting comment by Mooppan (US-SG) in yesterday's argument to the effect that if you look at the demographics of congress, comparatively few black reps are actually elected from MM districts..

I'll add some thoughts after i listen to the argument. But again, this is terribly complicated, and full disclosure, I'm really not in the weeds on the VRA.

 

[BigPapaWhit]

Ok, so I tried to take a quick review of the various merits briefs of the parties and the United States, and I'm going to listen to the oral argument tonight on the drive home. But to tee things up, let me say a couple of things. First, this is an enormously complicated case -- two cases really --procedurally. You had an original map threatened to be struck down which lead the state to enact a second (gerrymandered) map with two MM districts. In doing so, the state tried to accomplish two things: avoid the district court drawing a map, and protecting the political power of incumbents (namely, Johnson, Scalise, and a woman who sits on appropriations). All pretty conventional so far. But then, a second lawsuit is filed by white voters challenging the racial gerrymander, basically 'because" it was based on race.

So initially, the state comes in and says, yeah, we considered race, but were permitted to do so under strict scrutiny because (i) compliance with VRA was a compelling interest, (ii) the new map entailed other nonracial motivations (protecting political incumbents) and (iii) consideration of race in this manner is 'narrow tailoring." The second case plaintiffs basically say compliance/avoidance isn't a compelling interest, and that the map wasnot narrowly tailored because the gerrymandered area had no issues with respect to racial electoral access.

That was the case that was argued last year. But the court didn't rule, and instead directed the parties to brief whether the Constitution actually forbids race-based redistricting, even as a VRA remedy. The state sort of shifts position and says, yes, we've said that all along but had to comply, and feds agree, the second plaintiffs agree, and so now it's all of them against the NAACP, which basically makes the conventional/precedential arguments that it's permitted as a remedial matter. Essentially the state portrays this as just like the recent education admissions case (SFFA) that you can't invoke race in the name of diversity, period.

1. Part of the root cause here, I think, is that you had two (likely activist) lower courts that got too far out over their skis
2. Realy interesting comment by Mooppan (US-SG) in yesterday's argument to the effect that if you look at the demographics of congress, comparatively few black reps are actually elected from MM districts..

I'll add some thoughts after i listen to the argument. But again, this is terribly complicated, and full disclosure, I'm really not in the weeds on the VRA.

Appreciate the write up. Since we’re fully disclosing, me and law school broke up after 3 semesters. I didn’t appreciate the debt and methodology. They didn’t appreciate attitude and my methodology. Learned a lot. Part of me would not mind revisiting the experience but not for the projected ROI. Enough of me…

Like you I am not well versed in VAR. Based on what I do know, I wonder if the VAR is the best tool parties(citizens) have to fight gerrymandering? Focusing on racial impact seems very limiting. However, I am not sure disenfranchisement would work either because citizens can still technically vote. Perhaps there is a free speech argument due to members votes being “artificially”restricted.

In short, I hate gerrymandering for whatever purpose or design. However I am not sure the Constitution provides a remedy. Asking for an amendment seems crazy when we cannot even pass a budget. Not to mention both parties have seats and lines to protect.

 

[Aardvark86]

Appreciate the write up. Since we’re fully disclosing, me and law school broke up after 3 semesters. I didn’t appreciate the debt and methodology. They didn’t appreciate attitude and my methodology. Learned a lot. Part of me would not mind revisiting the experience but not for the projected ROI. Enough of me…

Like you I am not well versed in VAR. Based on what I do know, I wonder if the VAR is the best tool parties(citizens) have to fight gerrymandering? Focusing on racial impact seems very limiting. However, I am not sure disenfranchisement would work either because citizens can still technically vote. Perhaps there is a free speech argument due to members votes being “artificially”restricted.

In short, I hate gerrymandering for whatever purpose or design. However I am not sure the Constitution provides a remedy. Asking for an amendment seems crazy when we cannot even pass a budget. Not to mention both parties have seats and lines to protect.

