[U] Trumpian Tariffs: Tossed -- 6-3! Woot! Gorsuch's Concurrence Shows How Unhinged The Hard Right (Alito / Thomas) Have Become...

I will (this afternoon) read the opinions to find the suggestions about how the federal tax returns might best be used to refund money to all who paid tariffs. The Supreme Court agreed with the challengers that IEEPA did not give Trump the power to impose the tariffs. “Based on two words separated by 16 others in. . . 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. . .” Chief Justice John Roberts wrote. “Those words,” he intoned, “cannot bear such weight”. “The IEEPA contains no reference to tariffs or duties”. . . and, “until now no President has read IEEPA to confer such power”.

So more to come -- but only Alito, Thomas and Kavanaugh dissent. Here's the 170 page stack of majority and concurring and dissenting opinions -- and the banger quote:

. . .IEEPA does not authorize the President to impose tariffs. The judgment in No. 24–1287 is vacated, and the case is remanded with instructions to dismiss for lack of jurisdiction; the judgment in No. 25–250 is affirmed. . . .

[Gorsuch -- concurrence:] . . .The problem for the dissent [Kavanaugh, Alito & Thomas, here] is that none of this is relevant here. Before us, the President concedes that he does not enjoy independent Article II authority to impose tariffs in peacetime. Ante, at 18–19. Nor does the President claim “‘concurrent’” constitutional authority to issue his tariffs. Ante, at 13 (citing Tr. of Oral Arg. 70–71). Instead, and to his credit, the President admits the power to authorize tariffs in peacetime is constitutionally vested in “Congress alone.” Ante, at 13 (internal quotation marks omitted). Therefore, the President relies entirely on power derived from Congress, and that means the major questions doctrine applies in the normal way. . . .

Because of this problem, the dissent must argue for a much broader “foreign affairs” qualification to the major questions doctrine. Rather than ask whether an independent, constitutionally vested presidential power is implicated, the dissent would have us ask instead whether the President seeks to use the statute in question for a foreign affairs purpose -- for example, as a “too[l]” to “incentivize a change in behavior by allies. . . or enemies.” Post, at 50. When he does, the dissent submits, the major questions doctrine should not apply. And that’s true, the dissent continues, even if the power the President asserts has “significant domestic ramifications.” Post, at 51. . . .

This new exception to the major questions doctrine would have (enormous) consequences hard to reconcile with the Constitution. Article I, §8, vests in Congress many powers that touch on “foreign affairs.” Some of those powers were expected to be (and are) the “principal objects of federal legislation.” The Federalist No. 53, p. 333 (C. Rossiter ed. 1961) (J. Madison). They include not only the power to impose tariffs, cl. 1, but also the power to establish uniform rules of naturalization, cl. 4, appropriate money for armies, cl. 12, and define and punish offenses against the law of nations, cl. 10.

Under the dissent’s view, all these legislative powers and more could be passed wholesale to the executive branch in a few loose statutory terms, no matter what domestic ramifications might follow. And, as we have seen, Congress would often find these powers nearly impossible to retrieve. . . .

As [their own] Justice Scalia famously intoned, "the Congress does not hide elephants. . . in mouseholes. . . ." Just as we've said for over a year. Hilarious.

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