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.
I’m going to assume you’ve all heard of Miranda rights, correct?
It’s some version of this, depending on the state:
You have the right to remain silent.
Anything you say can and will be used against you in a court of law.
You have the right to an attorney.
If you cannot afford an attorney, one will be appointed for you before any questioning if you wish.
In the United States, the fifth amendment reads as follows:
Fifth Amendment
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Miranda addresses the part about not being compelled to be a witness against yourself. You see, back in 1963, Ernesto Miranda decided to kidnap a women, then put his dick some place it didn’t belong.
Ernesto Miranda
The police picked him up, questioned him for two hours, and eventually obtained a written confession from him. At no point however, did police tell Ernesto that he had a right to a lawyer.
So armed with the confession, Arizona prosecuted his ass—easily winning their case against him.
Miranda eventually obtained a lawyer, however, who decided that there should be a fucking rule that forces police to advise a person of their rights when they’re arrested. Without that, such confessions should be thrown out, as a lawyer may have advised their client to say or do something quite different from what they actually said and did.
Folks, remember four words if you’re ever being questioned by police: “SHUT THE FUCK UP!” That’s it. SHUT THE FUCK UP!
Ask for a lawyer, and say nothing, no matter what the situation is. Period. Always. Every fucking time. Got it?
It’s not that police are bad, but when you’re a hammer, everything looks like a nail. Police tend to feel like everyone they’re talking to is a bad actor. So on the off chance you might say something that makes them question your innocence, even when you are innocent, you could find yourself in a bad situation because you failed to SHUT THE FUCK UP.
Anyway, Miranda won at SCOTUS and his confession was thrown out, making his trial a mistrial. Since appellate victories don’t trigger the double jeopardy rule, Arizona tried Miranda again, without the confession, and still won.
So while Miranda changed US Law forever—helping innocent people not get railroaded by aggressive government tactics, that fucker was guilty as sin, and his SCOTUS victory didn’t help him one iota.
This is a law that says, if government violates your constitutional rights, you can fucking sue them for civil damages.
Miranda and code 1983 are what’s at issue here in this case.
Terence Tekoh was a low-level patient transporter at a Los Angeles hospital.
Terence Tekoh
A young lady was in the hospital, and at one point, under heavy sedation. During that time, she asserted that Tekoh channeled his inner Miranda and stuck a finger in her vagina while she was in the hospital.
The hospital called the fuzz, and Officer Carlos Vega showed up, questioned Tekoh for some time, without ever reading him his Miranda rights, and eventually Tekow wrote an apology for touching the patient inappropriately, which was deemed as a confession.
However, Tekoh was acquitted in his second trial after an initial mistrial.
I’m not sure how someone’s first hand testimony that he molested them wasn’t sufficient for a conviction, but I guess I have to trust the 12 angry men on this one.
Anyway, Tekoh, feeling like he won the lottery after his acquittal decided to double down and sue Officer Vega for violating his constitutional rights.
He argued that he didn’t vountarily talk with Vega, Vega pulled him aside, called him a bunch of racial slurs, threatened to deport his family, and a whole host of other shit, until he confessed.
I won’t bore you with the lower court shit, just know it made it to SCOTUS, and their question was, is Miranda a constitutional right, and if so, can Tekoh sue if he’s not Mirandized?
Let’s go to the arguments:
Roman Martinez
First up: Roman Martinez representing officer Vega.
He opened by arguing Miranda is simply a prophylactic rule designed to protect a person’s fifth amendment rights, and is not a right in and of itself. Just because you’re not mirandized, doesn’t necessarily mean your constitutional rights were violated.
He argues that while Miranda helps protect the fifth amendment rights of the individual, if some moron just blurts out a confession before officers mirandized them, you can’t fairly say the cops violated their constitutional rights and coerced a confession.
He argues that Vega merely took Tekoh’s statement. There was no evidence of coercion, courts and juries didn’t feel Vega did anything wrong, Tekoh just blurted out what he had done.
Justice Thomas was the first to chime in, since he has seniority and all. He asked about a previous case, Dickerson V. United States. So let’s discuss that for a minute.
Associate Justice Clarence Thomas
In that case, congress has passed 18 U.S. Code § 3501 – Admissibility of confessions. This statute came about after the Miranda case law was established, and was congress’ attempt to legislate away Miranda rights by saying voluntary confessions given before Miranda rights are given, should be admissible in court.
However, SCOTUS told congress to go pound sand with this shit, and the reason why is very important.
I know I go off on tangents—not even gonna apologize for that. Eat my entire ass if you don’t like it—I’m trying to learn y’all something.
The courts job is to interpret laws, regulations, executive orders, the constitution, and other case law. When they do this, it establishes new case law. But not all laws are on the same tier.
In the case of Miranda, they were interpreting the constitution. The case law they created in Miranda therefore is at the constitutional tier. Congress pass statutes, but they are on a lower tier to the constitution. So while congress could create new statutes to invalidate case law regarding a statute, they can’t write a statute invalidating case law over a constitutional principle, otherwise a law would be trumping the constitution. This is Dickerson in a nutshell. SCOTUS ruled in Dickerson, that congress cannot legislate away constitutional case law.
OK, done digressing, back to the case.
Justice Thomas wanted to know if Dickerson destroyed Vega’s case. If SCOTUS ruled that Miranda couldn’t be overruled solely by statute, then doesn’t that make Miranda a constitutional issue, and therefore qualify it as a constitutional violation?
But Counsel Martinez was like, “Nah, man. Miranda protects a constitutional right, but it isn’t a right in and of itself. It’s constitution-adjacent.”
Justice Roberts next asked:
Supreme Court of the United States Chief Justice John Roberts
John G. Roberts, Jr.
Mr. Martinez, if I could focus just for a minute on the language of the cause of action here, 1983.
It gives individuals a right against the deprivation of any rights, privileges, or immunities secured by the Constitution and laws. Now, under Miranda, you have a right not to have unwarned confessions admitted into evidence.
You wouldn’t have that right if it weren’t for the Constitution.
So why isn’t that right one secured by the Constitution?
Counsel Martinez responded, “Man, a rule to protect a constitutional right isn’t a constitutional right itself. Nowhere else does this occur, that some stupid-ass procedural rule that protects a constitutional right, all of a sudden becomes a constitutional right in and of itself.”
Justice Kagan was the next to chime in. She could not wrap her head around the argument that Miranda is there to ensure the 5th amendment rights are preserved, and that if a Miranda warning isn’t given, that somehow counsel argues that doesn’t necessarily mean his 5th amendment rights were violated.
Associate Justice Elena Kagan
Counsel Martinez suggested that just because Miranda wasn’t given, could it not be true that cops were having a discussion with him, and he admitted to what he had done in a moment of guilt?
That maybe he wanted to confess, even if he knew he didn’t have to answer their questions?
There’s no reason to assume his confession was coerced at all, without evidence of such. Therefore, his right not to self-incriminate doesn’t have to have been violated.
Justice Sotomayor asked:
Can you tell me why we’re here?
Simple question, but complex reason. She’s asking that Vega not Mirandizing him may have violated his Miranda rights, but it was the prosecutor and courts who chose to admit that confession who royally fucked Tekoh in the ass. So why sue Vega?
Martinez was like, “Fucking Vega lied to the prosecutor and the courts about this bullshit confession he obtained. That’s why we’re going after him. The prosecutor and judge were going on bad info from Vega!”
Next up is Vivek Suri. He’s representing the federal government under Biden, as an amicus, in support of Vega.
His opener was a short banger.
Vivek Suri
Mr. Chief Justice, and may it please the Court: Miranda recognized a constitutional right, but it’s a trial right concerning the exclusion of evidence at a criminal trial.
It isn’t a substantive right to receive the Miranda warnings themselves. A police officer who fails to provide the Miranda warnings accordingly doesn’t himself violate the constitutional right, and he also isn’t legally responsible for any violation that might occur later at the trial.
He’s basically saying, even if the cop fucked up and didn’t mirandize, the prosecutor brought the evidence in, and the judge allowed it. So why is Vega the asshole here?
Justice Thomas jumped in first again, and simply asked, what if the officer lies about what happened during the interrogation?
Vivek is largely arguing 1983 claims are about things that happen outside of trial. But things that happen during the trial, are generally not 1983 claims, such as ineffective counsel, or other poor actions by the judge and prosecutor.
Vivek essentially argues that the remedy for a Miranda claim, is just to throw out the testimony that was given before a baddie was mirandized. It’s not to make it rain cash on the poor sucker.
Last up is Paul Hoffman, representing Mr. Tekoh, AKA Goldfinger.
He’s arguing that Officer Vega’s account is bullshit. Tekoh did not just willingly give up this info. Vega threatened him with deportation and shit, until he confessed.
Vega then lied and suggested that Tekoh, out of the blue, was just like, “Hey man, I’m sorry, I fingered her without her consent. I’m an asshole. Totally my bad.” As if somehow, he didn’t even feel he needed to Mirandize him yet, but then Tekoh just dropped the dime on himself straight away.
Paul Hoffman
Problem for Hoffman, none of the fucking trials actually found, based on the evidence, that Vega did coerce Tekoh. It’s Tekoh’s story, but that’s it.
If Tekoh just blurted out his guilt willy nilly, Vega really didn’t do anything wrong. But Hoffman needs to prove that Vega threatened him with deportation and such, and he just doesn’t have any court findings or testimony to back that shit up.
Think of it like three steps. The use of an unMirandized statement is a violating of the fifth amendment. 1983 let’s you sue for damages if your rights are violated. If Vega lied and said the confession wasn’t coerced when it was in fact coerced, and that confession was admitted into evidence, than Tekoh’s constitutional rights were violated by Vega, and Vega should be rewarded with some 1983 dollars.
If Vega is telling the truth, and Tekoh just sang like a canary because he was feeling guilty, as Vega suggested at trial, then Vega didn’t coerce that confession, he’s just reporting what he heard Tekoh say.
Since Tekoh was exonerated, you might wonder what harm he is claiming. The confession didn’t help the government convict Tekoh. But Tekoh’s claiming that the fact his confession was used as evidence against him, led to him having to endure a trial at all, and therefore he was harmed.
Hoffman is arguing that Tekoh’s life and reputation were harmed by all this, and none of it would have happened, had Vega Mirandized him, instead of interrogating him. And that’s what 1983 is there for—violations just like this.
The opinion, written by Justice Alito, and joined by the other 5 Republican appointees, decided it didn’t give a fuck whether Vega lied or not. That Miranda is not a constitutional right, it is a prophylactic rule that merely protects a constitutional right. The remedy for a Miranda violation is the evidence not being allowed into trial. It isn’t 1983 dolla dolla bills y’all.
Essentially, he’s saying that because it’s possible Tekoh just blurted out his confession, and Vega was in earshot of it, which would be admissible in court, that this proves that not mirandizing someone isn’t always a fifth amendment violation.
He wrote:
A violation of Miranda does not necessarily constitute a violation of the Constitution, and therefore such a violation does not constitute “the deprivation of a right secured by the Constitution” which is necessary to secure a 42 U. S. C. §1983 claim.
So Tekoh can go fuck himself, instead of his patients—he’s lucky he was acquitted.
Justice Kagan wrote the dissent. I’ll summarize it this way. “If Miranda is required to protect someone’s 5th amendment rights, and a Miranda warning isn’t given, someone’s fifth amendment rights were fucking violated. Alito, respectfully, you’re a crusty old senile fuck, and you should retire.”
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.
Ever heard of intergovernmental immunity? I sure as hell hadn’t.
During the formation of the United States, state’s rights were a big fucking deal to the founding members. They were wary to create some “all-powerful” federal government—that ish would be too much like the motherfuckers they just shot and killed in order to form our new nation.
That said, they also understood that certain things needed to be controlled by the federal government over the states.
For instance, the Bill of Rights was initially thought of as a limit only on the federal government, but eventually SCOTUS heard Gitlow v. New York (1925).
Some socialist asshole named Gitlow was arrested in New York for passing out commie propaganda suggesting people should overthrow the government. He was arrested under a New York law banning such speech.
SCOTUS, after hearing the case, ruled in favor of Gitlow—the Constitution’s enumerated rights are not rights at all, if the states can violate the fuck out of them. So after that, case law mandated that the rights in the constitution applied to all levels of government, not just federal.
In that decision, SCOTUS was addressing the right to free speech via the first amendment, but it laid the precedent that the states have to abide by the Constitution’s restraints. All the states agreed to this shit—they can’t just back out of it later.
But this isn’t the only time the federal government exerts power of the states. There’s also intergovernmental immunity—which is much older.
Back in 1819, SCOTUS heard McCulloch v. Maryland. McCullough worked for a federal bank. Maryland wanted to tax said bank. McCullough told them to fuck off and die. The case made it to SCOTUS, and legendary chief Justice John Marshall opined that the states cannot tax or regulate property of the federal government, and voila! Intergovernmental immunity was born.
Chief Justice John Marshall
The federal government can allow the states to tax or regulate them, in certain areas, but only if the federal government says it’s cool. We’ll get to that in a minute.
This case revolves around intergovernmental immunity, because the state of Washington has this now-closed nuclear power plant called the Hanford Site. It was built in 1943 as part of the Manhattan Project. It was the first plutonium reactor in the fucking world—’Murica, bitches! Some of the plutonium produced at that site was the fuel used in the Nagasaki bomb.
Back in 1989, they decided that this plant was old, tired, outdated, and ready to be put out to pasture. So since that shit is no longer operational, someone has the duty to erase that mother fucker off the face of the Earth, and all it’s radioactive essence along with it.
That somebody is the federal government, via the U.S. Department of Energy.
The Hanford Site
Now let’s talk about Worker’s Compensation. You know, that government “insurance” program by which, if you’re hurt in the workplace, the government pays out cash money to you?
Well, there isn’t a federal worker’s comp program—that’s usually handled by the states. So, in 1936, the federal government passed 40 U.S.C. § 3172.
Remember when I said the federal government could give the states some power over them if they wanted? This statute gave the states the power to narrowly regulate federal workers on federal property which exists in that state via that state’s worker’s comp program.
Too many times, because of intergovernmental immunity, federal workers were forced to sue the federal government to get paid for on-the-job injuries, so congress passed this law to help.
This saved requiring the lazy fucks in the federal government to pass their own version of such a program.
We know worker’s comp is about injuries that occur at work, such as falling off a ladder and breaking a fucking leg, or something. That’s pretty easy to identify as a workplace hazard and incident.
What’s not so fucking easy, is attributing diseases like cancer, which may be caused by radiation leakage from a defunct nuclear power plant, to a workplace like the Hanford Site. It’s pretty much impossible to prove that someone’s cancer is not just a random cancer they contracted, even if odds suggest it probably is related to handling nuclear waste.
But worker’s comp requires that the claimant can prove the fucking harm was caused by the workplace. So this is a pain in the ass for these people trying to clean up this nuclear site.
As you can imagine, they’re basically real-life Homer Simpsons, working in a pretty hazardous environment. When accidents happen, people will likely get sick and die. Hell, some of the protections they use, may even be insufficient, leading to problems they thought they were protected from.