A former undergrad poli sci professor once told me that he had considered getting his law degree so that he understood process better, but decided against it because he realized that legal education teaches you that no thought is valid unless someone else thought of it already

 

[Aardvark86]

OK, some reactions to the oral argument:
1. First, some comments on the advocates, who all did well. Janai Nelson from NAACP was very clear and responsive, but occasionally had a tendency to couch things in policy rather than legal rhetoric. (Also, perhaps intentionally but a little surprisingly, she avoided the constitutional question the court had actually asked for reargument on.) The SG from LA was good, but a little too flippant. The plaintiffs' attorney was likewise making rhetorical arguments that weren't going to carry the day. Mooppan, the principal deputy SG for the US, was outstanding as you might expect.
2. It was an interesting argument in that the court frankly seemed least interested in what the actual parties had to say, and most interested in what the US-SG had to say. It was not a 'hot bench' from the conservative side (perhaps except Alito who did his usual thing a little bit), though the 3 liberal justices got a little exasperated at times. That's probably not a good sign for the AA plaintiffs from the original lawsuit who were defending the second MM district.
3. A good chunk of the argument focused on whether a state has a compelling interest to act on the basis of race (by creating a MM district) based on the PI and threat of a judicial map in the first case. Justice Thomas seemed to be pushing the theme (frankly similar to a lot of the other emergency docket cases that have been popping up) that a PI is ultimately preliminary and doesn't reflect final judicial findings, and thus the state's interest isn't compelling. I doubt that gets a lot of traction from other than maybe Alito.
4. There was a lot of focus on the nature of VRA2. The liberal justices emphasized (correctly, I think) that it doesn't require intentional discrimination or historic discrimination, but rather is simply a mechanism for continuously evaluating whether existing maps may inhibit voting on the basis of race, whether intentionally or not.
5. Where the real meat of things ended up though was, even assuming a potential inhibition is identified without regard to intent, when can a state or a court use a race-based remedy like a MM district to address it (and just when does race 'predominate' so that you should view it as a race-based remedy). The state and the SG were essentially arguing that it's only available when you start bringing intent back into things, given the 15th amendment. (For example, the US-SG was arguing that you'd need something suggesting, for example, that white democrats would not vote for black democratic candidates in primaries. And here, the G cited to the idea that the legislature was clearly responding to the threat of a judicial map by the first judge) The NAACP's best argument, I think, was that MM remedial authority is long standing, and given the decennial redistricting process, of limited duration.
6. There seemed to be general consensus that a state has some latitude to gerrymander for partisan purposes, like protecting incumbents. But It seems to me there is a terrible paradox here. Simply stated, there is no other demographic group whose voting patterns correlate to a particular party to anywhere near the degree of correlation between AAs and democratic voting. Thus, it becomes hard to untangle whether politics or race is the driver, and as long as that voting correlation continues, it's hard to see any end to VRA litigation. Indeed, I suspect one of the reasons you don't see VRA2 cases for other minority groups is that they simply don't have the political coherence to make it worth it for someone to pursue.
7. Mooppan noted an interesting stat late in the argument - of the 60 or so congress members who identify as AA, only about 15 of them come from MM districts.
8. I suspect we are going to see a decision where the ability to employ race based remedies like MM districts in VRA2 situations is going to be limited. CT, SA, NG certainly supported that, BK is clearly concerned about the evergreen aspects of this stuff. The chief and Barrett were a little harder to read but seemed like leans toward doing something, particularly given the real conundrum LA has been in getting sued from both sides.
9. Finally, a personal observation. Regardless of what one thinks of his opinions, I'm extremely impressed by the way BK conducts himself at oral arguments - perhaps better than any other justice except maybe the chief and barrett. He is respectful, he does not engage in 'primrose path' arguments with the advocates, he doesn't interrupt, and he spends a lot of time just making sure he really understands the parties' positions.

