In case you’ve been under a rock, we have this president who loves tariffs. I don’t mean he thinks they’re good. I mean, he is actively trying to figure out how he could stick his Anthony Wiener in tariffs and make little orange tariff babies—it’s unsettling.
Here’s the issue, tariffs are a tax on goods, under another name. The only thing making them different is unlike a sales tax that applies to everything except tax exempt stuff, and are applied at the point of sale, tariffs only apply to foreign goods, and the tax is applied at the point of import.
Tax Man Max from Schoolhouse Rock
With that in mind, I’ll take you back to grade school government. Who has the power to levy taxes? Not the fucking president, that’s who. There’s this group of 535 assholes (subject to change) we call congress—that’s their bag, baby.
Despite the fact that the GOP control the Senate and the House of Representatives, Trump refuses to work to get congress to enact such tariffs—he’s decided he must do it himself by fiat.
Trump, not certain whether he’s a fucking king or not, decided to figure out if there was some law, any law, that would give him the power to impose tariffs at will, and he fell on The International Emergency Economic Powers Act (IEEPA).
This law essentially says, if the president declares there to be an emergency, he has certain powers to deal with that emergency. The phrase in the statute he relies on to impose tariffs says:
The President may regulate importation or exportation of any property in which any foreign country or a national thereof has any interest.
I won’t go into how stupid this is, but suffice it to say, I have a trade deficit with Walmart. Not because they’re taking advantage of me and creating an emergency, they just have more things I want from them, than they want from me.
This is a global economy, and trade deficits are a natural part of it. They’re certainly not a fucking emergency. Not to mention, this was often done because someone from that country annoyed him. To argue he was somehow methodical and precise in this, would be ridiculous.
So, anyway, the folks at Learning Resources, Inc. buy some shit to sell here in the US that comes from lands far far away, and Trump’s tariffs are making it hard for them to stay profitable. So they dusted off their copy of IEEPA, and were like, “I don’t see the word tariff in this mother fucker anywhere.”
And with that, they decided to challenge our Tariffer-In-Chief for enacting tariffs they believe he does not have the power to enact. They argue that the major questions doctrine (remember that from cases like Loper Bright?) should certainly apply here—that these tariffs affect a shit ton of folks, and it’s a power the president wasn’t explicitly given. Therefore, fuck that asshole.
As per usual, a lower court decided against Trump. Also, as per usual, Trump got his wittle feewings hurt, and appealed. I told you, he really wants to have a little orange tariff baby—he ain’t fucking around.
So off we go to SCOTUS, and to see if they’ll give him an unearned victory.
The Arguments: Team Trump
First up, we have the tender strains of John “Gravel Voice” Sauer. I don’t mean to pick on the guy, but I think him and RFK Jr. went to the same vocal coach.
John Sauer
Mr. Chief Justice, and may it please the Court: On April 2, President Trump determined that our exploding trade deficits had brought us to the brink of an economic and national security catastrophe. He further pronounced that the traffic of fentanyl and other opioids into our country has created a public health crisis, taking hundreds of thousands of American lives. President Trump has declared that these emergencies are country-killing and not sustainable, that they threaten the bedrock of our national and economic security, and that fixing them will make America strong, financially viable, and a respected country again.
Counsel John Sauer
Due to IEEPA tariffs, President Trump has negotiated agreements worth trillions of dollars with major trading partners, including most recently China. Unwinding those agreements, he warns, would expose us to ruthless trade retaliation by far more aggressive countries and drive America from strength to failure, with ruinous economic and national security consequences. In Dames & Moore against Reagan, this Court held that IEEPA’s sweeping and unqualified language grants the President’s actions the strongest presumption of validity and the widest latitude of judicial interpretation. Yet plaintiffs argue that tariffs, IEEPA’s least blunt and most nimble tool, are virtually the only tool that Congress did not grant the President to deal with foreign emergencies. That is wrong. The phrase “regulate importation” plainly embraces tariffs, which are among the most traditional and direct methods of regulating importation. And plaintiffs concede that IEEPA authorizes quotas and other tariff equivalents. The major questions doctrine does not apply here. IEEPA confers major powers to address major problems on the President, who is perhaps the most major actor in the realm of foreign affairs. And the nondelegation doctrine casts no doubt on IEEPA because Congress may assign the President broad authority regarding the conduct of foreign affairs, where he enjoys his own inherent Article II powers. I welcome the Court’s questions.
So he begins with a “ends justify the means” statement. That’s not how any of this works, when it comes to presidential powers.
Then, his tactic is to argue some perceived success of Trump’s tariffs, as if that’s justification. He’s taking a marketing approach to lawyering. Novel, but seems stupid.
Anyway…Sauer picks a tenuous argument that somehow, IEEPA giving the president the power to regulate importation should be meant to include tariffs. This is a stretch, but we’ve been here before with Sauer and Trump in the presidential immunity case, where I thought his arguments looked like trash, and yet that fucker won.
It’s worth noting, he used a pretty logically fallacious argument, saying that somehow the other side is saying that the only tool not available to Trump is tariffs. They absolutely did not say that. Quite the strawman he built there.
He also argues somehow that tariffs are the least harmful way to regulate trade, as opposed to bans or embargos. But that’s also just him giving an unsubstantiated opinion.
There are an infinite number of ideas the Trumpster Fire could have come up with to regulate trade. That’s how new ideas work. Most of them were potentially open to him. So the idea that tariffs were the only tool, is absolutely ridiculous. Even if Trump isn’t exactly a creative genius, he has people around him who could have come up with something new.
Justice Thomas the elder chimed in and asked how the major questions doctrine doesn’t apply here.
Associate Justice Clarence Thomas
He first started by arguing that congress certainly inferred a president to have some major authority on certain issues, apparently setting the stage for why they inferred this major issue to him.
This SCOTUS has almost always struck shit down for “major questions doctrine” reasons in the past. So Sauer attempting to short circuit that philosophy seems ill advised.
He then went on to say that congress infers such major powers, but “keeps an eye on that shit” just in case.
He argued some how, The Constitution’s Article II powers over foreign affairs often give him such massive authority.
What the fuck? Is he stoned?
Before he could get to his next point, Justice Kagan chimed in and was like, “Bro, do you have a single example here? Taxation is an Article I power delegated to Congress, and tariffs are part of that shit. So what article II power is so fucking huge, that you think it justifies him taking Article I powers away from Congress? Are you fucking mad?”
He tried to argue that if shit were all cool and the gang with these foreign entities we trade with, IEEPA wouldn’t apply. But somehow because Trump decided trade deficits were an emergency, he can then use said declaration to do something about that shit, because he has constitutional authority over foreign affairs.
Ballsy!
He went on to say, and I’m not making this shit up…
We don’t contend that what’s being exercised here is the power to tax. It’s the power to regulate foreign commerce. These are regulatory tariffs. They are not revenue-raising tariffs. The fact that they raise revenue is only incidental.
Sauer has balls the size of Jupiter to look at these nine justices dead in the eye, and bold-faced bullshit them.
Justice Sotomayor, wholly unimpressed with Sauer’s argument, chimed in with what is essentially, “Are you fucking nuts?” The power to tax resides with congress. So you argue tariffs are not a tax to circumvent that. But clearly, it’s a fucking tax. It raises revenue for the government, for fuck’s sake.
She then went on to questions his “it’s regulatory” claim. She’s like, “You’re raising revenue, man. If you wanted to limit goods coming from China, you just fucking limit them with quotas or an embargo. Your dumb fucking boss is the one who decided to make revenue off of it.”
Official Portrait of United States Supreme Court Justice Sonia Sotomayor Click for Biography
She also blasted Sauer on the notion that somehow the president just arbitrarily deciding something is an emergency doesn’t all of a sudden give him new powers to enact sweeping taxes. Otherwise, every fucking president would be doing that shit.
Sauer, answering the major questions doctrine point first, somehow felt his iron clad defense was that the court had never applied the major questions doctrine to foreign policy. That’s it. That’s his brilliant fucking response. We’re talking about a tax, which he know kills his whole claim, so he’s trying his level best to reframe it as a foreign policy issue.
Sotomayor decided to hit him with the ole hypothetical. She’s like, “So Biden could have just declared that student loan debt was an emergency, and then slapped a tariff on foreign oil to pay for it? He’s declared an emergency, and it would have went against foreign goods?
Sauer stammered a bit without getting to an answer before Sotomayor, still like a dog with a bone, was like, “I can point to at least 16 fucking laws here where congress wrote in the word tariff or tax into a law when they wanted that to be an option. But they didn’t in IEEPA. So what logic do you have to suggest that they inferred it here when they didn’t explicitly write it in.”
Sauer pointed to a different case (Algonquin) where the court allowed then president Gerald Ford to set licensing fees on foreign goods if the secretary of the treasury argued that a country was importing so much of something that it created a national security issue. This relied on section 232(b) of the Trade Expansion Act of 1974 (TEA). They were concerned about oil imports, specifically.
38th President of the United States – Gerald Ford
But the Algonquin opinion was a narrow ruling, and they even stated that allowing this specific thing shouldn’t lead future courts to give license to the president to do similar shit.