At the Hanford Site, the federal government was paying claims just fine, until 2018, when Washington changed the rules with H.B. 1723, making it easier for workers to claim workplace injuries there.
Generally, if safety protocols are meticulously followed, barring some fucking equipment failure, these workers should be adequately protected. But Washington noted that protocols often weren’t followed, which then might lead to increased risk.
If workers put their own dumb asses at risk by avoiding safety protocols, it’s hard to blame the workplace for such illnesses. They’re a victim of their own defective idiotic brain—such claims usually aren’t covered.
But Washington was like, “you government assholes aren’t doing a good job monitoring these safety protocols, so we don’t really know if these fuckwits are to blame for their own issues. It could be you lazy fucks, instead.”
So basically, Washington’s rule change went from requiring proof all safety protocols were followed and they got sick anyway, to “if they got sick from a disease that could be caused by exposure, we’ll assume they’re owed compensation. The monitoring of safety protocols is pretty fucking weak at times, and we can’t really determine who’s at fault.”
Even more odd, the law specifically only modified that for the Hartford Site workers. That’s odd, because other people in the state, working for the federal government, the state, or private companies, could be working with similar risks, and subject to the same harms, but for them, they don’t get that presumption of work-caused disease.
Between when SCOTUS agreed to hear this shit, and it was actually heard however, Washington amended the rule with S.B. 5890, which now covers anyone in the state working with radioactive shit.
So the Federal government was like, “Hold on a fucking minute. We were all Kool and the Gang with this shi before, but now it’s getting expensive AF.
It might seem like the federal government wouldn’t care if it covered non-federal workers, as they’re being paid by the state, and thus aren’t on the hook for these additionally-covered workers.
This is where it gets interesting.
Before the latest rule change, the federal government was suing because they felt the state was unfairly discriminating for federal workers. Now that they are applying the rules to everyone, it’s questionable if Washington mooted this case—they’re no longer discriminating in the way the federal government complained.
The federal government is skeptical the latest rule will be retroactive, which Washington says it would be. So the federal government is like, “You assholes didn’t moot shit. We’re still on the hook for these old motherfuckers, and we don’t believe you when you say you’ll apply it to non-federal workers retroactively.
So anyway, that’s the nuts and bolts of this case. Now, let’s check in on the oral arguments…
First up for Petitioners, the good ole USA, is Department of Justice Deputy Solicitor General, Malcolm Stewart.
He opened by pointing out that the changes they made to the law, have not been proven to be to the benefit of the United States, and as such, didn’t moot their fucking claim.
U.S. Deputy Solicitor General Malcolm Stewart
He points out that every other worker on the site, such as state or private workers, are under different rules, and as such, that’s pretty unfair to the United States.
Justice Kagan asked, “if they had passed this new law before you filed for certiori to have us hear it, would you still have filed?”
He agreed, it wouldn’t have been the same argument, but they’d still have filed to ask the court to vacate the lower court’s decision on this, which they lost. But, he also pointed out that he wanted the court to provide clarification on the scope of the 1936 federal law, 3172 mentioned above.
Justice Roberts seemed confused by the statute, and asked Stewart, if the facility were owned by the state, would these workers be covered by state worker’s compensation laws?
I think at the heart of the question Justice Roberts is asking, since the law Washington wrote about these federal workers only applied to them, could they also apply it to the workers if it were a state facility?
Counsel Stewart was like, “Sure, but they didn’t.” He points out that the HB1723 law only applies to Hanford Site workers, which all work for the federal government. So even if the state could apply those rules to other state facilities, the law as written doesn’t allow it. It specifically just calls out the Hanford site.
His beef is that the federal government is being discriminated against other workers doing similar work in Washington, and that’s some bullshit, in his professional opinion. They argued this point, a lot. I mean, a LOT.
Going back to the rule that the federal government has to agree to allow the states to tax or regulate them, which they do here, his argument is that they didn’t agree to be discriminated against. If the rules were the same for everyone else, they wouldn’t fucking be here. But the state, knowing that the federal government has some deep pockets, made rules specifically for the Hanford Site peeps, knowing the state or its business, wouldn’t have to pay it, only Big Daddy Fed would.
Next up is SCOTUS newbie, Tera Heintz.
She opened by arguing that while she thinks they win on the merits, it’s fucking irrelevant because it’s moot. They rescinded and replaced the law that was on the books when SCOTUS agreed to hear this shit, so if they still have a new problem, they need to submit a new case and go through the proper channels again.
Tera Heintz of Morgan, Lewis & Bockius LLP
We’ve seen this tactic before, in a New York State Rifle Association case, when states know they’re out of line, but refuse to budge until SCOTUS agrees to take the case, then all of a sudden they’re like, “Our bad, dawg. We’ll change it.”
While it’s possible some states just coincidentally see the light, and admit the errors of their ways, this seems skeezy at best.
She was like, “their complaint is asking you to invalidate a law on constitutional grounds which no longer even fucking exists. She added, even if they win, what victory can you give them? Nothing, I tell you. NOTHING! The relief they sought when they failed, has already been granted.”
This may seem like a fair argument, as the law was rescinded. But this tactic, is again kinda skeezy. Because the new law replacing it, is offensive to the other side in a slightly different way, and they fucking know it. They effectively admit the other side had a point, but instead of just fixing the error, they try to achieve it by another means, and hope that SCOTUS is so stupid as to let that shit fly.
She goes on to point out that claims filed under the old law, are what the other side is worried about, and those claims will be retroactively amended to the new law. But as the other side argued before, there’s no guarantee this is true, and the law is not written with language that suggests it must be applied retroactively. So they don’t trust this shit further than they can throw it.
Remember, that the new law is supposed to make it so that all workers, federal or not, working with retroactive materials, can now get this presumption that their cancers and shit were because of this exposure to hazardous materials.
Associate Justice Clarence Thomas
Justice Thomas wanted to know, “what if people who benefitted under the old law, want their case updated to the new one?” He’s basically asking, what if their condition changed, and they need more assistance. Maybe the new law doesn’t help them as the old one did, so they want assistance under the old law, where they got help.
Heintz argued that workers who were awarded assistance under the old law would simply refile under the new law if they need new assistance. For pending claims, the new law is retroactive and would be applied to them. Any closed claims under the old law, would need refiled under the new one.
It’s worth noting, they’re here in SCOTUS as an appeal of a Washington Supreme Court (SCOW) ruling. Once SCOTUS makes its decision, it will go back to SCOW.
So Justice Roberts is like, “You’re asking us to assume that SCOW will rule this law to be applied retroactively, right?”
She agreed, stating that that’s how they always come down on laws like this. No reason to think they’ll come down differently here.
But Justice Roberts was like, “You know, for us to moot a case, we need some certainty, and courts are kinda unpredictable.”
She surprisingly said she understood, acknowledging justice Roberts may have a point.
Chief Justice John Roberts
She pointed out though, that the opposition are being rather speculative. They don’t come to court today with any claim of harm or damages, nor do they seek any remedy for them.
They’re asking the court to prevent future damages they fear may occur. But we’re telling you they won’t, and we have good reason to argue as much.
Justice Kagan, being skeptical that she had overcome the high bar SCOTUS has for mooting the case (basically knowing how SCOW will rule), she asked, “Do you have any precedent where we mooted a case just based on previous similar ruling from a lower court, and thus assumptions about how they’d come down on a case we’re considering?”
She didn’t seem to have any cases to cite, but argued that the court could do it if they want.
Justice Gorsuch, jumping on Kagan’s question was like, “By what authority would we just vacate the lower court’s decision, if it’s not moot?”
Counsel Heintz again, surprisingly admitted she didn’t have an answer for that. Justice Gorsuch chuckled and said he didn’t either, and they moved on.
Justice Stephen “Crazy Hypothetical” Breyer, who’d apparently been working on this hypothetical for days, was like, “OK, the old law was about a geographical area, specifically, the Hanford site, and people who worked there, who just happened to be all federal workers.
The new law says it applies to any structure and its lands.
Now imagine, some people who work on the river cleaning out muskrat nests. (Yes, he really said this)
These muskrats pick up some of this radioactive waste, and transport it to their nests. The people cleaning those nests are now exposed to danger, but they’re not near any “structure and its land.”
So what about those workers? You say the new law is very specific, but I’m betting the law doesn’t say a fucking thing about muskrats and their nests. So, I say, it isn’t clear.
What do you say to that?”
She was like, “First of all, you need to stop hitting acid before you come into the courtroom. Secondly, you’d review their case solely on the text of the new law. “
But justice Breyer was like, “But imagine these people filed fourteen claims under the old law, and they won the first thirteen under the old law, but 14 isn’t decided yet. Now, the federal government wants their money back on the first 13, and they want the worker to lose on claim 14, even though the precedent was decided in the first 13 that they won. What say you?”
She was like, “Claim 14 is independent. The 13 previous have no effect on the pending 14th claim, which can only consider the new law’s text.”
Justice Alito then asked, “If this old law is so dead, why do you care if we invalidate it?”
Associate Justice Samuel Alito
Her response seemed to suggest that she was simply trying to save the justices some time. Not sure I buy that argument.
I think the concern for them is that if SCOTUS issues a broad ruling, it could fuck up their new law, too. But if they moot the case, then nothing changes for them.
Justice Alito then asked if the 1936 waiver law allows the state to single out a particular federal facility by name?
She agreed that it could, and that in fact, when the 1936 waiver was enacted, states were already doing that. So this is why she thinks the oppositions argument is invalid.
It’s also worth noting, that this seems to only apply to workers contracted by the federal government. Federal workers are covered by the Federal Employee Compensation Act (FECA). She wants to be able to discriminate against these workers who are specifically, not employees of the federal government, just simply paid and contracted by them.
You might have thought that Justice Stephen “Crazy Hypotheticals” Breyer had worked so hard on his muskrat hypo, that he was exhausted. But he was not.
Associate Justice Stephen Breyer
He then jumped in with this:
I mean, that is exactly the question that is bothering me.
I mean, one day in the legislature a group of federal employees from Hanford show up and they say: You know, it’s tough being a federal employee.
People in the state make much more money.
We have more dangerous jobs.
And the state laws generally are pretty fair to their workers, but try working for the federal government.
This is supposed to strike a chord of agreement. So they say: Now you can’t do much for us because you’re a state legislature, but I’ll tell you one thing you can do.
What you could do for you is you give us, if we’re hurt, and define hurt very broadly, please, so that if we’re even hurt a little bit, we get millions. Now we’ve got to watch that number but, really, it’s high.
And you know the wonderful thing? If you make private employers pay this in the State of Washington, they are voters, so you have to worry about them. And if the government pays for it in the state, well, that’s a problem, you’re going to have to raise taxes.
But do you know who’s paying for this one? The feds.
The feds will pay, the taxpayers in the other states.
So let’s go and really hit the ceiling and we’ll really pay a lot of money and we won’t have to pay for it. Okay.
I know projects like that.
I won’t say which they are, but there we are. Now, to me, did I think Congress intended that? Hmm.
It’s going to take quite a lot of doing before I think they wanted that result.
Now that’s that’s where I am.
So what do you think?
Counsel Heintz responded by pointing out that if congress doesn’t like it, they can always amend the waiver—that’s their right. It’s a broad check against the abuses Justice Breyer outlined in his hypothetical.
Justice Kagan, not interested in hypotheticals like Breyer, glommed on to his line of questioning, though. She asked:
Ms. Heintz, I think the question was really a question of, like, you know, maybe you’re right about the text, but why would Congress have done that? I mean, we can’t really believe that that’s what Congress meant to do. And if you take all the other statutes which you gave us and you said, look, the text is different, and you’re right, the text is different. But, at the same time, we know that Congress has a kind of modus operandi with respect to this, and it basically always says whatever you do elsewhere you can do for facilities like Hanford. It doesn’t say, you know, whatever you could dream of doing elsewhere but actually wouldn’t you could do to federal facilities. And I think that that’s what Justice Breyer is asking.
Like, what sensible Congress would have written the statute the way you say it ought to be read?
Associate Justice Elena Kagan
Counsel Heintz was like, “The federal contractors participated in the political process when the waiver was written. So congress was aware of their concerns and where the shit might go when they wrote the waiver.
Sure, maybe congress didn’t expect us to go THIS far, but they already knew there were other rules like this, that singled out specific facilities.
She also points out that the Hanford site is the riskiest environment in the country to work in. So they surely also knew that special rules might be needed for this fucking place.
Justice Barrett question if the 1936 waiver’s language seemed to be aimed at regulatory agencies, not the state legislature.
Meaning, does the waiver apply to the state passing laws, or only to the regulatory agencies in the state passing regulations? If it’s the latter, then that assumes there’s already a law on the books creating an agency and giving them the power to regulate this.
She seemed to be hinting at the idea that the waiver was granted based on statutes that already existed, and the waiver was responding to them. So if there were new laws passed, would that potentially invalidate the waiver, and require a new waiver to be passed before they could do this?
They agreed, that sounds crazy. But Justice Barrett was essentially arguing that the waiver is directed towards the regulatory agency, not the legislature. But it’s the legislature who enacted the new statute.
Counsel Heintz argued that the waiver did not specifically distinguish between laws and regulations, and as such, the waiver should apply to the new law.
In a unanimous opinion, authored by Justice Breyer, counsel Wentz was unimpressive in her arguments, and the state law is invalidated. When the federal government waived immunity, it certainly didn’t anticipate that the states would bend them over and fuck them in the ass in ways it wouldn’t dream of doing, if the state or local businesses were paying for it.
Hear oral arguments or read about the case here at Oyez or at SCOTUSBlog.
In the United States, we treat our military with a certain amount of reverence and care.
I assume most people know, that if you’re enlisted in the reserves or National Guard, which are temporary military roles where you serve a handful of weeks a year, and one weekend a month, that your employer cannot discriminate against you in some way, for doing this, either before you were employed with them, or during so.
Meaning, if you were enlisted first, and apply for a position, your employer can’t decline to hire you, because of your military status.
If you were employed first, and then opt to join the reserves after, same principle. You’re company cannot fire you, because they know you’ll now be missing time, that you otherwise wouldn’t, playing with guns, tanks, airplanes, and shit.
Another facet of this law however, is if you happen to get called to go kill some fucking terrorists, or other random enemies of the United States, your employer must have a job for you, when you come back.
It’s not so much that they have to keep your job open—that’s unfair to just not have that work done at all, while you’re gone.
So, when a soldier returns home, if their employer can return them to that job, great. Otherwise, a job of similar work, and equal or better pay, will suffice as well. Basically, the soldier shouldn’t be harmed or underpaid in any way, because they were missing for a year or two, snuffing out some assholes on your behalf.
Now that you understand that, in walks a damn-fine American, Leroy Torres, who joined the Army Reserves in 1989, became a Texas state trooper in 1998, then in 2007, got sent to Iraq to fuck some shit up.
However, while in Iraq, what got fucked up, were his lungs. So in 2008, he was honorably discharged for medical reasons.
Our military has a long history of doing whatever it takes to get shit done, sometimes throwing caution to the wind. A less than glorious part of this in Iraq, was getting rid of chemical waste and other dangerous things which they felt needed to be destroyed.