 

[BigPapaWhit]

OK, some reactions to the oral argument:
1. First, some comments on the advocates, who all did well. Janai Nelson from NAACP was very clear and responsive, but occasionally had a tendency to couch things in policy rather than legal rhetoric. (Also, perhaps intentionally but a little surprisingly, she avoided the constitutional question the court had actually asked for reargument on.) The SG from LA was good, but a little too flippant. The plaintiffs' attorney was likewise making rhetorical arguments that weren't going to carry the day. Mooppan, the principal deputy SG for the US, was outstanding as you might expect.
2. It was an interesting argument in that the court frankly seemed least interested in what the actual parties had to say, and most interested in what the US-SG had to say. It was not a 'hot bench' from the conservative side (perhaps except Alito who did his usual thing a little bit), though the 3 liberal justices got a little exasperated at times. That's probably not a good sign for the AA plaintiffs from the original lawsuit who were defending the second MM district.
3. A good chunk of the argument focused on whether a state has a compelling interest to act on the basis of race (by creating a MM district) based on the PI and threat of a judicial map in the first case. Justice Thomas seemed to be pushing the theme (frankly similar to a lot of the other emergency docket cases that have been popping up) that a PI is ultimately preliminary and doesn't reflect final judicial findings, and thus the state's interest isn't compelling. I doubt that gets a lot of traction from other than maybe Alito.
4. There was a lot of focus on the nature of VRA2. The liberal justices emphasized (correctly, I think) that it doesn't require intentional discrimination or historic discrimination, but rather is simply a mechanism for continuously evaluating whether existing maps may inhibit voting on the basis of race, whether intentionally or not.
5. Where the real meat of things ended up though was, even assuming a potential inhibition is identified without regard to intent, when can a state or a court use a race-based remedy like a MM district to address it (and just when does race 'predominate' so that you should view it as a race-based remedy). The state and the SG were essentially arguing that it's only available when you start bringing intent back into things, given the 15th amendment. (For example, the US-SG was arguing that you'd need something suggesting, for example, that white democrats would not vote for black democratic candidates in primaries. And here, the G cited to the idea that the legislature was clearly responding to the threat of a judicial map by the first judge) The NAACP's best argument, I think, was that MM remedial authority is long standing, and given the decennial redistricting process, of limited duration.
6. There seemed to be general consensus that a state has some latitude to gerrymander for partisan purposes, like protecting incumbents. But It seems to me there is a terrible paradox here. Simply stated, there is no other demographic group whose voting patterns correlate to a particular party to anywhere near the degree of correlation between AAs and democratic voting. Thus, it becomes hard to untangle whether politics or race is the driver, and as long as that voting correlation continues, it's hard to see any end to VRA litigation. Indeed, I suspect one of the reasons you don't see VRA2 cases for other minority groups is that they simply don't have the political coherence to make it worth it for someone to pursue.
7. Mooppan noted an interesting stat late in the argument - of the 60 or so congress members who identify as AA, only about 15 of them come from MM districts.
8. I suspect we are going to see a decision where the ability to employ race based remedies like MM districts in VRA2 situations is going to be limited. CT, SA, NG certainly supported that, BK is clearly concerned about the evergreen aspects of this stuff. The chief and Barrett were a little harder to read but seemed like leans toward doing something, particularly given the real conundrum LA has been in getting sued from both sides.
9. Finally, a personal observation. Regardless of what one thinks of his opinions, I'm extremely impressed by the way BK conducts himself at oral arguments - perhaps better than any other justice except maybe the chief and barrett. He is respectful, he does not engage in 'primrose path' arguments with the advocates, he doesn't interrupt, and he spends a lot of time just making sure he really understands the parties' positions.

For clarification, does MM mean Majority-Minority District?

The intent versus impact/in fact argument is compelling. How is intent proven? We have one party's say so. Are courts supposed to take it at face value? BTW, I'm not saying they're lying. But again, how is it proven? Or disproven?

Agree on BK, way more curious than what may have been inferred or implied during his confirmation process.

 

[BigPapaWhit]

For clarification, does MM mean Majority-Minority District?