They allowed this because the specific law in question delegated quite specifically, the power to the president to regulate the import of these goods, which they felt must include tariffs, licenses, etc.
Frankly, this is so far the only good argument I’ve heard from Sauer, and it’s still a little sketchy because the court literally said they should not consider this ruling to allow broader presidential authority, which is exactly what Sauer is doing here.
Also worth noting, the Trade Expansion Act of 1962 (TEA) they’re citing, during peacetime, requires the Secretary of Commerce to do a formal investigation and show a national security risk, before the president can impose fees on those goods.
Trump has used this law to put tariffs on steel, aluminum, and oil before, so he has relied on it as well as IEEPA he’s using now. However, many of the tariffs Trump has imposed are political in nature, and therefore wouldn’t fall under TEA, if you were wondering.
Justice Jackson took issue with Sauer wanting to compare the Trading With The Enemy Act (TWEA)’s interpretation to IEEPA.
Associate Justice Ketanji Brown Jackson
Congress enacted this legislation (IEEPA) with the intent of preventing the President from having unlimited powers in this area, and you’re asking us to now interpret that statute consistent with an understanding that Congress wanted to allow the President to do pretty much whatever he wanted in this area.
You see, TWEA was passed in 1917—WW1 times, but as time went on, congress felt it gave the president too much power. So IEEPA, passed in 1977, was meant to restrain some of that, and better define what the president could and could not do during an economic emergency.
Sauer argued that the phrase “regulate importation” must carry with it, the power to impose tariffs. He also places a lot of weight that the duty is due “at the border” as if to say, it’s not a tax on the people, because it occurs at the border, not within the border. Hint: That’s not a thing.
Justice Barrett was next to hit Sauer with a question. She kept it simple. She asked:
General Sauer, can I just ask you a question? Can you point to any other place in the Code or any other time in history where that phrase together, “regulate importation,” has been used to confer tariff -imposing authority?
Associate Justice Amy Coney Barrett
Sauer really stumbled on this one, as he could only cite the court’s rulings on Algonquin, and similar instances, but not where Congress specifically conferred this power with the “regulate importation” text.
After citing precedents several times, even Sotomayor had had enough, and point blank asked him:
Could you just answer the Justice’s question?
But all he had was unrelated precedents. He kept arguing that foreign tariffs are regulating imports, as if somehow he can’t believe they don’t understand that.
Again, IEEPA (1977) amended TWEA (1917). As you might imagine from the name, this was about a president, during war time, being able to ban imports from someone who’s our enemy. But then in 1933, FDR got it amended to broaden it from “only during war time” to “during any national emergency.” Let’s just say, presidents abused that shit, so IEEPA was formed to reign it back in. This was what Justice Jackson was complaining about above.
So congress did a little “copy and paste” shit with TWEA to IEEPA. To that point, counsel Sauer argued:
Let me put it this way: You look at all nine verbs together and you’re looking at a spectrum of powers from the most sort of negative, “nullify,” “block,” “prohibit,” “void,” to the most affirmative, “direct,” “compel,” and then also powers in between that are more intermediate, “regulate,” “investigate,” and so forth. So the natural common -sense inference from that grammatical structure is the intention of Congress to sort of cover the waterfront.
So his argument is that because congress used that same language in IEEPA, surely they still meant for the president to be able to impose tariffs, and with all the negative, position, and ambiguous words, he can’t see how tariffs aren’t just a part of that.
But in response to this, Justice Kagan said:
Well, possible, General, possible, except Congress did take out a whole bunch of verbs. It took out “confiscate,” “vest,” “hold,” “use,” “administer,” “liquidate,” “sell,” which were in the prior statute. And crucially, what it doesn’t have here is anything that refers to raising revenue. So it has a lot of verbs. It has a lot of actions that can be taken under this statute. It just doesn’t have the one you want.
Justice Sotomayor chimed in with:
Official Portrait of United States Supreme Court Justice Sonia Sotomayor Click for Biography
I’m sorry, counsel, it doesn’t say “regulate tariffs.” It says “regulate importations and exportations.” You agree that they can’t put tariffs or taxes on exportations constitutionally?
He agreed.
So she was like, “Then why the fuck should we assume it means to confer the power to tariff imports?”
Again, his only argument is that regulating imports must include the power to tariff.
Sotomayor, still skeptical asked:
Why is it that Congress has always used “regulate” and “tax” together in the Code? Are you telling us that with respect to its use of “regulate” in other statutes, the taxing reference is superfluous? They didn’t need to do that?
His argument was that going back to TWEA and it’s power to tariff, there’s pedigree here.
But IEEPA replaced TWEA because TWEA was being abused. They were literally reigning in presidential power. So by what logic would such a huge power like tariffs somehow be casually left in place, even though they didn’t put that language in there?
Justice Roberts really hammered Sauer on the idea that tariffs are taxes, and it seems pretty sketch that congress just gave that away to the president, when IEEPA was intended to reign in presidents.
And all this is somehow based on the idea that imposing tariffs is the main way of regulating imports? It’s just not. There’s embargos, quotas, product bans, and any new shit the president could think up. Sauer’s argument that tariffs is the only way, is pretty ridiculous.
Sauer argued that revenue raising was just “incidental.” That the goal, is to get people to stop buying foreign goods and only buy American. In that case, no revenue would be raised, making these tariffs regulatory.
Justice Sotomayor jumped in and asked, “if that’s your fucking goal, then why the fuck didn’t that orange prick just bar importations altogether. If that’s his fucking goal, embargos and bans are much more effective than tariffs. It literally fixes the problem overnight.”
Justice Jackson then pointed out that TWEA, via a senate report, explained that it was trying to control or freeze property transactions where a foreign interest was involved. It didn’t say a fucking thing about raising revenue. She also points out that this was a wartime provision, to prevent trading with an enemy country. How the fuck then, does this justify tariffs on our friends?
Sauer again reiterated it wasn’t about raising revenue, even though that’s all Trump talks about it being for. Then went on to say, that quotas are basically the same as tariffs, which they’re certainly fucking not. I think his tactic of assuming the justices are morons isn’t going to favor him here.
If I may riff on this a bit. He keeps arguing quotas were part of the language, and they're similar to tariffs, so he doesn't see the harm. This is stupid. quotas just limit amounts of goods that can come in. Tariffs add taxes to goods that are paid by the American people. The idea that Sauer and other Trump cronies refuse to acknowledge that, is insultingly stupid.
Up to now, most of the arguments were statutory. Meaning, does the IEEPA statute give the president the power to enact tariffs?
But justice Kagan then moved on to a constitutional question about whether congress can delegate it’s power to tax to congress.
Associate Justice Elena Kagan
This is sometimes referred to as the nondelegation doctrine. A philosophic principle that basically says congress cannot give away it’s powers to the president, without clear guidelines.
Sauer and Kagan had quite the lengthy exchange here, but ultimately he relies on the idea that this is merely about foreign affairs, not taxation. Again, hitting the ole, “It’s a regulatory tariff, not a tax” argument.
Next up was Justice Gorsuch. I’m just gonna say this now, I think he takes the major questions doctrine, and the nondelegation doctrine pretty damn seriously. He launched into a very polite tirade, which included this…
What would prohibit Congress from just abdicating all responsibility to regulate foreign commerce, for that matter, declare war, to the President?
Sauer responded that he didn’t think they could do that, and Gorsuch literally just responded, “Why not?”
He’s not wrong. That’s kinda Sauer’s argument.
Sauer tried to go back to IEEPA and it’s “limitations” which are kinda a joke. He’s talking about how the president has to declare an emergency first, and shit like that. But the executive branch controls that, so there’s no real guardrails on that shit. The president can just call it an emergency for whatever reason they want, and they’re off to the races. There’s no limits on how much he could tariff, as evidenced by his 100%+ tariffs he hammered on some countries, nor is there a limit to how long the tariffs can be in place, in IEEPA, remember, tariffs aren’t mentioned at all.
So it’s a pretty ridiculous argument from Sauer, which he also made with Justice Sotomayor, who pointed out that there’s nothing really stopping the president from declaring an emergency.
But Gorsuch nipped that shit in the bud. He responded…
I’m not asking about the statute. General. I’m asking for your theory of the Constitution and why the major questions and nondelegation, what bite it would have in that case.
He wants to know if congress has that right to delegate such power at all in any statute. This is a swing for the fences on the nondelegation clause, which basically says Congress can’t delegate it’s constitutional powers at all.
Gorsuch then asked:
You’re saying there’s inherent authority in foreign affairs, all foreign affairs, so regulate commerce, duties, tariffs, and war. It’s inherent authority all the way down, you say. Fine. Congress decides tomorrow, well, we’re tired of this legislating business. We’re just going to hand it all off to the President. What would stop Congress from doing that?
Associate Justice Neil Gorsuch
Counsel Sauer argued that this would be too far. That congress can delegate within certain parameters, they can’t just give it away entirely.