Did the Army create special hazmat disposal sites, with fancy equipment and shit to protect people getting rid of it?
Well…
Clip of the federal government responding to soldiers asking for special hazmat disposal equipment in Iraq
Instead, they dug some big fucking holes, tossed the shit in, and like any real man would do, lit that shit on fire—it’s our love language.
But as you can imagine, the fumes did some serious, and irreparable harm to these fine men and women, engaging in extreme s’more manufacturing.
Let’s be clear about what he endured. A shitload of ER visits, which the Veterans Administration tried to deny paying for, attempts to deal with his condition with unproven alternative therapies, which us pro-science people consider especially heinous, as it’s often charlatans bilking people in need, with therapies that have no evidence supporting them. Then, most sadly, he made a choice to deal with it in the ultimate way—committing an act of suicide, which was thankfully unsuccessful.
Iraq Burn Pits
Seriously, any soldiers who may stumble upon this, know you are loved, respected, and cared about. Please don’t ever consider ending your own life.
Seek help—there is so much available to you, both professionally, and from family and friends. Never be afraid to tell people how you’re feeling. No one will judge you negatively for it.
I have many veteran friends, and I’d be honored if they came to me to talk about their struggles—certainly not bothered in any way. I promise I’m not unique in this.
The people around you, that you think would be better off if you were gone, absolutely do NOT think they’d be better off if you were gone. They love you and care about you, and would miss you immeasurably if you were.
We all have our pride, but never let pride get in the way of asking for help. There are people out there who are fucking great at helping you deal with these things. Let them do their job, and you fight the most important fight of all—being around for your loved ones.
Well, his health issues really tested the limits of USERRA. He could no longer carry out the duties of working for the Texas Department of Public Safety (DPS) as a Texas State Trooper. The only job they had for him, was a low-level temp job, which he wasn’t interested in, as it felt pretty demeaning and unfair to him.
Leroy Torres
So Torres argued that he was effectively being discriminated against because of his military service and ensuing physical injury, which USERRA prohibits.
Torres would go on to become quite the champion of his fellow burn pit victims, and eventually help to create the PACT Act, which aimed to make sure other burn pit victims didn’t have the VA issues Torres did. It was eventually signed into law by President Biden.
I don’t want to deviate too much from the case, just know that the issues arose from the VA not acknowledging that the illnesses these soldiers faced, were because of the burn pits. As such, they denied covering them. It was an especially heinous act from whomever was running the VA at the time.
So, is this why were at SCOTUS?
Well, no.
I don’t know if we’ve really talked in detail about this, so let’s cover it now. I know we’ve covered that SCOTUS is almost always an appellate court —as opposed to original jurisdiction.
The way appeals work, and I’m simplifying, is you have your initial day in court. Along the way, you think the judge or the opposition, are unfairly harming you and your case. So you (via your lawyer) yell…
I know on TV, it just looks like a baller thing to do. But it also is a legal distinction that you’re putting on the record.
Imagine you lose the objection, and the judge overrules it, then you end up losing. If you believe the objection was valid, and it being overruled was the reason you lost the case, you can appeal that objection.
What people tend to think, is if you lose a case, you go to an appellate court, and they hear the whole fucking case again. Well, they don’t.
If you’ve listened to any of these oral arguments, think back on them, and you’ll see what I mean.
All the appellate court does, is hear the arguments about your objection, decide if it was wrongly overruled (or vice versa, if the opposition objected and it was sustained).
If they agree with you, they basically correct the overruling, send that shit back to the lower court to re-review, potentially rehear the case, and then redecide based on the new standard they set.
So in this case, the issue at hand for SCOTUS to decide is whether USERRA is allowed to step all over Texas and its state sovereignty, and allow Torres to sue Texas.
Texas however, argues that the federal government, via USERRA, has no fucking right to tell Texas Super Troopers to take better care of Torres.
If Torres wins, then Texas cannot make the argument that it’s their sovereign right to employ Torres how they want. Got it?
On to the arguments.
First up, counsel Andrew Tutt, in his first time arguing before SCOTUS, representing Mr. Torres
He opened by pointing to the constitution’s language on the federal government’s power to have a military, and defend the nation with it. Then, he argued, only a fucking idiot would think that the states would have a right to interfere or reject that power.
As such, USERRA, plays a pivotal role, in the federal government’s ability to build a fucking military. Who the fuck would join the reserves if the federal government didn’t have the power to make and enforce laws like USERRA?
So it follows that DPS are fucking idiots.
He was stumbling over his words a good bit, at least enough for me to remark on it, but hey, it is his first time here. I’ll cut him some slack.
Andrew Tutt
At issue is whether the federal government can pass a law allowing private citizens to sue a state.
Justices Roberts started by asking about previous cases Allen and Katz.
We’ll talk about Allen first, which is from 2019 case Allen v. Cooper. In that case, a photographer had taken photos of Blackbeard’s Treasure, which were taken in North Carolina. NC liked the photos so much, they put them on their own website, without even asking Allen permission to do so.
He sued the state for copyright infringement. But NC showed him, they passed “Blackbeard’s Law” which basically said they couldn’t be sued for using works which the federal government had copyrighted. Cheeky naming the law after a fucking thief, which they then used to steal someone else’s work.
It was eventually repealed in 2023.
SCOTUS agreed in that case, that the state had a right to pass such a law, and that law trumped federal law protecting copyright holders. Therefore, Allen was shit outta luck, getting NC to pay him for their use of his photos. In so doing, SCOTUS invalidated the federal law called the Copyright Remedy Clarification Act (CRCA).
This matters for our case today, because it basically says that the states can tell the federal government to go fuck itself, under certain conditions.
Conversely, Katz is a 2005 case called Central Virginia Community College v. Katz. This dude named Katz was owed some money from several state-run colleges, through bankruptcy. Virginia tried to argue state sovereign immunity meant they couldn’t be sued. But the SCOTUS at that time said the federal bankruptcy laws trump state sovereign immunity, and they have to pay.
Supreme Court of the United States Chief Justice John Roberts
So you see the conflict here. Allen accepted the states could pass a law preventing themselves from being sued, but Katz said states couldn’t just not pay someone they owed, because federal bankruptcy laws trumped any state law saying it didn’t have to pay.
Torres, in his briefs, cites Katz to support his case. But Justice Roberts’ question was asking, if Allen seems to be so contradictory to Katz, doesn’t it stand that Katz was narrowly decided on just bankruptcy grands, and not trumping state sovereign immunity altogether?
Justices Barrett and Kagan also seemed very curious about this point.
Counsel Tutt seemed to suggest that these two don’t conflict with each other, because one is about canceling state sovereignty altogether, whereas the other is merely about a waiver under certain circumstances.
Justice Barrett suggested that the difference seemed to be that bankruptcy, and eminent domain powers, which override state sovereignty, are the result of court proceedings. Suggesting that you’d have to get some victory in court, before you can tell the state to go pound sand up their ass.
But in Torres’ case, he’s relying on some federal law invalidating a state’s sovereignty, as opposed to constitutional powers, or a court decision.
Justice Kagan, being confused by his rational, asked:
Complete the sentence for me. The war powers are different because what?
Associate Justice Elena Kagan
Counsel Tutt replied:
The war powers are different because they are conferred unconditionally and without qualification.
His argument going back to his opening statement, that the framers intended for the government to be able to form an army, or militia, in times of need. And that since there was no land that wasn’t part of a state, the war powers would have no men to choose from, if they didn’t pluck them from the states.
Justice Kagan asked about a similar situation where the federal government, to protect native American rights, passed the Indian Commerce Clause, which purported to tell the states, they had no authority over Indian tribal lands, and SCOTUS then told congress, they could suck a giant Indian dick.
Justice Kagan, kept hammering, saying that they seem to be asking the question that during the framing of the constitution, they would have had certain expectations about what state’s had as rights, and what they didn’t. She was having a hard time expecting that the states wanted to allow the federal government to force them to give a militia person a cushy job.
Counsel Tutt again pointed out that the constitution makes it very clear, that the federal government’s war powers are sacrosanct. Whereas the federal government’s rights to tell states they have no power over native Americans, isn’t covered in the constitution in any way, and was just a power-grab attempt by congress that the court rightfully struck down.
Justice Barrett agreed that the war powers were rather strong, from the federal government, and that the government could sue Texas over this, if it wanted to. But where does it give Torres himself this power to sue them?
Associate Justice Amy Coney Barrett
Counsel Tutt was like, “the federal government, when it passed USERRA, knew that the best way to protect those rights, was to give them to the people it was intending to protect, the power to sue on their own, so they wouldn’t rely on the federal government.
We all know, government workers are inefficient and lazy (except for you assholes in robes), so better to remove them from the equation.
He even cited that there had been thousands of examples where people did attempt to go through the department of labor, and those worthless fucks did nothing in all but nine cases.
Justice Alito then chimed in and pointed out that the federal interstate highway system was created under war powers, and forces states to build the interstates within their borders (with funding from the federal government).
So Alito asked, can someone sue their state for having a shitty interstate highway that damages their car?
Tutt seemed rather surprised by this question, but trying to think quickly on his feet, simply suggested that there may be a limit on the war powers, that the federal government imposes on itself, but that the states don’t get to limit it.
He pointed out that while congress used the war powers to justify the interstate highway system, that is just a connection they made, and certainly not what the framers had in mind when they created the war powers.
However, recruiting soldiers sure as fuck is. It’s pretty much the one thing that has to be part of the war powers.
He goes on to say that Texas seems to think that the constitution considered the war-making powers strong, but still wanted the states to retain power to rebuke those powers where it saw fit, and he thinks that’s just fucking nonsense. He argues that they instead, specifically gave up that authority in this context.
Justice Thomas sought to understand where there were instances of state sovereignty being waived for money damage suits?
Associate Justice Clarence Thomas
Counsel Tutt pointed out several instances where the federal government had sued states for monetary damages.
But then Justice Thomas was like, “I’m not too fucking concerned about the US government, I’m concerned about private people suing states.”
But counsel Tutt was like, “That shit matters, Justice Thomas. Because these assholes over h’yar, say that if this case had all the same facts, but were The United States v. Texas Department of Public Safety, they’d wouldn’t have fought it.
So we’re saying, that it shouldn’t matter who’s suing, what matters is the merits of the claim.
One thing that is often brought up in this case, is a “Plan of Convention” argument, versus abrogation.
Yeah, I had to look that shit up, too.
So, in order to protect states from just having law suits falling out of their ass like never-ending diarrhea, the states are indemnified from the people suing them, except where they specifically agree to be sued.
I know it sounds kinda fucked up that states have to agree to being sued. When would they ever consent to be sued? That sounds weird.
Well, they don’t mean, like, “OK, you can bring this suit against us.” They’re referring to a time where they accept that they’re not immune (or are sovereign) in certain instances, then down the road, one of those instances occurs.
“Plan of the convention” refers to the meetings the states had, when creating the constitution.
Constitutional Convention
So counsel Tutt’s argument is basically saying, that by the states ratifying the constitution, including the war powers clause, they consented, or waived the right to immunity, over any violation of the war powers clause at convention of states, when they created the constitution.
So his argument is, that there’s no need for the courts to cite precedent, laws, or anything else. This is a “Plan of Convention” waiver of state sovereignty.
It gets tricky for him, because other constitutional issues, like commerce, coining money, and a bunch of other shit, haven’t traditionally been considered to override state sovereign immunity, and the justices have repeatedly sought to understand why counsel Tutt thinks this is different.
His argument is that the war powers provision, is fundamental, to the whole of this nation, to protect itself from not being a nation anymore. Those other punk ass provisions, deal with how the nation should operate among the states. So since the states sort of compete with one another in our commerce system, they band together to defend the nation. That seems to be his distinction on that.
Abrogation, on the other hand, is the federal government, or SCOTUS telling the states, “Fuck you, you can be sued for this shit.” This derives from the 14th amendment, which forbade states to allow slavery, and required due process under the law, as well as other shit. So the federal government effectively took power away from the states after the constitution had been originally drafted.
14th Amendment to the United States Constitution
In simple terms, “Plan of convention” is voluntary, abrogation is imposed.
Next up, we have counsel Christopher Michel, representing the United States, as an amici for Torres. The United States is not directly involved in the suit, but they have enough of an interest, that they were allowed to participate in the hearing.
He came in hot, by saying, “You assholes have NEVER put a limitation on the constitution’s war-powers, and USERRA is vital to that effort. So you’ve got no business giving Texas the power to limit that shit now.”
Justice Neil “Golden Voice” Gorsuch asked, “what are the fucking limits of these constitutional waivers? Can anyone bring any fucking suit to any state over anything that seems tacitly related to the constitutional powers. This shit could get pretty ridiculous, no?”
He then referenced, going back to Alito’s point about the highway system, could someone sue the state for punitive damages because there was a pothole on the highway that damaged their car?
He was then like, “Why couldn’t congress just conscript people? That shit worked for a while. They didn’t have to make this USERRA statute. So why is USERRA connected to the constitution when there are other ways to ensure we have soldiers to fight wars.
Christopher Michel
Counsel Michel’s response didn’t really seem to answer the question specifically. He acknowledged, the pothole argument would be much tougher to defend, and likely wouldn’t stand up.
But he didn’t really draw much of a distinction. Also didn’t address conscription.
He seemingly answered the question he wanted Gorsuch to ask, and just made it clear, that he didn’t see a clear path to draft an Army without USERRA, and therefore, rejecting it as a violation of state sovereignty, against suits from individuals, violates the principles the war-power clause defined.
He then went on to point out to questions from Justice Kavanaugh, that one of the first things volunteers for the reserves and the National Guard ask about when considering joining, is “what about my civilian job?” It’s a major concern, and a huge factor in their choice to volunteer.
Last up: Counsel Judd E. Stone
He chimed in with a distinction mentioned earlier. That states didn’t sign away their fucking sovereignty to private citizens—it signed it over to the federal government. So if the United States wants to sue Texas over this shit, we would accept it. I know they’re here as an amici, but they didn’t see fit to file for Mr. Torres.
The states can’t just let every Tom, Dick, and Harry fucking sue us.
I think what’s also at issue here, is monetary damages. If Torres just wanted them to give him a job or something, the US might have filed for him. But he’s also demanding monetary damages, and I think that’s ultimately what Texas is pissed about, and why the United States isn’t the opposing party.
Judd Stone
Justice Roberts first asked about the other side’s argument regarding “Plan of Convention” waivers.
Counsel agreed, this is their strongest argument, however, he indicates that these waivers are about what the states gave away, and what they didn’t.
In other words, they expected the federal government to field an Army, and are willing to concede that power to the federal government.
He believes, however, that in no way, did the states anticipate a law like USERRA, then people suing for monetary damages over it, and therefore would not have consented to be sued over such things.
Justice Kavanaugh then asked, “We allow private suits in bankruptcy, such as Katz, and we also allow them in eminent domain suits, FMLA violation suits, etc., so why not for war-powers issues?”
Counsel Stone responded that these other decisions, such as Katz, were narrowly suited to those particular issues, which were not war-powers issues. So as much as they may seem similar, they’re not the same, and therefore don’t apply here.