The intent versus impact/in fact argument is compelling. How is intent proven? We have one party's say so. Are courts supposed to take it at face value? BTW, I'm not saying they're lying. But again, how is it proven? Or disproven?

Agree on BK, way more curious than what may have been inferred or implied during his confirmation process.

In my Googling ...

found this not sure the veracity of the website but it lays down some background...

What Is a Majority-Minority District and How Is It Established?

Explore the establishment of majority-minority districts, focusing on legal criteria, representation rights, and judicial oversight.

legalclarity.org

 

[Aardvark86]

For clarification, does MM mean Majority-Minority District?

The intent versus impact/in fact argument is compelling. How is intent proven? We have one party's say so. Are courts supposed to take it at face value? BTW, I'm not saying they're lying. But again, how is it proven? Or disproven?

Agree on BK, way more curious than what may have been inferred or implied during his confirmation process.

Yes re MM.

 

[Aardvark86]

Interesting cert grant today - US v. Hemani, regarding whether the 2A restrict's the ability to restrict firearm ownership for those with a CS addiction.

Personally, I'm not a 2A obsessive, but I assume this'll be of interest to those that are.

Edit: BTW, I am also wondering whether today's grant in the Flower Foods case may be a sneaky little animal in terms of being a vehicle for suggesting a narrower interpretation of the commerce clause.

 

[Aardvark86]

So while it's generally been quiet with the Court on hiatus between argument sessions, there's been a bit of news chatter the last week or so about the birthright citizenship case, and here's a little food for thought on that till we get cooking again next week. To recap, the administration prevailed on the universal injunction issue in Trump v CASA, but has now asked the Court to take up two cases on the merits regarding whether the 14th amendment provides for birthright citizenship as a constitutional matter; 23 states have filed a brief in support. In particular, they're arguing that the 14th amendment was primarily focused on granting citizenship to former slaves, and more technically, that the amendment's phrase about persons being "subject to the jurisdiction" of the united states allows for the president's executive order to the effect that children of illegals don't get birthright citizenship. I suspect they'll take it up, though the best chance of them not doing so is that it has some procedural fleas in terms of ripeness and standing (though maybe that's why they will take it up - to kick the merits can down the road further).

My preliminary take on the merits is that, the 'subject to the jurisdiction' argument is far from frivolous, makes a certain practical sense, and finds some support in the historical understanding of citizenship in the common law (and the absence of an organized immigration system until decades after the enactment of the 14th). But, there's a problem that few seem to be noting. Recall that the 14th amendment also gives a statutory power to Congress to implement and enforce the amendment. Thus, while on the one hand the "left" are IMO wrong to assert that this is black and white from the text of the 14th and Wong Kim Ark, and only a further amendment to the Constitution can change things, the fact that Congress has failed to enact any such citizenship limits in light of the relatively broad language of the citizenship grant suggests to me that the administration should lose this case. Further, to borrow a phrase from Prosper of Acquitane, "lex orandi, lex credendi" (the way of worship is the way of belief), ie, the society's general acclimation of birthright citizenship in practice informs our interpretation of the 14th in its favor.

That said, I think it would be a much tougher case if Congress sought to enact such limits by statute pursuant to section 5 of the 14th.

 

[Aardvark86]

Tariffs today, boys and girls.

I think this is going to be closer than people think. My best guess is the court rules that 'regulate' doesn't encompass a tariff power at a statutory level, so as to avoid having to get into the issue of questioning an executive emergency declaration made by a president authorized by congress to make it.

BTW, FANTASTIC piece on Politico this morning that drills down into the arguments.

 

[yoshi121374]

Tariffs today, boys and girls.

I think this is going to be closer than people think. My best guess is the court rules that 'regulate' doesn't encompass a tariff power at a statutory level, so as to avoid having to get into the issue of questioning an executive emergency declaration made by a president authorized by congress to make it.

BTW, FANTASTIC piece on Politico this morning that drills down into the arguments.

Thanks for adding your commentary to these matters. Very few of us truly understand the legal arguments and history. I appreciate that lessons.