Gorsuch then asked:
Okay. You emphasize that Congress can always take back its powers. You mentioned that a couple of times. But don’t we have a serious retrieval problem here because, once Congress delegates by a bare majority and the President signs it—and, of course, every president will sign a law that gives him more authority—Congress can’t take that back without a super majority. And even—you know, even then, it’s going to be veto-proof. What president’s ever going to give that power back? A pretty rare president. So how should that inform our view of delegations and major questions?
The reason justice Gorsuch argues they’d need a super majority, is because presidents love power. Any attempt to change the law, even if it passed the house and senate, would likely get vetoed by any president who wanted to exploit it. So there would then need a super majority to overcome a presidential veto if congress tried to take back some of IEEPA’s delegated powers.
Gorsuch is playing 3D chess over here.
Sauer conceded this point, but essentially argued it’s not impossible. Especially if the sitting president agrees with the change they’re trying to make, even at the expense of their own power. He cites in 2023 where congress ended the 2020 declaration from Trump that COVID was an emergency, and Biden signed it.
It’s not a horrid example, but it’s not a great one, either. COVID was no longer a pandemic, and if Biden had tried to exercise some huge authority to combat COVID at that point, it would have been political suicide. So no reason not to let that one go, from Biden’s perspective.
Gorsuch snuck in another principle on him when he asked if all tariffs were foreign affairs. I think the heart of this question is to determine if there’s some conflict between a president’s job in foreign affairs versus congress’ job in levying taxes.
Associate Justice Neil Gorsuch
Sauer agreed they largely are, while arguing that there’s a spectrum, so to speak, and that regulatory tariffs are more foreign affairs related, and revenue raising tariffs are more domestic policy, and that was the end of that.
Justice Kavanaugh wanted to know, why haven’t any other previous presidents, since IEEPA was enacted, used it for tariffs.
Counsel Sauer said they reviewed 69 emergencies. (Side note: I think Sauer just had a prop bet with his buddies at the firm to see if he could sneak in saying 69 during oral arguments.) None of them were really the kind of emergency a tariff would solve, in his estimation, as opposed to this trade deficit “emergency,” which seems well-suited for tariffs.
Justice Barrett asked Sauer to elaborate on Gorsuch’s question about getting power back. You see, the 2023 example was a case where COVID was clearly no longer an emergency, so Biden had no reason to continue it.
But in this case, Barrett is saying, if we had a president who was relying on IEEPA like President Trump is, surely you understand congress could never get him to sign a law banning him from using it the way he wants to use it, right?
He largely seemed to not want to argue against this, without conceding, since it doesn’t help him.
Then justice Barrett asked about why Trump needed to attach so many tariffs to so many countries, including many who are our friends like Spain and France.
Associate Justice Amy Coney Barrett
He answered by saying they’re so broad, because the emergency is so broad. He didn’t cite any data to support this, I guess we’re just supposed to take Trump’s word on it.
The Arguments: The Petitioners – Learning Resources Inc. (and other Private Parties)
Up next is Counsel Neal Kumar Katyal, who opened with this.
Thank you, Mr. Chief Justice, and may it please the Court: Tariffs are taxes. They take dollars from Americans’ pockets and deposit them in the U.S. Treasury. Our founders gave that taxing power to Congress alone. Yet, here, the President bypassed Congress and imposed one of the largest tax increases in our lifetimes.
Many doctrines explain why this is illegal, like the presumption that Congress speaks clearly when it imposes taxes and duties and the major questions doctrine.
But it comes down to common sense.
It’s simply implausible that in enacting IEEPA Congress handed the President the power to overhaul the entire tariff system and the American economy in the process, allowing him to set and reset tariffs on any and every product from any and every country at any and all times.
And, as Justices Gorsuch and Barrett just said, this is a one-way ratchet. We will never get this power back if the government wins this case. What president wouldn’t veto legislation to rein this power in and pull out the tariff power?
IEEPA is a sanction statute. It’s not a tax statute where Congress gave away the store. Congress knows exactly how to delegate its tariff powers. Every time for 238 years, it’s done so explicitly, always with real limits.
IEEPA looks nothing like those laws. It uses “regulate,” which Congress has used hundreds of times, never once to include tariffs. And it lacks the limits of every other tariff statute. And that is why, even though presidents have used IEEPA to impose economic sanctions thousands of times, no president in IEEPA’s 50-year lifetime has ever tried to impose tariffs.
Neal Kumar Katyal
And the President bypassed statutes that do address tariffs, like Section 122 for large and serious trade deficits, but that imposes a clear guardrail, 15 percent cap, 150-day limit. This is Youngstown at its lowest ebb. If the government wins, another president could declare a climate emergency and impose huge tariffs without fines without floors or ceilings, as Justice Gorsuch said. My friend’s answer?
This administration would declare it a hoax. The next president may not quite say that. This is an open-ended power to junk the tariff laws and is certainly not conveyed by the word “regulate.” I welcome the Court’s questions.
Justice Thomas asked about how embargoes are somehow OK, but tariffs aren’t.
Counsel Katyal advised that tariffs are taxes, they raise revenue. Embargos are a hard stop in trade altogether. Maybe they have similar goals, but very different actions.
Justice Roberts was up next, and asked about the fact that tariffs are foreign facing, and that foreign affairs is the purview of the president, not congress. So should they support Trump’s case here?
Counsel Katyal agreed with most of that, but stated that the constitution never gave the executive the power to raise revenue, even while at war. He then quoted Justice Robert Jackson from a 1952 case, Youngstown Sheet & Tube Company v. Sawyer, where President Truman, in order to fend of a labor union strike he felt would create a national emergency, attempted to seize control of the nation’s steel mills. In a 6-3 loss, Truman was advised to go fuck himself.
In that opinion, Justice Jackson said,
Emergency powers tend to kindle emergencies, so it’s essential the public may know the extent and limitations of the powers that can be asserted and persons affected may be informed from the statute of its rights and duties.
His point being, we can’t just let the president declare an emergency, and then citing that emergency, do whatever the fuck he wants. Otherwise, every president will declare everything an emergency, then do whatever the fuck they want. As an example? Donald J. Trump, and his bullshit “emergency” tariffs.
Justice Kavanaugh wanted to understand if Katyal agreed that if congress had specifically said the president could issue tariffs in IEEPA, that it’s constitutionally permissible.
Associate Justice Brett Kavanaugh
Counsel Katyal agreed, assuming there are limits that are clearly defined.
He didn’t agree that president could just put a 300% tariff on someone and call it an emergency, for fuck’s sake.
He pointed out that Trump imposed a 39% tariff on Switzerland, and not only are they an ally, they actually buy more goods from us than we do from them. So how the fuck does that make sense as a trade emergency?
Justice Alito, seeming skeptical of Katyal’s argument asked, “What if Congress told the president to regulate parks. A park is particularly busy. So could the president have them charge an admission fee to reduce visitor counts?
He said, if it raises a fee, then no. Congress needs to explicitly give him that power.
Alito then went on to show the power of logic has left him by asking an inane question. He asked, what if they’re not revenue raising tariffs? His example was, a tariff is enacted but not imposed until 90 days if the country doesn’t comply. So if they do, no tariff is collected.
How the fuck does that work? He’s asking if it’s OK as long as no one ever violates it? That’s fucking stupid. I hate to be disrespectful to Alito, I’ve been there where I couldn’t come up with a great example, but still, it’s a pretty nonsensical question.
Associate Justice Samuel Alito
Counsel Katyal pointed out that Trump’s brief, and statements publicly suggest it’d raise 4 trillion smackaroos. I’d call that revenue.
He went on to point out, that if the president is saying a trade imbalance is an emergency, then he can enforce quotas, which would be more precise than tariffs.
So I know you were thinking I was overreaching by saying Alito was getting inane in his arguments, but folks, he wasn’t done. He then asked this:
You say that these executive orders do not address an unusual and extraordinary threat. I understand that argument. Suppose that the facts were that there was an imminent threat of war, not a declared war but an imminent threat of war with a very powerful enemy whose economy was heavily dependent on U.S. trade. Could a president under this provision impose a tariff as a way of trying to stave off that war, or would you say, no, the president lacks that power under this provision?
What the fuck is he even talking about? How does this scenario make any sense? For the love of God, Alito is losing it. I don’t know if this is just him really trying to support Trump, or if he’s losing his marbles, but Alito is compromised, man.
How the fuck could it be that an enemy of the US is about to go to war with us, but they sell goods to us, and so we impose a tariff against them, and that somehow gets them to like us more and not start a war? For fuck’s sake, if this hypothetical were true, an embargo would be the only fucking lever you’d pull. This is insane, from Alito.
Katyal again pointed out that the things IEEPA specifically gives him the authority to do aren’t raising revenue, where tariffs do.
He then hit Alito with a compelling and accurate response, IMO. He said:
If you ruled for us and the president says, I need this power, he could go across the street to Congress tomorrow and get it by a simple majority through reconciliation. But, if you vote for them, this power, as Justice Gorsuch said, as Justice Barrett said, is going to be stuck with us forever.