Justice Kagan asked, “In what fucking world, could people sue under eminent domain, and somehow not be able to sue under the war-powers clause? Certainly war powers are more important to national security than eminent domain, right?”
Associate Justice Elena Kagan
Counsel Stone agreed that war powers are obviously pretty fucking important. But he argued that while no one doubts the federal government possesses the right to declare war and field an army, it didn’t grant the right for the people to sue the states over a law, that’s related to fielding an army. The states may have wanted to keep the power to determine for themselves, how best to provide the federal government with soldiers.
For instance, some states might want conscription, while others wants volunteers. There’s no evidence that the states gave the federal government the power to decide this issue for them.
Justice Barrett then asked, “If the states gave up this huge power to field and army and go to war, why would they seek to retain power over how to field the army. That seems rather irrelevant compared to what they gave up, right?”
He was like, “Nope. They guarded the hell outta that shit. If they didn’t specifically give it up, they have every right to expect to keep it.”
Justice Barrett then asked about the potential for states thwarting war efforts. For instance, after Vietnam, there was a lot of condemnation by states over the war, and many soldiers didn’t get the hero’s welcome they deserved upon returning home. So if DPS wins, can they then decide, for instance, if the US opts to get involved in helping Ukraine, that they don’t think it’s a good war, and refuse to participate with their soldiers?
Associate Justice Amy Coney Barrett
Counsel Stone responded that the US is perfectly fine to file suit against Texas, and in this scenario, would. That’s different from here, where Torres himself is filing suit.
Finally, in rebuttal, counsel Tutt reminded the court, that in the Federalist papers #23, Hamilton said that war powers ought to exist without limitation, because it’s impossible to see into the fucking future and know what’s needed.
This mother fucker on the other side of the aisle, is trying to limit it, and he’s fucking wrong for doing so. That’s all I got.
In a bipartisan majority, where justice Roberts and Kavanaugh joined Justices Breyer, Kagan, and Sotomayor, Torres came out victories.
They agree that by joining the United States, they agreed to give the federal government the power it needed to wage war, which extends to a private individual suing them, if the state were to violate a war-powers federal statute.
The remaining justices, wary of giving the federal government such unrestricted powers, disagreed. Their opinion hinged around giving private parties to sue, in relation to these federal powers. They felt that was just a step too god damn far.
Hear oral arguments, and read about the case, and the opinion here at OYEZ.
No one knew at the time, that it would be a landmark case, initially, it was your basic snooze fest. But, it has since been cited in other cases over 18,000 god damn times.
Was Chevron a fascinating case with a compelling opinion? That’s a big nope. And, since this isn’t our case today, I’m just going to give a simple overview.
But before we get into that, we need to explain a distinction I don’t think I’ve covered before.
In the United States, we tend to think that congress are the only people who write laws. While this is the framework the constitution lays out, it gets complicated.
The word law, for our purposes, is a generic term that basically encompasses anything the government has created to control, regulate, or restrain itself, or the people. But, there are five types of things that carry the weight of law, which have different purposes.
The Constitution: It is the document creating government and restraining government, which all other laws derive from. So it’s the shit. From there, if:
Congress wrote it: This is called a statute, often called an act. This is how the constitution suggests laws are to be passed, and aside from the constitution, they carry the most weight.
The courts wrote it: This is called case law, or precedent. The constitution didn’t really grant this power to the courts, SCOTUS gave it to themselves in Marbury v. Madison (1803), by suggesting the constitution gave them this power when it created the courts and ordered them to interpret law. (That said, congress can then rewrite the law—invalidating the opinion. However, if the courts strike down a law as unconstitutional, congress can’t just repass a law with the same unconstitutional premise—they’d need a constitutional amendment to do that.
The executive (president) wrote it: This is called an executive order. Also not in the constitution. It derives from the president’s authority to execute the law. It was not initially intended to be law, so much as a temporary order. If the president needed to act quickly in an emergency, and congress wouldn’t have time to act, the president needed some power to get shit done, so this is what they came up with. It carries the weight of law, but congress can simply write a new statute invalidating or clarifying it.
An agency wrote it: This is called a regulation. It is meant to expand upon laws (statutes) congress wrote, not to have been new law created from nothing.
As you can see, congress ultimately has the broadest power to write laws, since they can invalidate any other forms of law, aside from the constitution itself.
President Barack Obama delivers a health care address to a joint session of Congress at the United States Capitol in Washington, D.C., Sept. 9, 2009. (Official White House Photo by Lawrence Jackson)
This case will specifically hinge around statutes and regulations, so I will make sure to use those terms appropriately. I wanted to make sure you, the reader, understand those distinctions, as this case is all about that shit.
We all know about the Environmental Protection Agency (EPA), right? Well, the 1970 Clean Air Act was their jam. It had a rule that said any new major “stationary sources” of pollution had to have a permit.
The idea was, if you had a factory or some large device in a place of business which was putting out pollutants, when it came time to replace that shit or build a new one elsewhere, it required a permit. The permit would then require that the replacement was cleaner than it’s outgoing counterpart.
However, to make life easier, if a company had for instance, a group of major polluting devices that worked in concert together at one location, then one of the components of that group took a shit, the company could replace it without obtaining a new permit, so long as the replacement component didn’t increase the total pollution coming out of the whole “bubble” of devices, as they called it.
It didn’t have to be better, just equal.
So, Chevron went about replacing one of these polluting devices, without upgrading it, under this bubble rule.
Great googly moogly, did that piss off environmentalists—they were none too fucking pleased. They wanted it replaced with a cleaner device.
Since the Clean Air Act (a statute written by congress, remember) didn’t really define a “stationary source” very well, the EPA (a regulatory agency) wrote the “bubble” rule into their regulation to clarify.
In their infinite wisdom, they felt it was a reasonable interpretation of the Clean Air Act’s intent—they were the experts after all. They didn’t think that just needing to repair an otherwise operative system somehow meant a company had to overhaul it completely. Not to mention, sometimes upgrading one component would require upgrading all of them, which could get really expensive.
But of course, environmentalists are the most nauseating group of social justice warriors that ever lived, and they decided to file suit, arguing that the EPA had no right to create this definition out of nowhere, just because it wasn’t well-defined in the Clean Air Act.
SCOTUS however, decided that since the Clean Air Act was ambiguous on this shit, and the EPA were the fucking experts, in such situations the court should defer to their judgement.
This one ruling, and the precedent it set, eventually translated into the idea that all government agencies should be deferred to, going forward, if they made a regulation in their expertise, that clarified ambiguous statutes written by congress, used to create the agency, or written to be regulated by that agency. It became known as the Chevron Deference, and it has been case law ever since.
As you can imagine, with a lot of government agencies, and a shit-ton of regulations, it makes sense that this case has been cited 18,000 times.
Now that you understand the basics of Chevron, let’s move on to our case today.
A group of fisherman (Loper Bright Enterprises) liked to fish in federal waters. But in this country, we often have a problem with over-fishing, where these commercial vessels take so many fish, that those populations of fish can’t reproduce fast enough to keep the species around for others to fish later.
Congress had had enough of this shit. They passed the Magnuson-Stevens Act (MSA), which is enforced by the National Marine Fisheries Service (NMFS), a federal agency, similar to the EPA referenced in the Chevron case above, albeit much smaller.
I know what you’re thinking. You’re thinking, “So how the hell does the government make sure that some asshole fishermen don’t overfish an area? They’re in the middle of the fucking ocean!”
No, it’s not with satellites, or sharks with laser beams on their fucking heads. They decided that they would require these fishermen to take a fed out on the boat with them. What made it worse to the fishermen, they had to fucking pay that fed to sail with them.
Imagine, in order to prevent speeding, if the Highway Patrol made you carry an officer in the car with you, and pay their salary for doing so. It’s hyperbolic, and just used to illustrate the point, but you can see why they might have beef with this.
The Magnuson-Stevens Act passed by congress didn’t specify this was the plan, but the NMFS decided to write that regulation, presumably because they couldn’t afford to pay these narks on their own budget. Since Chevron suggested such ambiguous law could rightly be clarified by them, they fucking went for it.
Under Chevron, the courts couldn’t really undo the rules made by NMFS, since the MSA didn’t create a clear rule for them to follow. So that’s why we’re here. To determine if these fishermen have a fair beef with NMFS, and potentially, if a previous SCOTUS was running a little fast and loose when creating this Chevron deference shit.
I’m going to go out on a limb, and explain the politics of this, because why the fuck not.
It’s important to understand a couple things. Remember, regulatory agencies are created by statutes which congress writes, but then the head of that agency is appointed by the president (with the consent of congress), and can by fired by that president, if the president is unhappy with the work they’re doing.
As such, a regulatory agency, is essentially, part of the executive branch.
So the concern, is that there are situations where the president might want congress to pass a statute, but Congress simply don’t have the votes to do so.
So what may happen, is the president looks at the regulatory agencies they oversee, and if one has some tacit connection to the statute they wanted passed, but couldn’t get passed, they tell the head of that agency to write a regulation that resembles the law they wanted. And then—abracadabra-alakazam—you have a law, and you didn’t need congress to pass it.
Since the constitutional principle of separation of powers suggests laws are to be passed by congress as statutes, and not the executive orders or regulations that come from the president, you can understand the separation of powers issue some people have.
People on the right tend to be for limited government, or at least that’s what they say, so they aren’t keen to give presidents this much power.
For Democrats, they argue that if a law is ambiguous about something, it makes sense for regulatory agencies to clarify. They’re the fucking experts, and it’s why congress creates these agencies in the first place.
For instance, imagine congress passes a law that creates the EPA, and says they’re supposed to ensure that the CO2 levels in the air stay within a range that’s acceptable for all current life on earth.
Since they don’t provide an actual number, it’s ambiguous.
So then they rely on the nerds at the EPA to do some science, come up with a number, and make that the regulation. Scientists are open to revising their beliefs based on new information, so if they find out their number is wrong, they can easily update the regulation based on the new science they did.
But you know who wouldn’t figure out what that number is? The fucking courts. They’re law nerds, not science nerds.
Now that you understand both political arguments, you know what I think? They’re both fucking right! They’re making extremely valid points.
Here’s where the politics come in. The left argue that the right are basically rebuking the expertise of the scientists, and instead, acting like they can do just as good of a job interpreting this shit.
They argue that this “separation of powers” issue is swamp gas. But this, I have a problem with.
I won’t re-explain the whole thing here, just know these basic facts.
Joe Biden is not an expert in virology or communicable diseases.
During the COVID pandemic, Joe Biden wanted congress to pass a law requiring everyone get vaccinated, and if not, to wear a mask in public. Presumably for as long as the CDC suggested we were in a pandemic.
Democrats were tacitly supportive of this, but Republicans were like, “Absolutely not! This is America. We’re a free country, and we don’t do shit like this.”
Joe Biden, being the senile by crafty fucker he is, unable to get congress to pass such a law, asked OSHA to make a regulation requiring vaccinations or a mask in the workplace, instead. This effectively would have had almost the same effect as the law he wanted, since the unemployment rate is only about 4%.
SCOTUS overruled that regulation, and Biden lost. But at the time, for whatever reason, they did not overturn Chevron.
President Joe Biden
So like it or not, there was a real world example of precisely what the right-wing were complaining about, that is quite recent, and quite true. A non-expert president, overstepped his constitutional authority, and bypassed congress to achieve his political goals.
So accusing the right of being conspiratorial and shit, is pretty unfair, in this case.
Anyway, now that you know all that, on to the arguments…
Up first, for the Loper Bright team, represented by veteran SCOTUS counsel Paul Clement.
Paul Clement
He opened first, by arguing that the expense of lugging around, and paying for, a fed on a fishing boat isn’t insignificant. It can be as much as 20% of their cost, for a smaller operation.
Not to mention, some of these boats are small, and an extra person gets in the way.
But then, he went after the big fish—the Chevron deference itself.
He spent most of his opening remarks saying that this deference was wrongly decided, and should be abandoned, while maintaining that the Chevron case itself was probably fairly decided.
His argument is that the courts need not determine whether the statute is ambiguous, and therefore a regulatory agency has the unquestionable right to clarify. But instead, that the courts should do what they always do, give their opinion as to what the best reading of the statute is.
Justice Thomas started by asking counsel about mandamus. What is mandamus you ask? I had to look that shit up, too.
Mandamus is when the courts, issue an order to a lower government official, telling them to do their fucking job the way they think that person ought to do it, under the law.
So for instance, if a higher court thinks a lower court have wrongly denied an innocent person their freedom on appeal, and that lower court refuses to take the actions needed to release the person, maybe because they’re arrogant cunts who think they could not have possibly fucked up, they may use a writ of mandamus and basically say, “We weren’t asking, motherfucker—release him now.”
So the nature of his question, is about whether higher courts should tell lower courts how to consider these questions, versus what the opposition wants, which is to defer to regulatory agencies and their expertise, in matters where the law isn’t very specific.
Clement was like, “the constitution gave the power to interpret law to the fucking courts. Then your predecessors, in Chevron, basically gave that power away to the executive branch, since regulatory agencies answer to the president. That’s some grade A bullshit, right there.”
So in summary, he’s saying it’s a separation of powers issue, and the court was wrong to relinquish that power. Unless we’re to amend the constitution, interpreting statutes is the job of the fucking courts.
So if a statute is ambiguous, either congress needs to rewrite it, or the courts get to interpret it. The courts are certainly free to agree with a regulatory agency, but Chevron suggests they shouldn’t even look at the agency’s regulation if the statute is ambiguous, and that shit is wrong.
Justice Sotomayor, digging her heels in early, accused Clement of using some wonderful rhetoric.
Official Portrait of United States Supreme Court Justice Sonia Sotomayor
Click for Biography
She stated that if a statute uses the word “reasonable,” that it’s delegating the authority to define what is reasonable to the agency the statute created.
However, Clement was having none of this shit. He was like, “the law on domestic fisheries is that they shouldn’t incur more than 2-3% of the cost of the catch—clearly they fucking thought about this issue.
So by what reason would your dumb ass think a 20% expense for these fishermen fishing off-shore waters is what congress intended? Have you ever even running a fucking business?”
While I’m sure the regulatory agency feels empowered to do such a thing, their power comes from congress, and congress wrote similar provisions into the statute where they capped it much lower.
So the problem with Chevron is, courts would normally answer statute questions—they’re the fucking experts on that. They should be well within their wheelhouse to look at one, and say, “this dog doesn’t fucking hunt.”
Justice Roberts, coming to the defense of Chevron asked, “It seems to me, you’re arguing that the law is not ambiguous, and therefore Chevron doesn’t apply. Right?”
Supreme Court of the United States Chief Justice John Roberts
Counsel Clement was like, “let me put it another way. Chevron says, if you look at a law, and you think you could interpret it in more than one way, you assholes normally decide what the best interpretation is.
That’s your fucking job.
So why would it make sense, in this Chevron context, to all of a sudden be like, ‘Nah, we’ll let the president and his fucking minions sort this shit out.’?”