 

[Aardvark86]

So far, the SG is getting the challenges you'd expect, from the people you'd expect. Aside from one or two major questions references, the argument is overwhelming focused so far on the statutory construction of "regulate" to encompass tariff authority. Probably makes sense in that both the liberals and conservatives recognize the difficulty of taking on executive emergency declarations head on.

ACB noting that the statutory argument (regulate includes tariff authority) hasn't ever really been adopted in a case before.
EK pressing a little harder on the major questions/nondelegation arguments, as is NG (though NG is more focused on its importance to assuring Article I responsibility).

 

[anon1772460595]

Tariffs today, boys and girls.

I think this is going to be closer than people think. My best guess is the court rules that 'regulate' doesn't encompass a tariff power at a statutory level, so as to avoid having to get into the issue of questioning an executive emergency declaration made by a president authorized by congress to make it.

BTW, FANTASTIC piece on Politico this morning that drills down into the arguments.

Sorry I haven’t followed this closely. Is a decision today expected?

I’ve had the chance to listen to the arguments, and it’s been a pleasant surprise as far as what government/law should look like. It gives me a little hope

 

[Aardvark86]

Sorry I haven’t followed this closely. Is a decision today expected?

I’ve had the chance to listen to the arguments, and it’s been a pleasant surprise as far as what government/law should look like. It gives me a little hope

No, it'll be a little while before the decision. It'll be interesting to see how hot the bench is for the challengers. As of right now, there is a lot of skepticism from teh court as to the government's position.

And yeah, there are really very few things that annoy me more than when people suggest that the justices are just all in the bag politically. They may have distinct approaches to construing the law (the range of which are all perfectly respectable as jurisprudential approaches), but all of them take their job very very seriously.

 

[fatpiggy]

Tariffs today, boys and girls.

I think this is going to be closer than people think. My best guess is the court rules that 'regulate' doesn't encompass a tariff power at a statutory level, so as to avoid having to get into the issue of questioning an executive emergency declaration made by a president authorized by congress to make it.

BTW, FANTASTIC piece on Politico this morning that drills down into the arguments.

Very interesting case and I could see it going either way. 50-50.

Would the tariffs collected have to be returned if the ruling goes against the tariffs?

 

[Aardvark86]

Very interesting case and I could see it going either way. 50-50.

Would the tariffs collected have to be returned if the ruling goes against the tariffs?

Some speculation they may punt on that (or at least leave to the lower court in first instance). May depend on basis for ruling.

 

[Aardvark86]

So far, my favorite moment of the argument has been my judicial hero NG bringing us back to what had been what I think and hope will be the predominant theme of the Roberts court in the light of history: reorienting our system back to Article I predominance.

As much as people have wrung their hands about Trump's victories to date before this court, the dirty little secret is that most of those victories have been on procedural/preliminary matters (IMO, because the court's been rightfully trying to avoid thornier issues of interbranch authority). This is really the first one where they'll have to decide the case on the substantive merits of a president's authority. Sorry, but you don't necessarily get your oompah-loompah now in litigation.

 

[BigPapaWhit]

Tariffs today, boys and girls.

I think this is going to be closer than people think. My best guess is the court rules that 'regulate' doesn't encompass a tariff power at a statutory level, so as to avoid having to get into the issue of questioning an executive emergency declaration made by a president authorized by congress to make it.

BTW, FANTASTIC piece on Politico this morning that drills down into the arguments.

Link?

 

[Aardvark86]

Link?

https://www.politico.com/news/magazine/2025/11/05/supreme-court-tariffs-legal-conservative-debate-00618703

 

[Aardvark86]

I will say, I think Alito asked the hardest question of the challengers on the statutory construction question (regulate/tariff):

If Congress enacted a law authorizing the president to "regulate admissions" to national parks, could the president require the parks to charge an admission fee?

Weirdly, it devolved into this economically bizarre suggestion that somehow if the fee was just reflecting cost recovery, it wasn't 'revenue-generating' and therefore not analogous to the tariff question.