Neal Kumar Katyal
He’s absolutely right here. Again, the president is unlikely to sign a statute congress passes, which takes power away he wants to exploit from him. So they’d need a veto-proof majority. Therefore, getting congress to give him that power explicitly, is the more logical path.
In a response to a question from Justice Thomas who wanted to know if the president could impose tariffs as a means of getting a country to free an American hostage.
Katyal said, “The President is seeking the power to set aside all of our trade treaties unilaterally under the word “regulate.” I just don’t think it can bear that weight.”
Justice Alito went on to ask about other statutes that authorize tariffs, seemingly addressing the constitutional issue. But Katyal responded:
That’s something that can be decided by other courts at other times. As these folks come to the Court, as the government comes to the Court today, they’re citing one statute and one statute only, IEEPA, and we submit to you it doesn’t come even close to authorizing these worldwide tariffs that they’re seeking today.
This suggests he’s not really raising the constitutional nondelegation issue at all.
In a particularly feisty exchange with Justice Kavanaugh about previous times presidents imposed tariffs, Katyal points out that in all those other instances, the statutes which gave the president the authority to impose tariffs, there were clearly outlined limitations. Essentially, that congress would never give the president the limitless power to tariff, and if they did, surely they’d say so. So the lack of limits suggest, they weren’t intending for the president to be able to do that, because they’re always worried about that fucker going crazy.
Associate Justice Brett Kavanaugh
Justice Barrett asked if he agreed, since licensing is outlined in IEEPA, could the president impost a licensing fee?
Counsel Katyal said:
Not a fee. So I should have said this earlier, but license is different from a licensing fee. IEEPA and TWEA authorize licenses, not license fees. And no president has ever charged, to my knowledge, fees under those two statutes for the licenses. So fee is impermissible. License is okay.
He then again specified that if there was a licensing fee to cover costs of the licensing, that might be OK, because it’s not revenue raising. But Trump pointed out he expects the tariffs to raise 4 trillion dollars.
Justice Barrett asked about refunds, if Katyal were to win, of all the tariffs already collected.
When this case started, Katyal’s side asked for an injunction on the tariffs, because if Katyal’s side wins, refunding those tariffs could be quite the fucking mess.
But the government responded like this.
They then said, that refunds would be easy-peasy if they lose, so no reason to put a pause on them.
But now that they’re here in court, they’re acting like the refunds would be a huge burden, and therefore that’s why they should win. So that’s surely hypocritical.
The Arguments: The Petitioners (The States)
Last up is Solicitor General for Oregon, Benjamin Gutman who simply opened by saying IEEPA licenses never were fees. It was just a way to carve an exemptions for humanitarian reasons, or something like that. Clearly not revenue raising.
So an argument you’ve heard from the president and his peeps, was also put forward by Justice Kavanaugh. He asked, how the fuck could it make sense that the president could launch an embargo, which shuts down trade entirely, but a 1% tariff is somehow a problem. Sure one is a more major act than the other.
Deputy Attorney General of Oregon, Benjamin Gutman
I’d argue that tariffs are taxes on the American people, embargos just stop the trade altogether. But it doesn’t inherently cost the people any money.
But Gutman just argued that there’s never been another time where “regulate” on it’s own, was used to justify tariffs. All other instances, they used language to suggest revenue-raising efforts were allowed.
He went on to clarify to Justices Kavanaugh, Kagan, and Jackson, who all asked the same question in a roundabout way, that the reason they are different, is that with tariffs, there’s something in it for the government. For embargos, there isn’t. Sure, maybe a 1% tariff is less impactful than an embargo, but still, the government doesn’t benefit from an embargo, and the president doesn’t now have a new source of revenue to potentially exploit.
Justice Jackson, seemingly arguing for SG Gutman instead of questioning him responded:
And it would make perfect sense, I think, in a time of emergency for many of the reasons that General Sauer pointed out that Congress would want the President to have the kind of authority that is imposed when you are embargoing things, when you are stopping the trade, when you are saying, you know, for emergency reasons we’re not letting any of this product come in. I mean, sure, that’s a big deal, but the nature of it makes sense in terms of an emergency. I think what you’re saying is that the idea that the government would use its authority to be raising revenues in this situation is a different kind of power.
Associate Justice Ketanji Brown Jackson
Gutman agreed.
Justice Kavanaugh, lacking imagination, again argued that it seems nonsensical that a president could do an embargo, but not a small tariff.
The problem with this argument, and the reason I say he lacks imagination, is that the law doesn’t just allow embargos. It allows licenses and quotas, too. So Kavanaugh is ignoring the other tools that are there, to make this ridiculous false dichotomy argument that it’s the nuclear option or nothing, when it absolutely isn’t.
Counsel Gutman agreed with me.
Justice Sotomayor took the gloves off and attacked the president’s pettiness by pointing out the 10% he put on Canada because it hurt his feelings that it ran an ad about tariffs, and a 40% tax on Brazil because they prosecuted a friend of his. So this is why those powers must be restrained.
The Arguments: Respondent’s Rebuttal
Counsel Sauer had one final chance to rebut the other two, and so he went on a long diatribe, talking about how the tariffs did bring some countries to the negotiating table, and therefore they achieved the goals of resolving the emergency Trump declared under IEEPA.
The problem with this, is again, it lacks imagination. Trump didn’t try an embargo, but I’m sure that would have worked as well. Trump didn’t try quotas, but that could have also been effective. Like Kavanaugh, he made a false dichotomy argument, as if somehow tariffs were the only effective option.
The Opinion of the Court
Alrighty, place your bets, folks.
And the winner is…drumroll…Learning Resources Inc. et al., thanks to Justices Roberts, Kagan, Sotomayor, Barrett, Gorsuch, and Jackson.
So listen, there are no less than six fucking opinions on this ruling, and I’m not going to cover all of them entirely, but the one that matters is from the chief, himself.
He wrote:
Based on two words separated by 16 others in Section 1702(a)(1)(B) of IEEPA—“regulate” and “importation”—the President asserts the independent power to impose tariffs on imports from any country, of any product, at any rate, for any amount of time. Those words cannot bear such weight.
Chief Justice John Roberts
He argues that the tariffs Trump imposed were so limitless, that clearly a tacit reference to regulate imports couldn’t have allowed for something so impactful, especially during peacetime.
He continued that SCOTUS rarely allows the president to exercise power that isn’t explicitly and clearly granted to him by statute. He also reiterates Katyal’s argument that when congress does give such powers to the president, it does so with limits and guidelines—certainly not just saying the executive can regulate imports, and nothing else.
He then wrote:
Against this backdrop of clear and limited delegations, the Government reads IEEPA to give the President power to unilaterally impose unbounded tariffs.
On this reading, moreover, the President is unconstrained by the significant procedural limitations in other tariff statutes and free to issue a dizzying array of modifications at will. All it takes to unlock that extraordinary power is a Presidential declaration of emergency, which the Government asserts is unreviewable. And the only way of restraining the exercise of that power is a veto-proof majority in Congress.
That view, if credited, would represent a transformative expansion of the President’s authority over tariff policy, and indeed—as demonstrated by the exercise of that authority in this case—over the broader economy as well.
It would replace the longstanding executive-legislative collaboration over trade policy with unchecked Presidential policymaking. Congress seldom effects such sea changes through “vague language.”
Justice Roberts also cited that there was no other time IEEPA was used to impose tariffs, as was discussed at length during oral arguments, and pointed to other statutes that had been used by presidents to impose tariffs. I believe he was pointing out that other statutes have limits, guardrails, etc., which is the likely reason Trump didn’t use them—he wants the power to change them on whims.
He also argued that the sheer magnitude of what Trump had done, should give the courts pause. They should really consider whether congress clearly meant to infer such power. Since it’s not even mentioned IEEPA—safe to say they didn’t.
2025-2026 Supreme Court of the United States
He then addressed the “emergencies beget emergencies” concern, with which he agreed.
Trump’s side tried to argue that in times of emergency, the president needs broad sweeping powers to act. Instead, Justice Roberts suggested that in times of emergency, when the president is executing emergency powers, the courts should be increasingly skeptical, and require clear, inarguable authority powers were granted, not a single word, like “regulate,” that could just as easily be argued didn’t mean what the president says it means, such as in this case.
He then said, in a shot across the bow of Alito, Thomas, and Kavanaugh, who usually side with the major questions doctrine, but carved out an exception here:
There is no major questions exception to the major questions doctrine.
The dissent’s argument was that because the constitution gives the president dominion over foreign affairs, and tariffs are arguably foreign affairs, that somehow this means the major questions doctrine wouldn’t apply.
However, tariffs are paid for by American’s, no matter what Trump’s team tries to argue. Imported goods show up in America, and tariffs are paid for by the American companies who bought them, and then that expense is baked into the price that American consumers pay for them. So while there’s a foreign affairs component to it, the goal of tariffs isn’t to prevent people from exporting to the US, it’s to get Americans to stop buying imports, and that is not a foreign affairs issue, that’s a “government picking winners and losers in a free market” issue.
In his concurring, but separate opinion, Neil Gorsuch wrote this, and I think it’s so good, I’m going to post it without edit.