Justice Kagan chimed in next and said, “Listen you little fuckwit. In normal statutes, if congress writes a shitty fucking law, you’re right. We’re on our own interpreting that shit. We do our best best with our legal expertise.
But if there’s a law that creates an agency, congress has given us a tool to answer such questions in the form of experts. Hell, you could even argue, that the law specifically created the agency to answer those questions. But you’re saying we should shove that tool squarely up our asses and ignore it? I think not.
We’ll use that tool, because a lot of times, they fucking understand the issue way better than we do, and why the fuck wouldn’t we defer to them when congress created them for that purpose?”
Counsel Clement then tried to argue that they had an amicus brief from the House of representatives saying it doesn’t want Chevron. But boy did he fuck up mentioning this, because Justice Kagan fucking drilled him.
She rightly pointed out that congress has the power right now to overturn any aspect of Chevron it wants with new law. Clearly they fucking don’t have the votes. For forty fucking years, they haven’t done so. So you and I both know, it’s just a bunch of your right-wing assholes that wrote that shit, not congress as a whole.
Associate Justice Elena Kagan
Counsel Clement regained his composure, and put Justice Kagan back on blast with this:
It’s really convenient for some members of Congress not to have to tackle the hard questions and to rely on their friends in the executive branch to get them everything they want. I also think Justice Kavanaugh is right that even if Congress did it, the president would veto it.
And I think the third problem is, and fundamentally even more problematic, is if you get back to that fundamental premise of Chevron that when there’s silence or ambiguity, we know the agency wanted to delegate to the agency.
That is just fictional, and it’s fictional in a particular way, which is it assumes that ambiguity is always a delegation. But ambiguity is not always a delegation.
And more often, what ambiguity is, I don’t have enough votes in Congress to make it clear, so I’m going to leave it ambiguous, that’s how we’re going to get over the bicameralism and presentment hurdle, and then we’ll give it to my friends in the agency and they’ll take it from here.
And that ends up with a phenomenon where we have major problems in society that aren’t being solved because, instead of actually doing the hard work of legislation where you have to compromise with the other side at the risk of maybe drawing a primary challenger, you rely on an executive branch friend to do what you want.
And it’s not hypothetical.
He’s not wrong. The above Biden example, with his OSHA vaccine mandate—is exactly what counsel Clement is pointing out.
Counsel Clement also mentioned a “Brand X” decision often in his arguments, citing it as a prime example supporting his argument.
He’s referring to National Cable & Telecommunications Association v. Brand X Internet Services. A case where the Rehnquist court in 2005, decided that Brand X, a broadband internet company, who was trying to avoid telecommunications regulations by saying it was an internet company, won their case, because the FCC basically stated they weren’t a telecommunications company, and Chevron deference meant the courts were supposed to simply accept that shit—which they did.
His argument was that the courts didn’t agree with the FCC, but the Chevron precedent suggested they had to go with the FCC’s interpretation whether they liked it or not.
Clement seemed to be arguing that this is an opportunity for the court to say, “You know what, we have the power, not these fucking agencies. We’re not handing the power over entirely anymore, we’re taking it back.
His other underlying concern, is that these agencies are vast and varied. So their decisions create new conflicts and precedents, where one agency might decide one way, and another addressing the same exact ambiguity, might regulate in a polar opposite way.
This is in contrast to the courts, who have case law and precedent, which aims to make consistent, things like this.
He even went on to attack congress rather directly, saying that the minority are using Chevron deference to get the president, if they agree with them, to pass laws as regulations, where they know they don’t have the votes to pass themselves. That’s not a soft jab, that’s a straight bomb to the face.
It’s a clear argument that Chevron is leading to direct violations of the separation of powers doctrine our constitution lays out.
Justice Alito asked counsel Clement about what he thinks changed since Chevron was decided. Was it right then, but wrong now?
Associate Justice Samuel Alito
Counsel Clement first laid out that the courts seem to have embraced textualism more, now.
Textualism just means that the courts interpret the laws as written, not how they think congress may have intended.
He points out, that he thinks the courts were simply wrongly removed from the equation entirely, with Chevron.
If the regulation is based on the expertise of the agency, the courts could and should recognize as much, and let it stand. But the courts should not just assume that’s true and walk away before even examining it.
If the courts recognize that it’s not a regulation based on expertise, but instead, based on politics where the minority and the executive are bypassing congress, the courts should step in and put a stop to it.
Justice Kagan, not a fan of Clement’s position, asked, “we have over 70 SCOTUS cases that relied on Chevron, and over 17,000 lower court cases relied on it. You want us to blow all the shit to kingdom come? What the fuck is wrong with you? The courts will be inundated with new cases, dogs will be sleeping with cars, it’ll be total chaos!”
Clement was like, “I’m not suggesting you blow up anything. No need to revisit a bunch of old cases. I’m suggesting you have the power to interpret law. Not congress. So why the fuck would you entirely give that power to congress, in this context?”
He specifically even said:
I don’t think you actually want to invite, in all candor, that particular fox into your henhouse and tell you how to go about interpreting statutes or how to go about dealing with qualified immunity defenses.
It is rather interesting he’s trying to get the courts to take power back, and the left-leaning justices seem very unwilling to take it.
I know this is disrespectful or arrogant, and I feel bad even saying it, but I think this is a case of political ideology clouding judgement. These justices are toeing a line their political compatriots want them to, instead of thinking critically. But I will try to remain humble, and open to the idea that I’m wrong here.
Clement went on to say, “Listen, I’m not saying overturn a shit ton of cases that relied on Chevron. Again, all I’m saying, is the court shouldn’t remove itself entirely. If the agency can demonstrate to the court, it’s decision is based on expertise the courts don’t have, then the courts should certainly let that shit ride, and not decide it themselves.
But if the courts recognize it’s simple politics, and not expertise, tell them to go pound sand up their ass.
However, Chevron is saying that they shouldn’t even analyze this, and that’s the problem Clement has.
Next up for the government, Solicitor General Elizabeth Prelogar.
Solicitor General Elizabeth Barchas Prelogar
She started off by saying the opposition acknowledges that congress can grant authority to agencies, allowing the executive to fill in the gaps they may leave in their legislation for an expert the executive appoints, to fill.
If so, then what the fuck is this grand attack on Chevron? If congress can expressly delegate those powers, why can’t they implicitly delegate them?
She also pointed out stare decisis (latin for “Stand by what’s decided”). The courts generally don’t like to overrule themselves, because then the law is all over the fucking place. Ain’t nobody got time for that.
So she argues, the court could clarify or build upon Chevron, while maintaining the basic principle, as overruling it entirely violates stare decisis.
Justice Thomas started by asking about situations where the law is ambiguous, versus the law is just silent.
General Prolegar pointed out that there are several provisions in the act pertaining to the fishery that talk about how it would be monitored, and by whom. So she argues that the statute isn’t silent at all.
Associate Justice Clarence Thomas
Justice Neil “Golden Voice” Gorsuch was like, OK if you think this statute is clear, and we think it’s clear, isn’t that the kind of shit we interpret every day? Why should we defer that to someone else?
He then asked, “if we all, in this room, think it’s clear, but a lower court didn’t think it was, isn’t that a fucking problem?
Isn’t that evidence that interpreting the statute is almost always ambiguous? If experts on law like us, can come to two different interpretations, there has to be some ambiguousness.
If so, then this Chevron test itself, is too ambiguous? Certainly we’re not supposed to give up on interpreting every statue and related regulation and let agencies handle it? We’re the experts on statutes, not regulatory agencies.
So we should decide if it’s a statutory issue, or an issue of expertise. If it’s statutory, then we fucking decide it. The nerds can handle the other shit.”
He points out that the “ambiguity” trigger in Chevron is so vague, we can’t even decide if it applies to this case or not.
I understand if congress specifically gives the authority to the agency to answer a question in the statute. But you lost me at the idea we should just infer it if the language seems unclear to anyone. That’s crazy talk!”
Associate Justice Neil Gorsuch
Counsel Prelogar pointed out that when creating an agency, congress wholly understands its limits of expertise. It purposefully leaves gaps in these laws for these agencies to fill in with regulation, and they have the authority to do so. All Chevron does is recognize that, and honor what congress intended.
Justice Barrett then asked about the previous Brand X ruling, that used the Chevron deference as it’s underpinning. She asked, “Brand X basically said, even if we, the court, have an opinion about the law, and we think it’s better than the regulatory agency’s interpretation, if the court deems the agency’s interpretation is fair or reasonable, it has to go with the interpretation, and ignore what the court thinks is best. But you’re saying we don’t do that, we just use our best judgement based on all the interpretations?”
General Prelogar said she didn’t read Brand X that way. She felt that if the court could see congress did or didn’t delegate the authority to the agency in Step 1 (the statute), then there was no need to go to step 2 (the regulation) and decide if the regulation is fair or reasonable—the court should defer to the agency.
This talk of steps should probably be explained. Chevron was a two-step process.
Step one was to determine if the law was ambiguous or not. If it wasn’t, then Chevron doesn’t apply, and the courts should interpret the statue or regulation, how they see fit.
If the courts believe the statute is ambiguous, then they go to step 2, and determine if the regulation the agency wrote to clear up that ambiguity is reasonable. If it is, then the courts should defer to it, as opposed to coming up with their own interpretation.
Justice Barrett seemed concerned that there’s a facet of step 1 that says they don’t even go to step 2. Barrett’s argument is that the courts should at least go to step 2 and consider the regulation. Step 2 could have some pretty repugnant shit that the courts would never allow.
Associate Justice Amy Coney Barrett
Justice Roberts asked if Chevron applies to constitutional questions.
Sometimes the court just clears up ambiguously written law, but sometimes it weighs whether the law is even constitutional.
So if step 1 (the statute) is ambiguous, and step 2 (the regulation) is unconstitutional in the court’s eyes, Chevron seems to suggest the courts should still allow the unconstitutional regulation, because they were not supposed to even go to step 2.
But General Prelogar, conceding Justice Robert’s point, suggested Chevron was not meant to block constitutional questions, only to clarify statutory questions.
Counsel Prelogar suggested that they’re interpreting Chevron wrong. It isn’t that the courts don’t even get to step 2. Her opinion is that they always would.
They look at step one and simply determine if the statute is ambiguous. If it isn’t ambiguous, they would ensure that step 2 jibes with step 1, or is constitutional.
If the statute is ambiguous, then they look at step 2, and see if the regulation is reasonable, and presumably constitutional. If it is, then they roll with that shit, instead of trying to interpret it better themselves. If it isn’t reasonable, then they do what they do best—strike that shit and rewrite it.
Either way, they always get to step 2.
After this, Justice Gorsuch and General Prelogar went on a lengthy back and forth about the idea that when considering a statute, congress goes through a lengthy process, where voters can petition their congressperson, and give their opinions before a statute is passed.
Associate Justice Neil Gorsuch
But regulatory agencies just pass regulations without telling anyone, necessarily.
Justice Gorsuch is concerned that the people’s government isn’t consulting the people when regulations are passed, and Chevron cuts the people out even more.
He even reiterated the idea that every person gets their day in court, if they want it. But this deference rule sort of says, well, if the law is ambiguous, and the regulation says they don’t, then fuck ’em. They can’t get their day in court.
Justice Sotomayor went back and asked about Clement’s previous argument in regards to the 20% cost of the catch estimates, which are too unworkable, and would often leave these fisherman with no profit margin left.
General Prelogar responded that this 20% number they came up with, were from a land of pure imagination.
This was an estimate provided that it said it could go as high as 20%. In the real world where we live, it falls in the 2-3% like the others he mentioned.
She went on to say, that even if it were higher, the agency provided for waivers and exemptions, if it was truly an unworkable burden for them. So in her opinion, Clement was talking shit.
Supreme Court of the United States
I think we’ve talked about the Major Questions Doctrine, before in the aforementioned OSHA case. But it’s worth reiterating that the current court feels that major questions are to be answered by congress, not regulator agencies, working as minions for the president.
Again, citing the OSHA case, it was effectively saying the entire working population should get vaccinated, or wear a mask when at work. That’s a major question, as it affects about 96% of the population. The right-wing segment of the court things such questions should be handled by congress, who are answerable to the people if they vote that way, and should not be sneakily pushed through an agency at the president’s behest instead.
General Prelogar knows this court’s majority agrees with this doctrine, so she made an effort to suggest that Chevron is workable within the major questions doctrine, because again, she’s suggesting that Chevron allows for the courts to analyze both steps, the statutory and regulatory, and decide if there’s some sort of over-reach, or other political bullshit going on, and rule accordingly.
Convincing them of that, is probably her only chance of winning this shit.
Counsel Clement did get an opportunity for rebuttal at the end.
He made the point that because of Chevron, members of congress who want to achieve something controversial, which they know would not pass the house and senate, would purposefully make a law ambiguous. Then, they would lean on a sympathetic president to push the agency under their control, to write a clarifying regulation the way that they wanted to pass the law, but couldn’t.
So he feels that overturning Chevron is necessary to shut this shit down.
And overturn it, they did.
2024 Supreme Court of the United States
In a 6:3 partisan split, where Justices Sotomayor, Kagan, and Jackson dissented, SCOTUS sided with Loper Bright, and while doing so, rebuked the Chevron deference.
The majority’s opinion is pragmatic, in my opinion. We’ve covered the political arguments over this case fairly well, and the courts reiterated them.
They agree, that expert opinions, on areas where expertise is warranted, should be considered, and accepted, if they are reasonable interpretations, they don’t violate any constitutional principles, and it seems fair that the statute used to create that agency, give them the power to make such a regulation.
So the left’s argument that the courts are looking to overrule experts in areas that they don’t have expertise, is hyperbolic nonsense, usually reserved for assholes in congress, not the Supreme Court.
So as an example, if congress writes a law asking the EPA to regulate the air in such a way as to ensure healthy air to breathe for humans, and then the EPA writes a regulation saying the air should have no more than 100 parts per million (PPM) of some harmful pollutant, because studies have shown, that more than 100PPM is when it becomes statistically significant to human health, the courts will and should recognize the court is out of it’s bailiwick, and not try to answer that question better.
If the regulation in question however, seems more about statutory interpretation, then the courts can and should consider how they’d interpret it, and if they feel their interpretation is better, they should have no qualms smacking down the regulatory agency.
For example, if congress passes a statute asking the EPA to regulate the air quality, and the EPAs response is to enact some political scheme that bans fossil fuels, that may be a problem. The courts should consider that as a major question, and decide whether that’s an agency’s expertise, or a political question for congress to decide with the consent of the people.
Because, it’s possible fossil fuels could have a place in the market, along side cleaner energy, and banning them completely isn’t really science at all, but a political ideology being put into play.
Hear oral arguments, read about the case, and the opinion here at Oyez.com
Here is another great video from Yale law professor Jed Rubenfeld, explaining it more professionally, than yours truly.
While professor Rubenfeld seems to take an unbiased approach to these issues, here is another, less than unbiased interpretation from Legal Eagle.
Some of you may remember, we recently had a president named Donald J. Trump. It was in the news, actually.