 

[fatpiggy]

 

[fatpiggy]

 

[LafayetteBear]

I understand what you're saying but why not a good thing for black voters. OK so we eliminate designated "black" districts. Isn't such a district in contravention of both Dr King's wants and the civil rights law prohibiting discrimination based on race. Looking at it in current form aren't whites, Latinos, and Asians disadvantage living in a "black" district? In a redrawn - fairly - district everyone gets to vote based on their wants and the qualifications of the candidates. I'm kind of surprised asians haven't complained about the lack of Asian districts. Or maybe they have and I just haven't seen it

We should get back to the basics of designing congressional districts. Out with gerrymandered districts black, democrat and Republican districts. It's no wonder we are in the current situation politically. Both parties organizing and carving districts for their benefit at the detriment of voters should stop

This ^^^^ is just a bunch of apologia for Republican state legislatures carving up districts with significant numbers of African American residents into odd shaped districts where they are a narrowly outnumbered by white voters,, so that black voters have less representation than they would have if legislators were elected on the basis of their overall share of the electorate. It's obvious that individual voting districts are not necessarily representative of the overall (i.e., statewide) distribution of white and minority voters, but the intent and effect of these crazily drawn voting districts is hard (and often impossible) to ignore. The Roberts Court's dismantling of the Voting Rights Act is simply facilitating the process.

 

[LafayetteBear]

Poor Kavanaugh. Perhaps he should re-read Article 1, Section 10, Clause 2 of the Constitution. It's pretty clear as to which branch of government has sole authority over tariffs.

 

[Aardvark86]

Btw, best question / exchange with the sg was whether the president could declare global warming an emergency and impose tariffs on gas powered vehicles.

 

[UrHuckleberry]

Btw, best question / exchange with the sg was whether the president could declare global warming an emergency and impose tariffs on gas powered vehicles.

The emergency thing has seemed to come up a lot (multiple courts/cases). Since emergency doesn’t seem to be clearly defined, it sort of defeats the point of the word.

 

[Allornothing]

No, it'll be a little while before the decision. It'll be interesting to see how hot the bench is for the challengers. As of right now, there is a lot of skepticism from teh court as to the government's position.

And yeah, there are really very few things that annoy me more than when people suggest that the justices are just all in the bag politically. They may have distinct approaches to construing the law (the range of which are all perfectly respectable as jurisprudential approaches), but all of them take their job very very seriously.

"but all of them take their job very very seriously."

Does this mean I can say I don't know what a woman is either?

 

[Aardvark86]

The emergency thing has seemed to come up a lot (multiple courts/cases). Since emergency doesn’t seem to be clearly defined, it sort of defeats the point of the word.

The reason I think this’ll get decided on “regulate” is that it is in fact a big deal to second guess an emergency declaration the president is in fact statutorily authorized to make, no matter how broad the consensus may be that there isn’t really an emergency. They’re as concerned about the case 50 years from now as this one and they’ll avoid boxing things in if they can.

justices often remark that most of the issues the court has to address come down to the issue “who decides?” It’s much easier to say “he’s not been authorized” than “he’s authorized but wrong on the policy judgement”.

 

[Aardvark86]

Poor Kavanaugh. Perhaps he should re-read Article 1, Section 10, Clause 2 of the Constitution. It's pretty clear as to which branch of government has sole authority over tariffs.

It is, but that’s not the question. The question is whether they delegated it (and perhaps whether they could, as suggested by the comparison to the power to declare war). I suspect we both think they didn’t.

 

[UrHuckleberry]

The reason I think this’ll get decided on “regulate” is that it is in fact a big deal to second guess an emergency declaration the president is in fact statutorily authorized to make, no matter how broad the consensus may be that there isn’t really an emergency. They’re as concerned about the case 50 years from now as this one and they’ll avoid boxing things in if they can.

justices often remark that most of the issues the court has to address come down to the issue “who decides?” It’s much easier to say “he’s not been authorized” than “he’s authorized but wrong on the policy judgement”.