Associate Justice Neil Gorsuch
For those who think it important for the Nation to impose more tariffs, I understand that today’s decision will be disappointing.
All I can offer them is that most major decisions affecting the rights and responsibilities of the American people (including the duty to pay taxes and tariffs) are funneled through the legislative process for a reason.
Yes, legislating can be hard and take time. And, yes, it can be tempting to bypass Congress when some pressing problem arises. But the deliberative nature of the legislative process was the whole point of its design.
Through that process, the Nation can tap the combined wisdom of the people’s elected representatives, not just that of one faction or man. There, deliberation tempers impulse, and compromise hammers disagreements into workable solutions.
And because laws must earn such broad support to survive the legislative process, they tend to endure, allowing ordinary people to plan their lives in ways they cannot when the rules shift from day to day.
In all, the legislative process helps ensure each of us has a stake in the laws that govern us and in the Nation’s future. For some today, the weight of those virtues is apparent. For others, it may not seem so obvious.
But if history is any guide, the tables will turn and the day will come when those disappointed by today’s result will appreciate the legislative process for the bulwark of liberty it is.
One of Trump’s most contentious policy issues has been tariffs. His argument is that the United States has trade deficits with many other nations, and that this is inherently problematic.
Here’s the issue: it’s not a problem. It never has been.
Think about this: you have a trade deficit with your grocery store. You probably buy from them all the time, but they don’t buy anything from you. Is that a problem? Of course not.
The United States is the largest economy in the world. We have trade deficits with other nations because we have more money to buy their goods than they have to buy ours. Additionally, their goods are often cheaper, while ours are relatively expensive. This is basic capitalism—money flows to those producing the best products at the best prices.
As a result, citizens of other countries—who generally have less disposable income than Americans—are unlikely to purchase U.S. goods even if they wanted to.
President Donald Trump
But let’s discuss problem-solving more broadly.
Imagine I gave you a math problem: 2+2. If you’re unfamiliar with math, you might think the problem is 2-2. If you don’t understand the addition symbol, you’ll never get the right answer. Accurately identifying the problem is essential for finding effective solutions—this is where Trump fails spectacularly.
Once we understand that the reason we don’t export more is that U.S. goods are too expensive compared to those from other countries—and recognize that Trump’s policies haven’t addressed this—it becomes clear that he isn’t solving the problem. In fact, he is likely making it worse, which is why so many economists are predicting a recession.
As president, Trump can influence U.S. policy but has limited power over other nations, aside from imposing tariffs.
This reflects a larger issue: a lack of self-awareness on a national scale. Trump and his supporters fail to consider that the problem may lie within the United States itself. They assume that American manufacturing is flawless and that other countries are taking advantage of us. This perspective is fundamentally flawed.
Global markets are capitalism at the highest level. Other countries are competing and winning because the U.S. is repeating past mistakes—allowing prices to rise due to poor policies, thereby pricing ourselves out of the market. People aren’t willing to pay Mercedes-Benz prices for Volkswagen-quality goods.
If Trump understood that the real issue is the cost of American goods, he would focus on reducing those costs. He could:
Tighten regulations on labor unions to prevent the artificial inflation of labor costs.
Collaborate with Congress to lower the U.S. corporate tax rate, which remains similar to other developed countries. Or better yet, eliminate it altogether. If we want to compete, let’s compete!
Address the restrictive regulatory environment by working with Congress to repeal unnecessary statutes that increase production costs.
Instruct his administration to repeal regulations that add cost without providing clear value.
U.S. Congress
These measures could significantly reduce the cost of U.S. goods. It’s worth noting that generally, no company wants to manufacture outside their home country. The language barriers, compliance costs, shipping challenges, etc., are all very problematic and costly. So improving the above points at home are what would encourage more investment in U.S. production—not just raising the cost of foreign goods.
Trump’s approach is to increase the cost of imported goods to make them comparable in price to U.S. products, under the assumption that this will boost domestic spending and investment. It won’t. Americans generally prefer U.S. goods but often can’t afford them. Raising the cost of alternatives won’t change that.
Companies won’t invest in the U.S. until we fix the issues that make it expensive to do business here, either.
In my experience working for an American professional tool company, we offered both domestically produced and imported tools. The U.S.-made sets often cost around $500+, while comparable sets from Taiwan were priced between $150 and $200. Customers wanted the American-made sets, but most couldn’t afford them and bought the imported ones. If the cheaper options disappear, customers simply won’t buy anything.
It’s also important to note that imported goods support the U.S. economy because they are sold by American vendors. If affordable imports disappear, stores like Walmart will struggle to stock affordable products, leaving low-income families with fewer options.
The global economy naturally directs production to those who can make the best products at the lowest prices. This isn’t about tariffs—it’s about culture, resources, and work ethic.
Work ethic plays a role, as many young Americans are increasingly reluctant to take on labor-intensive, low-paying jobs. We’ve instilled the belief that everyone must go to college, and that low-skilled jobs are beneath them. As a result, fewer people are willing to work in factories.
Trump’s failure to address these fundamental issues has left the economy struggling. Economists are predicting a recession, inflation remains high, and Trump’s focus on tariffs is not addressing the root causes. Meanwhile, his conflicts with the courts and disregard for the Constitution are eroding support among independent voters.
The hope is that as more Americans, including his supporters, recognize the flaws in his approach, Trump will feel compelled to change course. His ego needs to be fed, and as more Americans turn against him, it’s the surest way to get him to embrace change in himself. For the sake of the country, I certainly hope we have a serious culture shift, soon.
When I think Trump is corrupt or willfully doing the wrong thing, I’m pretty harsh in my criticisms of him on “the socials.”
If he’s answering honestly here in this PBS video, then this is not so much me bashing him, as it is me being concerned about him being our president.
To give context, he is asked about the Supreme Court ordering him to effectuate the return of suspected gang member, and known illegal immigrant Kilmar Garcia (Read about this story here, for the unfamiliar), and he replies by saying that the people elected him to deport these folks, and the courts are holding him back from doing it.
So then she asks, “Don’t you need to uphold the Constitution of the United States, as president?”
He responds, “I don’t know. I have to respond by saying again, I have brilliant lawyers that work for me. And they are going to, obviously follow what the Supreme Court said. What you said, is not what I heard the Supreme Court said. They have a very different interpretation.”
It should be concerning he doesn’t understand the constitution, and a court order, at such a basic level, when he’s encountered so many of them at this point.
Kilmar Arbrego Garcia
If you follow Trump and his legal issues, as covered by legal scholars and analysts alike, you’ll know he has a history of losing good lawyers.
A good podcast on this subject is called Serious Trouble, hosted by former federal prosecutor, Ken White. If you’re interested in learning law as it pertains to current issues, it’s really hard to think of a better podcast, and it’s largely apolitical.
It is often very critical of Trump, but don’t mistake this as being partisan. It’s quite possible to be a Republican ideologically, and still not like Trump, or to have apolitical reasons for disliking him.
I don’t think Ken White is a Republican, but the point is, he rarely delves into political opinions or questions, just legal analysis. So be sure to check your biases when listening, and just learn.
Former prosecutor Ken White
Anyway, on the issue of Trump losing good lawyers, an analogy would be the support of capitalism many give, and how it works.
If someone were a horrid employer, they’ll lose good employees, either because the employees won’t want to work for them, or the employer will ask them to do things that they know are wrong or immoral. The employee will, of course, refuse to do these directives, which then prompts the bad employer to fire them because they think the employee is being insubordinate, when the reality is the employer is the one out of line asking them to do those things in the first place.
This is precisely the scenario people describe when it comes to Trump and his lawyer troubles. His lawyers either fire Trump as a client, or he fires them, often after they refuse to do something they consider illegal, which could get them disbarred or worse. So Trump ends up with mediocre and ethically challenged lawyers as a result. Not to mention, he seems to have a penchant for hiring lawyers who are subjectively attractive females, for what I assume are not entirely because of their skills at lawyering.
Christina Bobb (Left), Lindsey Halligan (Center), Alina Habba (Right)
By all accounts, he’s been surrounded most of his life by employees or family members, who’ve all enabled him. It’s led him to believe he’s smarter than he is, because he doesn’t have anyone close to him to tell him he’s wrong or out of line growing up.
Penn Jillette talked about this on his podcast, Penn’s Sunday School. Penn was asked to do an interview for a book about Trump. Out of curiosity, he asked the writer, “What do his friends say about him?”
The writer responded that he hadn’t really been able to find any friends to interview. Just employees, and family members.
Penn Jillette
As a result of this sheltered and unchallenged life, it stands to reason he was turned into an entitled jerk who thinks he’s always right, and thinks anyone disagreeing with him is his enemy.
History is littered with stories like this of boy kings, for instance, who would have servants killed for just making eye contact with them.
As much as I find Trump offputting and reprehensible, I do find it sad that this is how he was brought up and how he turned out.
Maybe he was born a sociopath and was always going to be the basic person he is. But maybe he was raised so poorly, that it made him the bad person he is, and things could have been so much better for him with a better upbringing.