Donald Trump
Anyway, after four years in office, he was such a good president, that despite being an incumbent, and having the advantages that come with that, he lost to a senile old man who loses his train of thought like I lose my car keys.
It’s worth noting that he won the election when he wasn’t president, against Satan herself, when he had no power at all. But then, when he was in power, he lost to Captain Dementia, and somehow claimed the election was rigged. Again, he was in fucking power when he lost. If it was to be rigged, he was the one to rig it! It’s like he’s never even heard of Vladimir Putin.
Anyway, after he clearly lost, he decided to go on a spree of videos and Twitter posts claiming the election was stolen—stirring up a shitstorm among his loyal voters.
A few of these fine upstanding assholes even decided to invade congress and take an unguided tour outside of visiting hours. It didn’t go well.
After the peaceful protests became less than peaceful, to his credit, Trump did tell his merry band of miscreants to go home, lending some level of credence to the idea that he wasn’t actually asking for violence. So I’ll give him the benefit of the doubt, that he was seeking some sort of non-violent resolution to his loss that could still keep him in power.
It didn’t work. We got the Inappropriate-Hair-Sniffer-In-Chief.
Trump also tried to fire his Attorney General William Barr if he didn’t try to overturn the election. He tried to get Pence to not certify the election. He called states and tried to get them to submit false electoral votes in his favor. He was a fucking trainwreck, ya’ll.
Anyway, because some believe Trump broke a few fucking laws here, he’s been charged with as much. However, Trump claims that as president, which he was when some of these issues happened, he’s immune from prosecution for anything he does in office.
As you can imagine, prosecutors would love to have at the orange tyrant. But many have put those trials on hold until SCOTUS determine what immunity he is entitled to, if any.
Because this case is a landmark of landmark cases, this question was fast-tracked by SCOTUS. They presumably understood this may need resolved quickly since there’s another election coming up.
Now…on to the arguments!
Opening for Trump, counsel D. John Sauer, with the sultry voice of a diseased chicken (Listen to it and tell me I’m wrong), started with this rather ambitious statement. “Without presidential immunity from criminal prosecution, there can be no presidency as we know it.”
Counsel D. John Sauer
He went on to point out that no president has ever been tried for criminal acts. Not sure where he learned debating, but that could just mean, no president committed a serious crime while in office, that was deemed worth prosecuting.
Also, this statement has a little asterisk next to it, as Nixon almost assuredly would have been, had he not resigned. Plus, Reagan may have been for the Iran Contra-Affair, but it became obvious after he left office, his senility was so great, he could not fairly assist in his own defense.
Trump’s reason for this, is somehow the same as cops use for qualified immunity. “If you do this, no one will want to be president, because when it comes time to react to a tough situation in the moment, they’ll be too afraid to pull the trigger.”
This of course, is overcome by the fact that no previous presidents had these qualms.
Saddam Hussein
He went on to point out that Bush could have been tried for lying about WMDs in Iraq.
Pretty creative, but acts of war are bestowed upon the president, if they can fairly claim they’re defending the country or its allies. Rioting within the US to overturn an election, even if you’re delusional enough to think you won, isn’t a power bestowed upon the president by our Constitution. I don’t think this argument goes very far.
Associate Justice Clarence Thomas
He wrapped up his opening argument that “prosecuting presidents for official acts” is the supposed crime.
I’m not sure what the president is accused of is somehow an official act, but hey. Go for it, bud.
Justice Thomas, who arguably seems to favor Trump, was first to ask questions. He was like, “Where the fuck does it say the president can do this shit while in office?”
The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.
The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.
No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.
In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.
The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.
Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:– I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.
Section 2
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
Section 3
He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.
Section 4
The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
Sauer also claimed that somehow the Marbury v. Madison‘s precedent suggests that the president is immune, since then Chief Justice John Marshall basically allowed the new president Thomas Jefferson (Marshall’s cousin, whom he did not get along with) to withhold a judicial appointment of Justice Marbury, legally commissioned by the previous president John Adams, who Jefferson also disliked.
I guess he thinks Marshall said in this opinion, the president can do whatever they fuck they want in office, as long as it’s official. I don’t recall that part.
Justice Thomas, seeming somewhat skeptical, asked, “If we accept your argument that official acts are where the immunity lies, how the fuck do we determine what an official act is?”
Counsel Sauer pointed to an older case, Nixon v. Fitzgerald, where the court ruled that immunity applied to the “outer perimeter” of his duties. Which basically meant, anything related to his job—a much broader set of duties than something more narrow, like the president’s duties enumerated in the constitution.
Chief Justice Roberts was like, “What if the president appoints someone to an official position after that person or someone else bribed him to get the fucking job. That’s an official act, and it’s a fucking crime. We’re just supposed to sit back and take that shit?”
Chief Justice John Roberts
But as always, it’s the chief, and he did it with a smile.
Counsels response was that “bribery is not an official act.”
Counsel seemingly leaving the door open to the idea that the president is prosecutable for bribery, because that’s a separate act from the appointment.
Counsel didn’t say this, but I assume it plays out that the president would be impeached and prosecuted for accepting a bribe, and the appointee would then be impeached because they were nominated as the result of a bribe.
So while the crux of Trump’s argument is that he has full immunity, counsel Sauer seems to be more tempered in his argument, that it’s just full immunity for official acts. He is likely trying to ensure that he’s not making some overarching case that the president is above the law, which is certainly pretty smart if he’s to win this shit.
Chief Roberts followed up with asking, “bribery isn’t official, but the appointment is. So what do we do with that shit?”
Sauer suggested they defer to the courts to parse out what’s official and what’s not, then prosecute from there, any unofficial acts that are crimes.
Justice Sotomayor, launched a technique that’s rather common in science, and with SCOTUS—think in extremes to test the position.
Official Portrait of United States Supreme Court Justice Sonia Sotomayor
Click for Biography
She asked, “can the president have the military assassinate their electoral rival if they think the person is somehow a threat or corrupt?”
This mother fucker actually responded, “it depends on the hypothetical, but that could well be an official act.”
Are you fucking kidding right now? That’s his response? He could have done so much better on this. I’m guessing he was leaving an opportunity open for a situation where it could be shown the rival was a traitor and had committed some heinous act against the United States, but otherwise no, that’d be murder. He fumbled this one, in my opinion.
Justice Sotomayor points out that in counsel’s examples for Bush and Obama, they did what they did to protect the country, not for personal gain. Trump however, is trying to stay in office when everyone else is telling him he lost, which is for personal gain.
I agree with her, but this is the easiest question for him to answer so far, because he could just say Trump felt he was protecting America by trying to prevent Biden from taking over as president, when he may have truly believed Biden lost.
She pointed out that the framers actually discussed granting immunity to the president, but they never actually put it in the constitution, suggesting that he/she does not have that power. It’s actually a pretty great point from her.
Justice Kentanji Brown Jackson was next to chime in. She first established what counsel Sauer wants, which is absolute immunity. He agreed.
Justice Ketanji Brown Jackson
She then clarified, that in the past, when they grant absolute immunity, it’s in the context of official acts. He also agreed.
So then she asked, so the real question here, if we accept your stupid fucking argument is whether these things he’s being prosecuted for are official acts, right?
He responded that it was an important determination…to which Justice Jackson was like, “mother fucker, it’s THE determination and you know it!”
She then asked, if the president is using the office for personal gain, then by definition, that’s not for the benefit of the fucking United States, is it? Therefore, not an official act. Therefore, you’re talking shit. Therefore, checkmate, bitch.
Counsel Sauer, again was tongue-tied. He tacitly agreed, but then pointed out, that in the Nixon v Fitzgerald case, they didn’t want to allow the courts to assess the president’s state of mind. The business of proving someone’s motives is fraught with issues.
They just wanted to judge the acts on their merits. So if a plausible case could be made that a president does something for the betterment of the country, then BOOM, immunity—otherwise, no immunity. Prosecutors don’t have the need or leeway to prove an additional mens rea element.
She then went on to argue that every fucking president before Trump operated under the premise that they could be prosecuted after they left office, which is laid out in the impeachment process. So what he’s asking for is not the status quo, but for them to somehow infer some new power, granted to the president, that wasn’t accepted before.
Counsel Sauer’s retort was about how Benjamin Franklin once pointed out that “History furnishes one example only of a first Magistrate being formally brought to public Justice. And the people cried out against this.” He was referring to Charles I who was removed and executed.
Colorful argument. Stupid, since again, this didn’t make it into the constitution, but colorful.
Justice Neil “Golden Voice” Gorsuch was next to jump in. He was like, “We all agree, once the prez leaves office, they can be charged with a crime for their personal conduct (not official), yeah?”
Associate Justice Neil Gorsuch
Counsel Sauer agreed.
He asked about a previous circuit course case called Blassingame v. Trump, and the test they provided for separating official vs. private acts, but didn’t elaborate, presumably making sure counsel Sauer was also aware of this case and understood the test.
Counsel Sauer seemed to side with the opinion of Justice Katsas from that case.
My own cursory and amateur pass at the opinion of this case from Katsas is that they argued that if the president were at a campaign rally, or some other shit that was clearly not the work of the people, immunity isn’t attached. But that if they were in office, or doing the work of the people, and during that time, just happened to say some political shit to help their election, such as jabs at their opponent during a state of the union address, then immunity would apply.
Justice Amy Coney Barrett began rattling off things Trump has been accused of, where he had private conversations with his lawyers and shit, asking if those things were private or official.
Associate Justice Amy Coney Barrett
Counsel agreed they were private, and attempted to distinguishing the things he felt his client did officially, which is meeting with the DOJ to determine who’ll be the acting attorney general, communicating with the public, and congress. I wonder if telling them they should “fight like hell” was deemed official by counsel Sauer, because that’s kinda why he’s here?
Sauer, addressing Justice Roberts, suggested that he felt many of the things in the indictment were official acts, and he agreed some may be private.
So he essentially wanted SCOTUS to parse that shit out, removing all official acts from the indictment, and only letting Trump be charged with things that were un-official acts. Presumably feeling the unofficial stuff, in their opinion, weren’t that serious, or were more easily defeated if they go back to court.
Justice Roberts, seeming perplexed by his arguments was like, “if appointing a justice is an official act, but bribing the president to appoint that justice isn’t, how the fuck do we prosecute the president for taking a bribe to appoint a justice? Giving someone money is perfectly legal. Appointing the justice is the official act, and perfectly legal. It’s giving someone money to appoint a justice that’s the fucking problem. If you have us remove the “appointing a justice” part, it’s just giving someone money, and that’s AOK. See the fucking problem here, dipshit?
His response was…well…incoherent to me. I’ll let you be the judge:
In this particular indictment, where we say virtually all the overt conduct is official, we don’t believe it would be able to go forward.
I mean, there could be a case where it would, but if you look at—even the government’s brief in this case divides up the indictment into things that, other than the electors allegations, don’t really—are—they haven’t disputed that they are official acts.
But what they do is say, well, we tie it all together by characterizing it as done, and these are the allegations that the Court just referred to, by an improper private aim or private end.
Again, that’s their words.
And that just runs loggerheads, you know, dead-set against this Court’s case law saying you don’t look at with immunity determinations the—the—the motive—improper motivation or purpose.
I’m not saying Sauer was drunk, but that response felt like someone should have requested a breathalyzer.
Justice Kagan, having none of this shit, was like…
Does it strike you as odd that your understanding of immunity goes way beyond what the Office of Legal Counsel has ever claimed for the former president?
Associate Justice Elena Kagan
He responded by saying that any time a congressional statute seemed to indict a president, they went out of their way to avoid that.
As usual, he didn’t answer the question, and Kagan wasn’t interested in letting that slide.
She then asked, what if the president sold nuclear secrets to enemies?
His answer was that he couldn’t just be tried. He’d have to be impeached, then tried in the senate, and only after a conviction there, could he be tried in criminal court.
I know it seems like I’m mentioning they asked him a bunch of hypotheticals, because they did. Like, there were hypotheticals falling out the court’s asshole.
She went on to ask, what if the president got the military to stage a coup. Clever what she did there, because it wasn’t the military, but that’s kinda the argument as to what he did, right?
He had the same response as before, but Kagan wasn’t done. She was like, but in this case, the president is out of office now, so impeaching him and convicting him in congress is off the table. So he just gets away with it?
I don’t think I’ve ever heard any counsel arguing before SCOTUS struggle to find his words and a coherent argument more than Sauer at this point.
To be fair, he may just be a fine attorney in an unenviable position. But again, Trump has a history of two things:
Firing good attorneys who give him good advice, but said advice just happens to be not what Trump wants to hear
Good attorneys firing Trump as a client because he’s often batshit crazy, from a legal perspective, and asks them to do dumb shit they don’t want to do, for sake of their reputation and law license.
Kagan, like a cat playing with a mouse, finally dropped the hammer. She was like, “the fucking framers didn’t put an immunity clause into the constitution. They weren’t fucking idiots—they certainly knew how to. They just didn’t. Why? Because they didn’t want assholes like your client to become unremovable tyrants. You fucking know this, yeah?”
Again, he attempted to argue the vesting clause above, somehow was understood to provide immunity. But as Trump himself is famous for saying…
His argument was again, that the path to prosecute the president is impeachment, not a trial in criminal court, which is why they created such a process.
Justice Gorsuch posed the question about Trump potentially pardoning himself. He pointed out that the court has thankfully never had to address such a question. Counsel Sauer agreed, and admitted he didn’t have an argument for that either.
Sauer then reiterated the idea that that the president will be afraid to do anything, if they know future congress could pass a law making their acts illegal, and then prosecute them accordingly.
I’m gonna add an editorial here—this argument is fucking nonsense. The president is aware of current laws, and therefore should know not to break them. If a future congress passes future laws to make an act criminal, those laws cannot be retroactive.
You can’t prosecute someone for a law that didn’t exist when they committed the act, because people can’t predict the future. So while this is seemingly a decent argument, it’s my opinion that this argument assumes everyone else is an idiot, and doesn’t understand what I just pointed out.
Trump Impeachment Vote
It’s also worth noting, his position that the impeachment process must be performed to convict a president is really just a way to say, as long as the president’s party controls one of two houses, he’s unlikely to ever be prosecuted, as opposed to a criminal court which would typically weed out such partisanship in the jury selection process.
Justice Barrett chimed in and asked, “Us nine assholes in a robe are also subject to the same impeachment rules as the president. No one has suggested the laws don’t apply to us, have they? Are we afforded that same luxury?”
He disagreed. He argued this only applies to the president, again citing the framers and the constitution without offering an ounce of language to support this argument.
Justice Barrett then hit him with the ole, “What if the crime wasn’t discovered until after they leave office, removing the impeachment process from the equation? They just skip Jail, hit Go, and collect $200?”
His response was that the framers just assumed that risk.
It’s my observation, he assumes a lot with very little evidence.
Justice Barrett also hit him with, “You say the president is exempt from these criminal statutes, except for a couple. So how is he to be convicted after the impeachment process, if he’s exempted as you argue?”
Associate Justice Amy Coney Barrett
She went on to ask, “Giving the example of the president arranging a coup, even if the president were impeached and convicted in the senate, he still couldn’t be convicted in criminal court, unless congress specifically mentioned the president in the law—that somehow he’s presumed exempt.”