Right, exactly what I mean. Seems that argument has come up a few times. And I get that you can’t define emergency too strictly as you can’t predict every scenario. But seems like why even have restrictions if the executive can just utter the word emergency and then override otherwise given authority.

 

[Aardvark86]

Right, exactly what I mean. Seems that argument has come up a few times. And I get that you can’t define emergency too strictly as you can’t predict every scenario. But seems like why even have restrictions if the executive can just utter the word emergency and then override otherwise given authority.

With a little luck, at some point in the next decade, Congress will take a long and hard look at statutes containing emergency powers . Precisely the sort of rebasing described in s p Huntington’s “politics of disharmony”. Until then, there’s some reaping of what has been sown.

 

[UrHuckleberry]

With a little luck, at some point in the next decade, Congress will take a long and hard look at statutes containing emergency powers . Precisely the sort of rebasing described in s p Huntington’s “politics of disharmony”

Will take one side being willing to pass a law that limits their current leader. But one can hope.

 

[Aardvark86]

Will take one side being willing to pass a law that limits their current leader. But one can hope.

It happens with surprising regularity historically

 

[DCandtheUTBand]

The left wrote a law of about 3K pages that mostly said the secretary shall determine. They want to whine that Trump is using his power as head of the executive to do something they don't like.

They have spent decades writing vague laws that empower the administrative state so as to insulate themselves from doing their job.

The hope was that technocrats would bring about their "progressive" agendas, they could wash their hands, and try to prevent the head of the executive from undoing their schemes. Trump got elected and as zer0 said he has a "pen and a phone."

Now I would love for SCOTUS to do their job and declare that 90%+ of the administrative state is unconstitutional. If it isn't in the enumerated powers congress can not do it. 90% of what happened after Wilson would be undone. Short term chaos would reign, constitutional amendments would be proposed and fail, and long term the country would be better off for it.

Are there limits to congress ceding power? Well the line item veto was deemed an abrogation that went too far.

 

[UrHuckleberry]

@Aardvark86 what are your thoughts on the major questions doctrine? Seemed to get a lot of play with the justices.

 

[LafayetteBear]

The reason I think this’ll get decided on “regulate” is that it is in fact a big deal to second guess an emergency declaration the president is in fact statutorily authorized to make, no matter how broad the consensus may be that there isn’t really an emergency. They’re as concerned about the case 50 years from now as this one and they’ll avoid boxing things in if they can.

justices often remark that most of the issues the court has to address come down to the issue “who decides?” It’s much easier to say “he’s not been authorized” than “he’s authorized but wrong on the policy judgement”.

The Roberts court has been pretty accommodating to Trump, to say the least. But in order to rule in his favor here, they would have to ignore a fair amount of Supreme Court precedent. The article linked below (and authored by a law school professor) discusses that subject pretty thoroughly, at least for a news article:

Trump's solicitor general stumbled at the Supreme Court. That may not matter.

The Constitution, the text of the relevant statute, and this Court’s past rulings argue against the president.

www.msnbc.com

 

[LafayetteBear]

With a little luck, at some point in the next decade, Congress will take a long and hard look at statutes containing emergency powers . Precisely the sort of rebasing described in s p Huntington’s “politics of disharmony”. Until then, there’s some reaping of what has been sown.

I sure do hope they do. Trump has declared so many "emergencies" that he looks worse on this subject than the boy who cried "wolf."

 

[baltimorened]

I sure do hope they do. Trump has declared so many "emergencies" that he looks worse on this subject than the boy who cried "wolf."

he calls emergency, because our system give him so much power in an emergency. But how do you, generic you, ascertain that there was no emergency when you might not have the same perspective or information as the president.? For example, is China's position on rare earth materials limits constitute an emergency? For you and I likely no. But from a national security perspective, absolutely yes.

I believe, that somewhere along the way Congress has ceded too much power to the executive. Maybe it's because of the speed of "action" in the current world, or because it's just easier to be in Congress if you don't have to make decisions. Any way, we've gone way too far in the direction of executive orders and/or emergencies.