Either way, the idea that he doesn’t understand the Constitution in such a simple sense, is very concerning, when it’s his job to uphold it. With some of his other off-the-wall ideas, like changing the name of the Gulf of Mexico, reopening Alcatraz, or his tumultuous application of tariffs, I think it’s fair to ponder the idea that he’s starting to suffer dementia, like Biden and Reagan before him.
He’s Biden’s age—after all—and older than Reagan was during his presidency, so it’s not a crazy notion.
Either way, I think for the sake of our nation, it’s time for Republicans to move on from Trump as soon as possible before more bad things happen, either through corruption, arrogance, ignorance, or senility.
“Right to try” laws have become very contentious in recent years. Because we here at Logical Libertarian pride ourselves on being logical, as you can imagine, our position is that there are two opposing sides of the debate, and the truth is probably somewhere between these ideologies.
Both sides have very valid points, and should be considered. Sadly, what doesn’t happen, is both sides acknowledging the validity of the opposition’s argument, which then might lead to an acceptable solution they both agree is best.
So let’s explore…
First, in one corner, we have the proponents. These are largely libertarian-minded folks like myself. They rightly point out that the FDA approval process for new treatments or medicines is painfully slow.
They’re correct of course, but this is for good reason. When it comes to someone’s life, drugs and treatments shouldn’t be approved willy-nilly. If someone dies because a drug or treatment was harmful, we can’t exactly undo that.
But there’s another problem, even if the drug or treatment is benign.
Where these proponents are correct, are situations where someone has a treatment resistant issue, or an issue with no approved treatment, they’re potentially suffering from a terminal illness, and they’re open to try anything at this point to save their life. In this scenario, it seems to make sense to allow them to try unapproved treatments, because there’s simply no better option available.
I’m very sympathetic to this argument.
In the other corner, we have scientists. They argue that by allowing people to use these unapproved treatments, we’re opening the door to charlatans and snake oil salesmen, scamming desperately ill folks who are grasping at straws.
They’re 100% right that this does happen, and will happen at a higher level, if we allow “right to try” laws to pass unilaterally.
The FDA approval process is slow for a reason. There are multiple steps to show efficacy in non-humans, safety in humans, then eventually controlled studies with large sample sizes in humans. After that, it takes years to potentially understand the long term effects of these treatments.
Until scientists understand the mechanisms, outcomes, drawbacks, side effects, etc., giving doctors the green light to try these things, could do much more harm than good.
In a third corner, is me. A non-doctor, philosophical libertarian, who thinks there might be some middle ground which can be found.
My first argument is that unapproved treatments can be placed into four buckets:
Treatments with no studies/data supporting or rejecting them
Treatments with studies/data supporting them, but not enough to reach FDA approval yet
Treatments with conflicting studies supporting and rejecting them
Treatments with studies/data rejecting them
With these buckets, “right to try” laws could have different rules for each, that allay the fears of scientists, while ensuring the rights of people to try potentially promising treatments are also preserved.
Just to disclose my own bias, I think there should be a constitutional amendment forbidding government to get in between a patient and their licensed physician. When I say licensed physician, I’m referring to someone who went to medical school and has a license to practice medicine. Not homeopaths, naturopaths, chiropractors, or others who don’t have a license to practice medicine, but attempt to pass themselves off as “doctors.” I find such behavior reprehensible, immoral, and arguably criminal. They’re con artists if they actually know what they’re doing, and they’re ignoramuses if they don’t.
I know chiropractors are contentious, and some are certainly better than others. But unless they went to medical school and attained their doctorate, which they didn’t, calling themselves doctors is misleading.
That said, some are at least honest that what they do, provide some temporary relief. But others claim they can cure diseases and such, which are the original claims of chiropractic. That has been thoroughly debunked, and is very irresponsible for any chiropractor to claim.
I hold this idea for an amendment, partly to preserve a woman’s right to have an abortion, especially if her health is at elevated risk. But more generally, just because I think government shouldn’t be passing laws preventing a doctor from performing a treatment that they, and the patient, agree is best for them.
That said, I think government’s most important job, is to protect us from those who would do us harm, including quacks recommending procedures that aren’t backed by an ounce of science (still thinking about Steve Jobs and his choice to treat his cancer with homeopathy).
So I’d reconcile these conflicts of protecting doctor-patient interactions versus protecting patients from malicious practitioners by outlining how I feel about the four buckets above. But understand that first and foremost, my argument to protecting doctor-patient interactions is only about actual medical doctors.
Other so-called health gurus should receive no such protections, and frankly, in my opinion, should mostly be tarred and feathered.
Bucket #1: Treatments with no studies/data supporting or rejecting them
If there are no studies/data supporting them, I’m curious why any doctor would recommend it. But I can imagine a scenario where a doctor has some reason to believe a particular treatment could work, despite no data on it, for or against. That seems to be significantly less likely than charlatans, though.
In this scenario, if a doctor is licensed, that doctor should be required to disclose quite clearly, that there is zero science supporting the idea. But, that the doctor suspects it might be helpful, explain their reasons why, and if the person is willing to take an absolute shot in the dark, then they may proceed.
Bucket #2: Treatments with studies/data supporting them, but not enough to reach FDA approval yet
This is the bucket that I think most people are envisioning when they think of “right to try laws.”
These would be medicines or treatments making their way through the FDA approval process, or being done in other countries with some success, but just aren’t approved here in the United States yet.
Again, let’s assume the position of a well-intentioned physician. They might see the data, and think there’s reason for hope with these. If there’s no approved option for this patient, and the patient has weighed the costs, risks, etc., then by all means, allow them to proceed.
Again, I think it must include full disclosure that it isn’t an approved treatment, and it should be viewed as something to try, only if there aren’t more effective approved treatments, which I think most doctors would choose anyway.
What could get tricky, is if there as an approved treatment that has a low efficacy rate, but there’s this new unapproved treatment that seems to show a much higher efficacy rate, what would a doctor recommend and a patient choose.
We hate to roll the dice on someone’s life, but it’s their life. I think again, as long as they’re well-informed, it should be their choice.
I don’t see an avenue for many charlatans on this path, as they tend to peddle in things which show no efficacy—if there were efficacy, it would be promoted by actual doctors.
Bucket #3: Treatments with conflicting studies supporting and rejecting them
This bucket is admittedly quite challenging. But in the end, since there are some studies showing efficacy, it has some level of hope or promise.
I’d again, make sure that the patient is made fully made aware of the conflicted status, a basic understanding of why it might work, and why it might not, the risks and side effects observed, etc.
From there, the patient can make an informed decision, and move forward.
Bucket #4: Treatments with studies/data rejecting them
For me, this one is pretty easy. It’s not like we don’t have data on these treatments—we do. They have been tested and failed every time.
Of course, any good scientist doesn’t deal in absolutes. Just because there’s no data supporting such treatments doesn’t mean they don’t work. It just means we have no reason to believe it does.
I don’t think any reputable physician should be prescribing such a treatment, and they should be excluded from “right to try” until there is some data to suggest they are safe and effective.
A doctor should inform the patient that such treatments have never been shown to be helpful, and that the doctor, in good conscious, wouldn’t recommend it, lest they be charged with malpractice.
As you may have noticed, in each scenario, I focus on informing the patient thoroughly. This is how I propose the government protect the patient, without standing in the way of preventing a potentially life-saving treatment.
I think these buckets are important, because when many talk about “Right to try” laws, they tend to not differentiate between a treatment which is showing efficacy, versus one that has been thoroughly debunked—those two things should be treated quite differently.
Native of India, Pankajkumar Patel made his way to the United States in the 90’s, but he did so “without inspection.” That’s a fancy term for he was here illegally. In 2012, that shit caught up with him, and was charged by the Dept. of Homeland Security (DHS) to be removed from the United States, because he had in fact, come to the US illegally.
In the United States, we have an “Adjustment of status” proceeding, which basically is a way for non-citizens, here illegally, to be made legal, without being forced to leave the country and go through the process of obtaining their visa like every other legal immigrant. It is a two-step process where first, they must show eligibility, and then they qualify “in the exercise of discretion.” Which as I read it, basically means, you not only have to prove you’re eligible, but you also have to show there’s a good reason, in the eyes of the United States (in their discretion), you should be allowed to stay. But feel free to click the link and see if you read that differently.
Patel had been working the whole time, and thus, was a productive person here. He claimed this should justify him being allowed to stay. But , Patel made a serious fuck up. He applied for a driver’s license in Georgia, and on the application, he checked the box indicating he was a citizen. He argues it was a mistake, but it is suspicious that maybe he did so, in order to get that shit approved.
This false information led DHS to argue he’s a liar liar, and his pants are on fire, and order her get the fuck out.
So Patel’s case lands in front of an immigration judge, who is more impressed with DHS’s argument than he was Patel’s, and was like, “Sorry bro, you gotta go. We’re not in the business of letting bullshit artists to hand around.”
Patel, not so quick to give up, because it’s pretty fucking great here in the US compared to India, filed for appeal with the Board of Immigration Appeals (BIA). They were however, just as unimpressed as the Immigration Judge, and told him to kick rocks.