Counsel agreed. Let me say that again…counsel AGREED. He didn’t excuse it away, he basically said, unless the congress specifically writes a law that says the president is a criminal if they do this thing, it’s assumed the president cannot be criminally prosecuted for any other crime.
Again, this is fucking crazy, y’all.
Justice Jackson asked, “We know the fucking president, as a matter of fact, has the best lawyers in the world at their disposal. So why the fuck, would the framers give that person immunity, when others do not get it. Seems kinda silly, yeah?”
Counsel Sauer was like, “You’re talking shit. The president must follow the law. Our argument is that you assholes in robes don’t hold them accountable in criminal court, congress does via impeachment.”
She was like, “Maybe I spoke French and you didn’t understand. So let me repeat the question, dipshit. Others, like us, other appointees, and elected officials, don’t have the legal protections the president does. Why? Why can we go to jail, but the president alone is only prosecutable in congress?”
Counsel Sauer responded by citing Nixon v. Fitzgerald again, where it was determined the president can’t be sued. But, that’s fucking civil court—not criminal.
Justice Jackson was like, “Dude, we ruled that way, because we know every Tom, Dick, and Harry would sue the president if they could, and he’d spend his whole life in civil court. But criminal convictions are done by the government, and therefore, that risk isn’t nearly the same. Are you kidding me with this shit?”
Associate Justice Ketanji Brown Jackson
His argument was that the president is held liable by the people who choose not to reelect him (which is ironic), or the congress which can impeach and convict him.
Honestly, there’s no way Sauer needed over an hour to argue. He basically had three songs he sang over and over again. He could have wrapped in ten minutes.
Justice Brown, with her own editorial was like, “Can you imagine someone being elected president, knowing that they’ll be the most powerful person in the world, and then on top of that shit, you tell them they’re immune from any criminal prosecution? That sounds like a recipe for tyranicism. So what disincentivizes the president from becoming such a tyrant in your argument?”
She went on to argue, “You’re asking us to take criminal prosecution off the table, and therefore creating incentives for all future presidents to be career criminals.”
Justice Jackson, then wrapped with, “If congress decides a future action should be criminal, why the fuck do they have to specify it’s criminal if the president does it, too? Do you really expect us to buy that shit? That’s crazy talk.”
And mercifully with that, counsel Sauer’s time in the hotseat was over.
For the United States, counsel Michael Dreeben.
Michael Dreeben
He basically opened with, “My friend on the other side is a fucking idiot. The constitution doesn’t grant immunity for the president anywhere in the text.
If we’re to believe this idiot, the president could ass rape Mitch McConnell on the White House lawn, then shoot him for not lubing up first, and basically not worry about it.
Our founders knew too well about the abuses of a tyrant. No fucking way they give that power to a president.”
Justice Thomas, as usual, was the first with questions. He asked, “Are you saying there’s no presidential immunity whatsoever? Not even for official acts?”
Justice Thomas referred to Operation Mongoose, which was a Kennedy plan to kill Castro in Cuba. “Why wasn’t that prosecuted?” he asked.
He responded that the reason there were no prosecutions, was because there were no crimes.
Woah! I’m kinda on his side, but that seems like a statement that requires balls the size of Texas. But nonetheless, he has my attention.
He points out that in the example Justice Thomas gave, that doesn’t mean that the president can’t commit murder, but that the constitution gives the president the power to command the military to eliminate threats to the United States, in this case, Fidel Castro, but in Obama’s case, generic terrorists.
Justice Alito jumped into the fray, asking counsel Dreeben, why is your opponent’s argument that the president must go through the impeachment process before they can be criminally prosecuted a bad system?
Associate Justice Samuel Alito
Counsel Dreeben was like, “I don’t know if you noticed this, but congress is a bunch of whiny ass political hacks. If the president’s party is in power, then he/she will NEVER get impeached. Or do you not recall Clinton and Trump’s impeachments being thwarted by their respective parties.
Criminal acts shouldn’t be subjected to the political whims of the political parties in charge at the time, it should be up to the criminal courts.
You’re a fucking judge, why would you not see your people are better equipped, and more fair, at handling such things, than those contemptuous zealots in congress? Give me a fucking break, with this question.”
Justices Kavanaugh, Alito, and Gorsuch all seemed to want to understand that with the checks and balances clearly enshrined into our constitution, are there presidential acts that congress may not criminalize.
Meaning, is the president protected from a congress, who simply doesn’t like what the president is doing, all of a sudden, making presidential acts a crime, so they can remove a sitting president they just don’t like?
Counsel Dreeben was like, “No dawg. If the constitution bestows powers onto the executive, congress can’t just criminalize them. It would have to amend the constitution. Surely you know this, yo?”
With that agreement, then Gorsuch was like, “OK, we agree that there are some things that are off limits for congress to do to the president, now we simply have to draw a line as to what congress may or may not do, to criminalize actions a president might take.”
Associate Justice Neil Gorsuch
An example Justice Gorsuch gave was, what if the president arranged a peaceful sit-in at Congress—protesting some legislation they seemed poised to pass—and this sit-in preventing congress from moving forward with their legislative duties, could congress criminalize that?
This is clearly a reference to what happened when President Trump organized rallies to protest Biden’s win, although it eventually was not so peaceful.
Counsel Dreeben’s response was basically, “If it’s not outlined as a power the president is constitutionally enshrined with, it’s complicated.”
After covering powers that he’s granted by the constitution, then past areas where congress may specifically prevent the president from doing something, the answer becomes, is the president subject to criminal law in general. Gorsuch, seemed to agree, that was the heart of the question, which counsel believes they are.
Justice Sotomayor asked:
If he’s not covered by the criminal law, he can’t be impeached for it.
She elaborated on her question by asking if the president is subject to the criminal code, except when somehow a criminal code would criminalize the president’s actions that the constitution grants them.
Dreeben agreed.
She then asked, “is it not mandated that the president faithfully execute the laws, and therefore violating them would be a direct violation of their duty to violate any code they swore to protect?
Dreeben was like, “You’re speaking my love language, mama!”
I think the heart of Sotomayor’s question is that if the president has immunity, then how can they be impeached for “high crimes and misdemeanors” if they’re immune from them? Seems like some weird circular logic to me.
Official Portrait of United States Supreme Court Justice Sonia Sotomayor
Click for Biography
Justice Alito had heard enough of this shit, though. He was like, “The fucking president has to make a lot of tough decision to protect the United States from harm. Isn’t it fair to say on occasion, it might mean breaking a few stupid fucking laws? Like, the president makes one fucking mistake, trying to keep us safe, and you’re going to land their ass in jail?”
Counsel Dreeben, having enough of Alito’s shit, was like, “Mistakes won’t land a fucking president in prison, you ignorant fuck.”
He also pointed out, that the president has no role in certifying their own election. The VP does. So anything a president does to interfere with the election, is not a constitutionally protected action—it’s not in his fucking job description.
Justice Alito, apparently trying to figure out why Trump is the first idiot to be indicted for a crime while he was president asked, “What about Roosevelt throwing Japanese Americans in concentration camps? Could that be something the president could be charged for—violating American’s rights?”
Counsel Dreeben was like, “By today’s standards, hell yes.”
He then went on to add some nuance, part of which was that White House counsel at the time would have fucking told him he was allowed to do that under presidential powers of war, which gives the president some level of innocence.
So Alito asked, “you’re telling me, if his lawyers are like, ‘you’re good dog’, that this ineffective (ignorant) assistance of counsel would exonerate the president from wrongdoing?
Associate Justice Samuel Alito
Dreeben agreed that he felt it would. Presumably the president is not a lawyer. Certainly not in Trump’s case. So if the AG and other top government lawyers give him legal advice, and he follows it, that seems unfair to come after them later—they thought they were following the fucking law.
He brought up a legal principle he called entrapment by estoppel. This is not just about the president, it applies to anyone. If a government official, in this case, Trump’s lawyer, tells you that you may do something, and you then do it, they can’t come later and arrest you for it. That’s fucked up!
Imagine a cop says, “sure, smoke that joint, your fine.” So you do. Then he nabs you and charges you for smoking a joint. I think we can all understand why this is wrong.
So if the Attorney General tells the president, “Hey man, you’re within the law to do this,” it would be wrong for the same reason, for someone to then arrest the president for doing it.
Justice Alito then asked, “but what if the president just picks some random fucking idiot as their AG, and this person is literally hired to be a “yes man?”
But again, Dreeben had an answer for that. “He’s like, again with stupid questions. The president nominates, but the congress approves this person. So such an idiot should never make it to being AG.
Justice Alito then asked the question Gorsuch asked of Sauer earlier, “Can the president pardon him/herself?”
Biden Pardoning President Trump
Counsel Dreeben responded, “we’ve never chimed in on that, and the constitution doesn’t answer it. Probably because we never had any half-wit president consider it before now. So he also had no argument on this one. Plus, to be fair, Trump never said he’d do it, and even tacitly rejected the idea.
Alito then hit Dreeben, who works for the DOJ, with the left hook. “Don’t we need to know your position, as a representative for the DOJ on this? I mean, if you have no position against it, can’t the president just pardon themselves for every imaginable crime on the way out the door?”
It’s worth noting here, the presidential pardon power is for federal crimes only. Not state and local ones. If someone is charged by a state, then the governor of that state is who may pardon them.
Counsel Dreeben was like, “I would assume that the bedrock principle in our laws, that no person shall be the judge in their own case, applies here, and therefore the president may not pardon themselves.”
Justice Kagan asked, “What should we do here? Is it within our power to decide if the president may pardon themselves, if they may commit crimes in office, etc.?” Are we not potentially stepping on the power of congress and the president”
Associate Justice Elena Kagan
Counsel Dreeben agreed that there was plenty of precedent that the courts could indeed draw these distinctions, as they do with any other constitutional questions.
In response to Justice Gorsuch, asking about the distinction in this case, between office seeker, which isn’t protected, and office holder, which is, counsel Dreeben stated that when Trump is on the phone saying he needed them to find 11,000 votes, that’s quite obviously an office seeker, and therefore not protected.
Justice Kavanaugh, almost assuredly referring to New York AG Alvin Bragg, who campaigned on the idea he’d get Trump on criminal charges, asked about the corruption concern of opposing parties picking someone they don’t like, and just looking for a crime to hang on them. This is opposed to what should happen, where there’s evidence of a crime first, then an investigation, which potentially then leads to the person in question.
Counsel Dreeben pointed out that during Iran-Contra, the judge looking at the issue, reviewed the evidence and dismissed the criminal complaint. His suggestion being, that the justice system does have some effective checks to ensure an ambitious prosecutor can’t just go on a political witch hunt, and succeed.
Justice Kavanaugh gave another hypothetical, that what if President Johnson had purposefully lied to the American people about Vietnam, in order to achieve political goals there. Could he have been prosecuted for that?
Counsel Dreeben’s response was a healthy respect for the first amendment, that we don’t prosecute speech. We prosecute illegal actions.
Kavanaugh then asked, “What about Johnson pardoning Nixon?”
Dreebon’s response, “That’s a presidential action granted by the constitution. Soooo…”
Dreeben responded that the DOJ reviewed this and felt it was not an unlawful killing and chose not to prosecute. Suggesting that the system worked to protect the president when he was acting to protect the country.
Truthfully, seems like kind of a dodged question. He didn’t really explain why Obama was deemed to be within his right as president to deny a citizen due process before killing them. But I think he ultimately was relying on the “entrapment by estoppel” argument mentioned earlier, pointing out that White House advisors gave Obama the go-ahead to nuke that terrorist cunt.
In a long series of question, Justice Jackson asked if Dreeben felt there were any acts Trump is accused of, they he feels falls under official acts, and therefore are immune from prosecution.
Dreeben was like, “No. We agree official acts aren’t prosecutable. So we wouldn’t have sought prosecution if we thought for a minute, they were official acts. It’s our position, he did this entirely for personal gain, to take control of an election his dumb ass clearly lost, and he damn well knows it.”
Associate Justice Ketanji Brown Jackson
Without a question in sight, Justice Jackson went on to make a political statement that she thinks Trump’s argument that allowing these prosecutions to go through, would chill all presidents in the future, when they’re faced with a tough action, while valid, is no less valid than the concerns of a president who’s entirely immune from prosecution, going on a criminal bender like they’re both Thelma and Louise.
This case has made my head spin. It’s a pretty crazy thing.
While I always listen to the oral arguments, I rarely read the full opinion of the court. That shit is long, full of legal mumbo-jumbo (mostly citations, actually), and boring. A synopsis is usually good enough for me to opine. But for this one, I actually did read that shit.
Here it is (Click the link), as delivered by the chief himself, Justice Roberts.
Supreme Court of the United States Chief Justice John Roberts
There is a LOT of fucking nuance, and if people have strong opinions about this case, they should shut the fuck up until they’ve actually read the opinion.
Because I think it largely stands on it’s own. Here’s the last few paragraphs of the opinion, if you don’t want to read the whole thing. I think it’s a pretty good summary. I’ve removed the citations below in all the actual quotes to make it easier to read.
This case poses a question of lasting significance: When may a former President be prosecuted for official acts taken during his Presidency?
Our Nation has never before needed an answer. But in addressing that question today, unlike the political branches and the public at large, we cannot afford to fixate exclusively, or even primarily, on present exigencies. In a case like this one, focusing on “transient results” may have profound consequences for the separation of powers and for the future of our Republic.
Our perspective must be more farsighted, for “[t]he peculiar circumstances of the moment may render a measure more or less wise, but cannot render it more or less constitutional.”
Our first President had such a perspective. In his Farewell Address, George Washington reminded the Nation that “a Government of as much vigour as is consistent with the perfect security of Liberty is indispensable.” A government “too feeble to withstand the enterprises of faction,” he warned, could lead to the “frightful despotism” of “alternate domination of one faction over another, sharpened by the spirit of revenge.” And the way to avoid that cycle, he explained, was to ensure that government powers remained “properly distributed and adjusted.”
It is these enduring principles that guide our decision in this case. The President enjoys no immunity for his unofficial acts, and not everything the President does is official. The President is not above the law. But Congress may not criminalize the President’s conduct in carrying out the responsibilities of the Executive Branch under the Constitution. And the system of separated powers designed by the Framers has always demanded an energetic, independent Executive. The President therefore may not be prosecuted for exercising his core constitutional powers, and he is entitled, at a minimum, to a presumptive immunity from prosecution for all his official acts. That immunity applies equally to all occupants of the Oval Office, regardless of politics, policy, or party.
The judgment of the Court of Appeals for the D. C. Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Anyway, here’s my analysis of the whole opinion. I know, this is new for me, but let’s give it a whirl.
*takes deep breath in*
Trump largely won.
SCOTUS separated actions by a president into four categories, and then outlined what actions, if any could be taken against the president related to them:
Powers or duties enumerated by the constitution – Absolute immunity
Powers or duties granted by congress – Presumptive immunity
Powers or duties assumed by the people – Presumptive immunity
Unofficial acts (everything else) – No immunity
First, constitutional powers: the basic principle is that powers the president is granted by the constitution are the supreme law of the land. Don’t like it? Amend the fucking constitution.
The president has the discretion on how to achieve these goals, and can’t be prosecuted for doing them, even if some law says that act is illegal. Why? Because laws don’t have more power than the constitution, they have less.
Some on social media, and even the dissent, are showing some level of hyperbole by saying Trump could have ordered the military to kill Biden while in office, to eliminate the threat of losing the election, and that would be OK.
In my humble opinion, that is not what the opinion says. Also, remember when Justice Roberts asked Trump’s counsel Sauer about bribing the president to get an appointment and his response was, “a bribe isn’t an official act?”
Clearly, even Trump’s attorney understood that there is a distinction between something criminal and something official, and that one can lead to the other, but it doesn’t mean they’re entirely enjoined as an official act.
The majority stated that the constitution lays out what the president’s duties are, and if the president does them how they see fit, the president is “absolutely” immune from congress or the courts trying to remove that power from them, or prosecute them from doing them. It’s a separation-of-powers joint. Absolute just means, it can never ever happen, and no takesy backsies.
2024 Supreme Court of the United States
Here’s the snippet from the opinion addressing this:
We conclude that under our constitutional structure of separated powers, the nature of Presidential power requires that a former President have some immunity from criminal prosecution for official acts during his tenure in office. At least with respect to the President’s exercise of his core constitutional powers, this immunity must be absolute.
For instance, the president has an enumerated power to pardon federal criminals. Congress cannot at some point decide that the person the president pardoned, somehow makes that pardon a crime. That power is absolute, and congress can’t fuck with it.
The gave the example of when Lincoln pardoned confederate soldiers. Congress at the time didn’t agree and tried to pass a law preventing the president from doing it. SCOTUS at the time struck that shit down, because of the reasons current SCOTUS is citing now—the president’s power to pardon is a constitutional one which congress cannot remove or modify by law—only a constitutional amendment can change that. Make sense?
Chris Goldstein receives pardon from President Biden for marijuana protests.
From there, we move on to congressional acts giving the president powers and duties.
They ruled that the president has “presumptive” immunity on official acts, that are not enumerated in the constitution.
For instance, congress creates agencies, which then are headed by someone appointed by, and answering to, the president. So in this situation, congress is giving the president a new power.
The courts argue that congress should let the president carry out those duties however the president sees fit. If they don’t like it, amend the fucking law, which SCOTUS agrees is perfectly acceptable.
I believe their concern is with congress trying to retroactively prosecute a president they don’t like by changing laws so they can prosecute them. But they seemed to feel that they could cross that bridge when congress builds it. They just suggested that in the meantime, the president should be presumed to be immune, unless a good case can be made otherwise.
Here’s what they said on that:
As for his remaining official actions, he is also entitled to immunity. At the current stage of proceedings in this case, however, we need not and do not decide whether that immunity must be absolute, or instead whether a presumptive immunity is sufficient.
The last bit, the “outer perimeter” likely refers to acts that are assumed to be the job of the president, but aren’t specifically outlined in the constitution, or created by congress.
For instance, when Donald Trump spoke to supporters after he lost, and conveyed his lame-ass notion the election was stolen, it was arguably him conveying what he thought was necessary information for the people to know. At least, that’s what his rep Sauer said in oral arguments—talking to the people, and informing them, is part of the president’s job, even if there’s no text stating as much.
His detractors argued he was inciting people to riot, of course, which is part of why he’s here now.
I just think he was either delusional, in denial, or full of shit. I don’t think he actually wanted rioting. But I’m an optimist at heart.
Now that we’ve covered that shit, they went on to outline who can prosecute the president and when:
No matter the context, the President’s authority to act necessarily “stem[s] either from an act of Congress or from the Constitution itself.” In the latter case, the President’s authority is sometimes “conclusive and preclusive.” When the President exercises such authority, he may act even when the measures he takes are “incompatible with the expressed or implied will of Congress.” The exclusive constitutional authority of the President “disabl[es] the Congress from acting upon the subject.” And the courts have “no power to control [the President’s] discretion” when he acts pursuant to the powers invested exclusively in him by the Constitution.
If the President claims authority to act but in fact exercises mere “individual will” and “authority without law,” the courts may say so. In Youngstown, for instance, we held that President Truman exceeded his constitutional authority when he seized most of the Nation’s steel mills. But once it is determined that the President acted within the scope of his exclusive authority, his discretion in exercising such authority cannot be subject to further judicial examination.
They’ve clearly outlined the framework of how and when a president can be prosecuted. If the president commits acts that are bestowed upon them in the constitution, congress nor the courts can step on that without violating the separation of powers. So that’s a big old can of “No No.”
If the president exercises power granted to them by congress, or acts that are those understood to be something the president does, then congress may impeach him if they believe he has acted outside the laws they created.
And if it’s an unofficial act entirely, then off to court they may go.
The majority also left it open for the lower courts to decide if they’re official acts or not. If they deem they’re not official, the president could be in real fucking trouble. The “presumptive” thing just means that it is assumed the president is immune, unless they can make a good case why they’re not—establishing a baseline that starts from immunity.
The majority even pointed out that with Nixon and Jefferson, the courts established that a president can be subpoenaed, and compelled to turn over evidence, just as any other citizen may be forced to do. The only narrow exception was if those bits of evidence, if made public, could be a danger to the country or its people.
Former President Richard Nixon
They agreed with Sauers overarching theme, that if the president doesn’t enjoy this immunity structure they’ve laid out, then the president will be “chilled” as they put it, from acting in a way they think is best, if they’re worried about going to jail for it later.
I see their point, but frankly, that bit concerns me, as it seems to be an open door for criminal actors who may become president, to more easily commit crimes, if they can frame it as an official act, well enough.
The majority however, hammered it home by saying:
We must, however, “recognize the countervailing interests at stake.” Federal criminal laws seek to redress “a wrong to the public” as a whole, not just “a wrong to the individual.” There is therefore a compelling “public interest in fair and effective law enforcement.” The President, charged with enforcing federal criminal laws, is not above them.
They then elaborated on how they felt that should be restrained, while still describing when the door is open for the president to be prosecuted:
At a minimum, the President must therefore be immune from prosecution for an official act unless the Government can show that applying a criminal prohibition to that act would pose no “dangers of intrusion on the authority and functions of the Executive Branch.”
They next went on to explain why they kicked the question of what’s official and not official to the lower courts.
The White House
They basically said, none of these assholes in front of us bothered to argue what’s official and what’s not in their briefs for us to consider. Nor did the lower courts who decided these cases that led these assholes here. So we’re not doing that fucking work for you, you lazy pricks. We’re the court who settles your arguments. We don’t make the arguments ourselves.
They then went on to say that the president’s motives for official conduct are off limits. Meaning, if it’s official conduct, it’s official. You don’t get to drag his ass off to court because you don’t like the motives you assume he had while doing it. Not to mention proving someone’s mental state is pretty fucking hard.
They didn’t give an example, but I’ll fucking try. Why not?
The president appoints justices to the supreme court. Imagine a male president appoints some ultra-hot female Instagram influencer. Congress doesn’t get to come in and make that illegal because they believe he only did it to get laid. He has the power, and he did it how he saw fit. His motive can’t be the basis of it being criminal. Make sense? Good.
All of that speaks to their opinion on presidential powers and immunity in general.
They then went on to address the particular past president in front of them—one Donald J. Trump. So let’s dig in to his issues, and why he’s here.
They first addressed Trump threatening to fire his Attorney General William Barr if he didn’t help him overturn the election. Since the AG is answerable to the president, that is within the presidents constitutional authority, and therefore, he cannot be prosecuted for it, even if his motives were bullshit.
Second, we have Trump trying to get Pence to overturn the election by not certifying the vote.
While they acknowledge the president and VP are joined at the hip, and there are a lot of official acts between them, the VPs role is also as the president of the senate. Things the VP does in the senate, are not official acts of the president.
So, they argued presumptive immunity applies there. Meaning, let’s assume he was confiding and advising the VP as a president often does in his official role, but if the government can prove it was anything but that, and a criminal act, then by all means, the lower courts consider the merits of the arguments against him, and proceed accordingly.
Third, they covered a broad range of shit—his communications with state officials, private parties, and the public at large. Specifically, trying to get the states and republican electors, to cast fraudulent votes for Trump.
SCOTUS was like, “You didn’t provide nearly enough evidence in these cases for us to rule on it. We’re not going to provide an opinion facts not in evidence. So they basically punted that to the lower courts, and for the two sides to prepare their cases accordingly.
So no immunity granted or rescinded. Genuinely no opinion. This is for the lower courts to first decide, and we’ll see you later if it comes to that.
Fourth, his Tweets and speeches on January sixth.
Again, they punted this to the lower courts, because the evidence was incomplete. They had some Tweets but not all of them. They had portions of speeches but not the whole speech. The court refuses to opine without the full evidence.
Next, here’s where it gets a bit tricky. If the president uses his official acts to do something unofficial, his official acts cannot be part of the indictment for the unofficial act he’s being tried for.
They didn’t give examples for this, and I’m not sure I can come up with one either. But they point out, if we can use his official actions to secure a conviction on unofficial actions that are deemed criminal, then immunity means nothing.
They wrote on this:
If official conduct for which the President is immune may be scrutinized to help secure his conviction, even on charges that purport to be based only on his unofficial conduct, the “intended effect” of immunity would be defeated.
I get the argument. How can one be immune from something, but that thing still harms them? But still seems maybe a little too friendly to a potentially criminal act by a president, for my tastes.
They then moved on to Trumps much more broad immunity claims. That he can’t go to try for jack shit. That they could only prosecute him by impeachment and removal in the house and senate.
SCOTUS were having none of that shit. They were quoting the Federalist papers, previous precedents, and statements from the framers destroying that gobbledygook.
Trump also alleged that if the impeachment failed while in office, he couldn’t be tried in criminal court later. They shut that shit down as well.
They then turned to the government’s argument that he has no immunity at all. They were like, “You even fucking agreed with us at oral argument when we talked about constitutional powers being absolute. Are you fucking nuts?”
They then dropped a hammer on the idea that such prosecutions by the government against Trump, or future presidents, would be assumed to be on the merits, and not some political witch hunt. They said on this subject:
As for the Government’s assurances that prosecutors and grand juries will not permit political or baseless prosecutions from advancing in the first place, those assurances are available to every criminal defendant and fail to account for the President’s “unique position in the constitutional scheme.” We do not ordinarily decline to decide significant constitutional questions based on the Government’s promises of good faith. “We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.” Nor do we do so today.
The majority then went after the minority, who…well…let’s just say, may have played a little politics, and got a little (actually a lot) hyperbolic. It was ugly.
On the minority’s assertion that this is bullshit because there is no immunity clause, they wrote:
True, there is no “Presidential immunity clause” in the Constitution. But there is no “ ‘separation of powers clause’ ” either.
The majority frankly took the gloves off with this shit. I think Justices Sotomayor, Jackson, and Kagan probably need an IV drip after this.
Justices Sotomayor, Jackson, and Kagan (left to right)
After shitting all over some of their poorly substantiated arguments, they wrote next that:
The principal dissent’s most compelling piece of evidence consists of excerpted statements of Charles Pinckney from an 1800 Senate debate. See post, at 7. But those statements reflect only the now-discredited argument that any immunity not expressly mentioned in the Constitution must not exist. And Pinckney is not exactly a reliable authority on the separation of powers: He went on to state on the same day that “it was wrong to give the nomination of Judges to the President”—an opinion expressly rejected by the Framers. Given the Framers’ desire for an energetic and vigorous President, the principal dissent’s view that the Constitution they designed allows all his actions to be subject to prosecution—even the exercise of powers it grants exclusively to him—defies credulity.
By now, you’ve all heard that Sotomayor basically said that the court made the president above the law. Oh, boy. The majority was not pleased with that shit. They responded rather forcefully:
Coming up short on reasoning, the dissents repeatedly level variations of the accusation that the Court has rendered the President “above the law.” As before, that “rhetorically chilling” contention is “wholly unjustified.” Like everyone else, the President is subject to prosecution in his unofficial capacity. But unlike anyone else, the President is a branch of government, and the Constitution vests in him sweeping powers and duties. Accounting for that reality—and ensuring that the President may exercise those powers forcefully, as the Framers anticipated he would—does not place him above the law; it preserves the basic structure of the Constitution from which that law derives.
Justices Roberts, Thomas, Alito, Gorsuch, Kavanugh, and Barrett
They went on to accuse Sotomayor and Jackson of “fearmongering” (She kinda was). And they then explained why their argument is so problematic.
That without this framework, congress, courts, prosecutors, etc., can and will go after the president for every little fucking thing they can come up with, and the president will spend his whole fucking presidency dealing with that bullshit.
They’re not wrong. For a while now, we’ve endure several attempts to prosecute former presidents for things that are essentially political grandstanding and posturing, and not really trying to protect the people from real criminal acts.
Trump may well deserve a lot of this shit, but a lot of it was an absolute waste of time and taxpayer money. So I applaud this part of the opinion most. Congress is a fucking joke, and this should help reign in some of the attempts to use the legal system for political gain, when they simply don’t have the votes to win otherwise.
They then went on to complain about how the dissent wanted them to outline official acts and shit. The majority was however, like:
They have a point. The majority can’t come up with every possible scenario and create some sort of fucking legal vaccine. They have to let the parties make their arguments, lower courts can rule on them, and if they think they need to weigh in, they fucking will.
Justice Barrett, in her concurrence, felt that the majority didn’t need to kick everything to the lower courts. She agreed with the constitutional powers immunity, but on the non-constitutional issues, she felt they could have addressed them here.
Meaning, she didn’t think they needed to cover every fucking possible scenario, but they could have at least addressed the ones Trump tried to argue were official acts.
She also took issue with the ability to use official acts as evidence for prosecuting non-official acts. She wrote:
The Constitution does not require blinding juries to the circumstances surrounding conduct for which Presidents can be held liable. Consider a bribery prosecution—a charge not at issue here but one that provides a useful example. The federal bribery statute forbids any public official to seek or accept a thing of value “for or because of any official act.” The Constitution, of course, does not authorize a President to seek or accept bribes, so the Government may prosecute him if he does so. Yet excluding from trial any mention of the official act connected to the bribe would hamstring the prosecution. To make sense of charges alleging a quid pro quo, the jury must be allowed to hear about both the quid and the quo, even if the quo, standing alone, could not be a basis for the President’s criminal liability.
Associate Justice Amy Coney Barrett
As usual, she makes a pretty valid point. Barrett is no idiot.
So, despite what the minority, and every left-wing pundit says, it wasn’t that they made him above the law. They specifically said their opinion was not that.
What they did do, is lay the framework for when the president can be prosecuted and how, while also ensuring congress nor the courts, take presidential power from the executive and give it to themselves.
*exhales*
Hear oral arguments or read about the case, and the final opinions here at Oyez.
As an added bonus, watch this video from Yale Law Professor Jed Rubenfeld, from his “Straight Down the Middle” series. He provides a pretty great and fair analysis.
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™ 