Congress passed laws barring federal courts from reviewing these discretionary decisions. So Patel, not being happy about those decisions from the Immigration Judge and the BIA, took his case to the 11th circuit. But the law mentioned above, basically argues the 11th circuit has no business getting involved in this shit. It’s a matter for DHS and Immigration, not the courts, and told him to politely fuck off.
So the question before SCOTUS, is does Patel have the right to ask the federal court to step in and smack down the BIA and Immigration Judge, if they agree with Patel?
In a 5:4 decision, written by Justice Barrett, and joined by Roberts, Thomas, Alito, and Kavanaugh, Scotus sided with Merrick Garland, essentially putting the nail in Patel’s coffin. The text of the law was clear in their opinion, that federal courts don’t get to weigh in on such immigration matters.
Justice Gorsuch, with the Breyer, Sotomayor, and Kagan dissented, basically saying that the law as written gives way too much power to DHS and Immigration, and that’s straight up bullshit.
Read about the case and hear oral argument at the links below.
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
United States Constitution, Bill of Rights, 2nd amendment.
While the rest of the country seems intensely focus on whether Roe v. Wade is overturned, a good number of us are pretty interested in how this one goes.
The People’s Republic of New York, the most statist state that ever stated, is under the scrutiny of SCOTUS again, thanks to the New York State Rifle Association (NYSRA), and their crusade against New York’s tyrannical positions on guns.
The latest kerfuffle is over permits to carry. You see, New York knows they can’t ban guns outright, but they have done everything in their power to make sure you can’t actually wield it.
One of these rules is that in order to carry a gun on your person in New York, you must apply for a permit, and show cause for getting one, such as someone has been threatening you, or you’re in some high-risk job.
This seems totally fair, right? Criminals are always courteous enough to give you a heads up that they’re coming for you, so you can apply for such a permit, buy a gun, and be prepared.
Counsel for NYSRA opened by saying, “Carrying a firearm outside the home is a fundamental constitutional right. It is not some extraordinary action that requires an extraordinary demonstration of need.”
We’re of course biased here at Logical Libertarian towards the freedom to own and carry a gun, but few other rights, if any, allow the state to make you prove your desire to exercise that right. This is highly “atypical” as Counsel Paul Clement put it. The bill of rights specifically says, “to keep and bear arms,” but NY’s law effectively makes “bearing” a privilege the state grants you, not a right.
For instance, you don’t have to go to the Mayor and get a permit to tell your local conseltwerp to eat a bag of dicks, and then be required to supply a load of evidence to suggest said counseltwerp has a demonstrable need to eat that bag of dicks.
Justices Barrett, Roberts, Alito, and Kagen all pressed NYSRA’s counsel on the “sensitive places” allowances. This is the idea that the majority of justices agreed in previous decisions, the government has a right to refuse carrying in places like schools, government buildings, etc. So they were testing the idea of whether NY is just basically declaring the entirety of a city or district, can be deemed a “sensitive place.” The crux of the argument being, when is it OK to declare a place a sensitive place, versus when is the place to broad to be declared as much.
One thing to note, in the sensitive place issue, people still have the right to carry in general, and even if they have a permit, they can’t carry in a sensitive place, so it seems a little disingenuous to debate. The law in question forces people to get a permit to carry in general. The sensitive places restricts anyone other than law enforcement from carrying in that particular place. While they’re related, they are not the same.
Counsel for NYSRA stated succinctly:
At the end of the day, I think what it means to give somebody a constitutional right is that they don’t have to satisfy a government official that they have a really good need to exercise it or they face atypical risks.
~Paul Clement
Counsel Clement went on to point out that while they accept the “sensitive places” limits, and even limits on who can carry, such as criminals and people with mental illness, their side opposes the “atypical” stance NY has adopted. Meaning, that NY is essentially saying a typical person may not carry, only a person who’s atypical, such as someone at elevated risk, is the problem. It can’t be a right, if one has to be unique to exercise it.
One issue that also comes up, is tradition. SCOTUS like to make sure laws are adjudicated consistently, so people who were perfectly OK one day, aren’t criminals the next. Change should come gradually, and not sweeping and fast.
They’ll look at old law, sometimes even English law adopted prior to the Constitution, but which the Constitution got it’s basis from. Sotomayor wanted to cite traditional laws restricting weapons, which states have adopted, many of which American law is inspired by.
She stated:
The one thing that I’ve looked at in this history is the plethora of regimes that states pick, and that starts in English law, through the colonies, through post-Constitution, to post-Civil War, to the 19th Century, to even now, those 43 states that you’re talking about, most of them didn’t give unrestricted rights to carry in one form or another until recent times. Before recent times, there were so many different regulations.
What it appears to me is that the history tradition of carrying weapons is that states get a lot of deference on this.
And the one deference that you haven’t addressed is the question presented is what’s the law with respect to concealed weapons. In 1315, the British Parliament specifically banned the carrying of concealed arms.
In colonial America, at least four, if not five, states restricted concealed arms. After the Civil War, there were many, many more states, some include it in their constitution, that you can have a right to arms but not concealed. You can go to Alabama, Georgia, and Louisiana, which are now more open—more free in granting the right to carry guns, but they prohibited through their history concealed weapons, the carrying of concealed weapons.
It seems to me that if we’re looking at that history and tradition with respect to concealed arms that there is not the same requirement that there is in the home. One of the things Heller pointed to was there were few regulations that prohibited the carrying or the keeping of arms in homes. But that’s not true with respect to the regulations about keeping of arms outside of homes. Putting aside the prohibitions, regulations on sensitive places, regulations on the types of people, it seems to me that I don’t know how I get past all that history
~Justice Sotomayor
But justice Kavanaugh, speaking with Clement reiterated that rights start with the Constitution’s text, not tradition or other laws. So basically, Sotomayor’s argument was stupid, and she should shut the fuck up with that noise.
As counsel Underwood for the state of NY came to make her shitty arguments, Justice Roberts hit a home run with this question:
Now Heller relied on the right to defense as a basis for its reading of the Second Amendment, or that was its reading. Now I would think that arises in more populated areas.
If you’re out in the woods, presumably, it’s pretty unlikely that you’re going to run into someone who’s going to rob you on the street.
On the other hand, there are places in a densely populated city where it’s more likely that that’s where you’re going to need a gun for self-defense and, you know, however many policemen are assigned, that, you know, there are high-crime areas. And it seems to me that what you’re saying is that’s probably the last place that someone’s going to get a permit to carry a gun. How is that, regardless of what we think of the policy of that, how is that consistent with Heller’s reasoning that the reason the Second Amendment applies a direct personal right is for self-defense?
~Chief Justice Roberts
Counsel Underwood argued:
Well, and the other thing is that these regulations are all an effort to accommodate the right, to recognize and respect the right of self-defense while regulating it to protect the public safety.
And in areas where people are packed densely together, as the questioning that just happened displays, the risks of harm from people who are packed shoulder to shoulder, all having guns, are much more acute.
~Barbara Underwood
Justice Roberts, realizing this argument was weak, countered with:
What if it’s one of these crime waves, whether it’s a celebrated spate of murders carried out by a particular person, I don’t know who that is—you know, the Son of Sam or somebody else? Is that a good reason to—a atypical reason? Is that a justification? Some random person is going around shooting people.
I’d like to have a firearm even though I didn’t feel the need for one before?
~Chief Justice Roberts
Justice Alito, not to shy away from this line of questioning, pushed Underwood further by asking:
Could I explore what that means for ordinary law-abiding citizens who feel they need to carry a firearm for self-defense? So I want you to think about people like this, people who work late at night in Manhattan, it might be somebody who cleans offices, it might be a doorman at an apartment, it might be a nurse or an orderly, it might be somebody who washes dishes. None of these people has a criminal record.
They’re all law-abiding citizens.
They get off work around midnight, maybe even after midnight.
They have to commute home by subway, maybe by bus.
When they arrive at the subway station or the bus stop, they have to walk some distance through a high-crime area, and they apply for a license, and they say: Look, nobody has said I am going to mug you next Thursday.
However, there have been a lot of muggings in this area, and I am scared to death. They do not get licenses, is that right?
How is that consistent with the core right to self-defense, which is protected by the Second Amendment?
~Justice Alito
Counsel Underwood’s arguments in response again were that basically, a lot of people crowded together with guns, is inherently an unsafe situation, and thus why NY should have the right to prevent such a situation. An argument not supported by any evidence, but commonly argued as justification for restricting gun rights.
Justice Alito really went after her in this exchange:
Samuel A. Alito, Jr.
There are — there are a lot of armed people on the streets of New York and in the subways late at night right now, aren’t there?
Barbara D. Underwood
I don’t know that there are a lot of armed people.
Samuel A. Alito, Jr.
No?
Barbara D. Underwood
I think there are people —
Samuel A. Alito, Jr.
How many — how many —
Barbara D. Underwood
— there are people with illegal guns if that’s what you’re —
Samuel A. Alito, Jr.
Yeah, that’s what I’m talking about.
Barbara D. Underwood
— referring to. Yeah.
Samuel A. Alito, Jr.
How many illegal guns were seized by the — by the New York Police Department last year? Do you — do you have any idea?
Barbara D. Underwood
I don’t have that number, but I’m sure there’s a — it’s a substantial number.
Samuel A. Alito, Jr.
But the people — all — all these people with illegal guns, they’re on the subway —
Barbara D. Underwood
I don’t — I don’t —
Samuel A. Alito, Jr.
— they’re walking around the streets, but the ordinary hard-working, law-abiding people I mentioned, no, they can’t be armed?
Barbara D. Underwood
Well, I think the subways, when there are problems on the subways, are protected by the — the — the transit police, is what happens, because the idea of proliferating arms on the subway is precisely, I think, what terrifies a great many people. The other point is that proliferating guns in a populated area where there is law enforcement jeopardizes law enforcement because, when they come, they now can’t tell who’s shooting, and the — the — the — the shooting proliferates and accelerates.
And, in the end, that’s why there’s a substantial law enforcement interest in not having widespread carrying of guns in densely —
As you can see, NY’s laws are common among anti-gun legislators, that the people should rely on government to protect them, as she points out the transit police. While it may be a compelling argument to people who don’t like guns, it’s antithetical to the principles this country is founded on.
Justice Kavanaugh, took issue with her underlying premise that the state can and should be able to restrict guns in densely populated areas because that’s inherently dangerous, arguing:
Has that happened in those states? I mean, can you make a comparative judgment? Because it seems like before you impose more restrictions on individual citizens and infringe their constitutional rights based on this theory, you should have to show, well, in those other states that have shall issue regimes, actually, there is a lot more accidents, crime.
And I don’t see any real evidence of that.
~Justice Kavanaugh
He clearly felt her justification was based on dubious, if not an entirely fabricated premise. While she responded with generalities that she seemed to thing we should just accept as true, no data was provided.
The United States (The Biden Administration and their merry band of assholes) had an amici also argue, but again, Justice Roberts wasn’t having any of his bullshit. He fired this salvo:
John G. Roberts, Jr.
I mean, what is the appropriate analysis? I mean, you sort of — we — we, I think, generally don’t reinvent the wheel.
I mean, the first thing I would look to in answering this question is not the Statute of Northampton, it’s Heller, and Heller has gone through all this stuff and, obviously, in a somewhat different context, although that’s part of the debate, self-defense at home.
You know, this is different. But I still think that you have to begin with — with Heller and its recognition that the Second Amendment, you know, it — it has its own limitations, but it is to be interpreted the same way you’d interpret other provisions of the Constitution. And I wonder what your best answer is to the point that Mr. Clement makes in his brief, which is that, for example, if you’re asserting a claim to confront the witnesses against you under the Constitution, you don’t have to say I’ve got a special reason, this is why I think it’s important to my — my defense. The Constitution gives you that right. And if someone’s going to take it away from you, they have to justify it.
You don’t have to say when you’re looking for a permit to speak on a street corner or whatever that, you know, your speech is particularly important. So why do you have to show in this case, convince somebody, that you’re entitled to exercise your Second Amendment right?
Brian H. Fletcher
So let me start with the general question and then get to that specific point for Mr. Clement. As to the general question about Heller, we agree completely that the Court ought to apply the method from Heller, which we, like I think all the parties, take to be look to the text, history, and tradition of the Second Amendment right, and we’re applying that now to a somewhat different issue with the benefit of somewhat broader materials. Now, as to the question about why you have to have a showing of need, I think the problem with Mr. Clement’s formulation is that it assumes the conclusion. If you had a right, the Second Amendment conferred a right to carry around a weapon for possible self-defense just because an individual wants to have one available, then, obviously, you couldn’t take away that right or make it contingent upon a discretionary determination. But the whole question is whether the Second Amendment right to keep and bear arms confers that right to have a pistol with you for self-defense even absent a showing of demonstrated need.
John G. Roberts, Jr.
Well, I’m not sure that’s right.
I mean, you would — regardless of what the right is, it would be surprising to have it depend upon a permit system.
You can say that the right is limited in a particular way, just as First Amendment rights are limited, but the idea that you need a license to exercise the right, I think, is unusual in the context of the Bill of Rights.
A district court and the Second Circuit in New York, being sympathetic to New York’s tyrannical scheme dismissed NYSRA’s claims, but luckily for New Yorkers, SCOTUS think those courts are basically idiots.
In a 6:3 split partisan decision, where Breyer, Kagan, and Sotomayor dissented, arguing that states should have the necessary powers to reduce gun violence, even if it involves violating fundamental rights, Justice Thomas laid down the law. New York State’s law violates the 14th amendment (the one that guarantees equal protection and shit), denying some people their second amendment rights. He rightly points out, as was argued, no other right has this burden, so why is the second amendment special? Justice Alito added that a right is a right, whether you intend to lower murders by gun is fucking irrelevant.
Roberts and Kavanaugh agreed, but pointed out that background checks, mental health checks, and other checks to make sure someone is the type of person we agree shouldn’t carry are fine, but that has a foundation in that it’s a right until you prove you’re not someone who should be allowed to exercise that right, where as what NY did, was say you don’t have the right, until you prove you need it, and this shit just ain’t OK.
Hear oral arguments and/or read about the case here.
Do you remember hearing something about a case a long time ago, I think it was called Roe v. Wade? I hear it’s kinda famous. Well anyway, ever since, people rolling around with a Jesus fish on their car, have been on a crusade to do something about that. Especially the ones rolling around in Texas.
In Roe v. Wade, SCOTUS recognized you have two competing rights. A female’s bodily autonomy, versus the life of a fetus. But a fetus has never really been legally ruled as a life with constitutional rights, although it’s never been ruled out either. So back in the day, SCOTUS came up with a trimester system, where the first trimester, a woman’s bodily autonomy was the prevailing right, the second trimester they were somewhat equal, and the third trimester, the fetus had the prevailing right. Seemed fair to any fair minded person, but still the war rages on.
The latest battle on this front took place in Texas, and their fancy new SB8 abortion law. Knowing they couldn’t directly contradict Roe v. Wade’s precedent, Texas went for the most inventive shit ever. They passed a law that said, if you received an abortion, or were the physician who performed one, you could be sued by anyone in the great state of Texas. So they didn’t make it a criminal action, which was their way of not going against the Roe precedent, but they made it so it could cost people so much money, they wouldn’t do it.
They argued that they concede the first six weeks of pregnancy, but opponents argue six weeks can be nearly impossible to have cause to think one is pregnant, and give them the time needed to make the decision and have the procedure. One would basically need to take a pregnancy test shortly after each time they had sex to do all that within the time frame Texas set forth.
In steps Whole Women’s Health (WWH), a Texas abortion provider who submitted a petition to SCOTUS, that just said, “WTF is this bullshit?”
Originally, they asked SCOTUS to block the law, but they declined to do so. So now that it’s in effect, SCOTUS is hearing the case on their normal merits docket. So the question facing them is, can government pass a law that violates precedent, if the precedent pertained to criminal law, and this new law is merely civil litigation?
This particular case hinges around state officials who were sued by abortion providers for violating their constitutional rights as outlined in Roe v. Wade, and Mark Dickson, who most abortion providers consider to be a Jesus freak and all around asshole. They expect him to be the overzealous douchebag suing people left and right over this.
The government officials were like, “We have sovereign immunity, or whatever the fuck you call it. You can’t be suing us like this.”
Also interesting to note, when they asked SCOTUS to put the law on hold, SCOTUS declined to do so, because they were like, “you’re asking us to prevent the government from enforcing the law, but the way this fucktwats wrote it, they don’t enforce it, the people do, by suing providers. So we can’t force them to stop doing something the law doesn’t have them doing in the first place.” This of course supports Texas’ creativity in passing this in the first place.
Counsel for WWH came out swinging, and declared shenanigans. Counsel flat out accused them of blatantly violating Roe v. Wade precedent, then trying to be clever and using the whole civil litigation scheme to get around it.
When questioned by Justice Roberts about this scenario where people are being sued trying to exercise a constitutional right, counsel for Texas argued that there was precedent for this. People are sued for lawful possession of a firearm all the time, and they’re just trying to exercise they’re 2nd amendment right. So what’s the big fucking deal suing people for trying to exercise their constitutional right to bodily autonomy as identified in Roe v. Wade.
In a unanimous decision, SCOTUS sided with Whole Women’s Health. They they can in fact proceed to a pre-enforcement challenge of this ridiculous law. Furthermore, Justice Roberts, along with Justices Breyer, Kagan, and Sotomayor were like, “What the fuck is even the purpose of our judicial review if punks like these assholes in Texas can just skirt our rulings with creative bullshit like this. We need to nip this shit in the bud right meow.”
log·i·cal: capable of reasoning or of using reason in an orderly cogent fashion lib·er·tar·i·an: an advocate of the doctrine of free will; a person who upholds the principles of individual liberty especially of thought and action
The Logical Libertarian™ 