SCOTUS Upholds Birthright Citizenship

A number of posts have discussed birthright citizenship.

 Amy Howe at SCOTUSblog:

The Supreme Court on Tuesday struck down President Donald Trump’s executive order seeking to end birthright citizenship – the guarantee of citizenship to virtually everyone born in the United States. In a decision by Chief Justice John Roberts, in Trump v. Barbara, the justices agreed with the challengers, as well as all of the lower courts around the country that have considered the issue, that Trump’s order cannot be reconciled with the 14th Amendment to the Constitution, which confers citizenship on anyone “born … in the United States, and subject to the jurisdiction thereof.”

Writing for the majority, Roberts emphasized that the “children born of parents unlawfully or temporarily present in the United States” “satisfy both elements of the Citizenship Clause.” “Under the Constitution,” he concluded, “they are citizens at birth.”

In a dissenting opinion, Justice Samuel Alito called the ruling both “one of the most important decisions in the history of the Court” and “a serious mistake.” “Careful analysis of the text of the Fourteenth Amendment and the process that led to its adoption,” Alito argued, “shows that it does not degrade the concept of United States citizenship in this way. Instead,” he contended, “the Fourteenth Amendment confers citizenship on only those children who, at birth, owe allegiance solely to this country.”

Trump issued the executive order at the center of the case on Jan. 20, 2025, shortly after he was sworn into office for a second term. It provided that babies who are born in the United States to parents who are in this country either illegally or temporarily are not automatically entitled to citizenship.

Goodbye, Humphrey's Executor

Many posts have discussed regulation and the administrative state. 

Amy Howe at SCOTUSblog:

The Supreme Court on Monday gave President Donald Trump sweeping new authority over approximately two dozen multi-member agencies that Congress intended to be independent. By a vote of 6-3, the justices struck down a federal law that bars the president from firing members of the Federal Trade Commission except in cases of “inefficiency, neglect of duty, or malfeasance in office.” That law, a majority of the justices ruled, violates the constitutional separation of powers between the three branches of government. And in reaching that decision, the court overruled its 91-year-old decision in Humphrey’s Executor v. United States, which had upheld the law at the center of the dispute.

More broadly, Monday’s decision was a major victory for proponents of the “unitary executive” theory – the idea that the president should have complete control over the executive branch. Under this theory, the president should be able to fire any member of the executive branch, and laws – like the one that the court struck down – that restrict his ability to do so violate the separation of powers.

Writing for the majority, Chief Justice John Roberts contended that “the President must have the assistance of officers he can trust. Although it is up to the Senate to decide whether to confirm those with whom the President would prefer to work, neither Congress nor the courts may saddle him with those with whom he cannot work. Subordinates who exercise the President’s power are subject to removal by him. Then, and only then, can they remain accountable to the President, and the President to the people.”

Justice Sonia Sotomayor penned a 49-page dissent that was joined by Justices Elena Kagan and Ketanji Brown Jackson. “Today,” she wrote, “the Court discards” the “democratic regime” created by the Constitution “in favor of one that distorts the structure of Government to fit the majority’s theory of unitary, total executive control. The result,” she concluded, “is a President who emerges with far greater power than ever before.”

Justice Kagan Notes Trump's Racism

Many posts have discussed immigration and asylum.

Justice Kagan's dissent in Mullin v. Doe (25-1083)

The Haiti plaintiffs have yet another claim that is likely to succeed: that race entered into the decision to terminate Haiti’s TPS designation, in violation of equal protection.

 ...

It is more than plausible: Even putting the clear-error standard aside, the Haiti plaintiffs have carried their burden. The evidence they have offered includes statements by the President so repellent and racially inflected that the majority declines to put them in print.  (Indeed, one measure of the President’s way of speaking about Haitians is to compare it with the majority’s, which is unfailingly respectful.4) So here are some of those statements. Haitians are “eating the dogs . . . . They’re eating the cats. They’re eating—they’re eating the pets of the people that live [in Springfield, Ohio].” 2 App. 802; see id., at 644.  And: Haitians are also eating “other things too that they’re not supposed to be.” Id., at 698–699.  And: Haitians in the United States “probably have AIDS.”  Id., at 698. And: Haiti is a “shithole country,” which is “filthy, dirty, [and] disgusting.” Id., at 698–699. And: Haitian immigration is “like a death wish for our country.”  Id., at 698. And: Haitians, along with some others, are “poisoning the blood” of our country. Id., at 698.  And: “Why is it we only take people from shithole countries” like “Haiti [and] Somalia”? “Why cannot we have some people from Norway [and] Sweden?” Id., at 699. The majority briefly replies that those remarks are not “overtly racial,” ante, at 21, but it is hard to know what that means. Haitians are Black.  (Norwegians and Swedes not so much.)  The references—of filth, disease, and primitiveness—are shot through with racial stereotypes and tropes. It is hard to imagine the statements being made today of any White community.  No very “sensitive inquiry,” of the kind Arlington Heights compels, is needed to see them for what they are, 429 U. S., at 266; judges, as we often say, are “not required to exhibit a naiveté from which ordinary citizens are free,” Department of Commerce, 588 U. S., at 785.  The statements fairly shout, in their racial undertones and overtones alike, that race entered into the President’s resolve to remove Haitians from this country.

\

Defying the Courts

Many posts have discussed presidential power.

SUDHIN THANAWALA at AP:

The failure of Trump officials to follow court orders has been highlighted most notably in individual immigration cases. But a review of hundreds of pages of court records by The Associated Press also shows an extraordinary record of violations in lawsuits over policy changes and other moves.

In the second Trump administration’s first 15 months in office, district court judges ruled it was violating an order in at least 31 lawsuits over a wide range of issues, including mass layoffs, deportations, spending cuts and immigration practices, the AP’s review of court records found. That’s about one out of every eight lawsuits in which courts have at least temporarily blocked the administration’s actions.

The Republican administration’s power struggle with federal courts — which is testing basic tenets of U.S. democracy — reflects an expansive view of executive authority that has also challenged the independence of federal agencies, a president’s ethical obligations, and the U.S.’s role in the international order.

The Trump administration violations in the 31 lawsuits are in addition to more than 250 instances of noncompliance judges have recently highlighted in individual immigration petitions — from failing to return property to keeping immigrants locked up past court-ordered release dates.

Legal scholars and former federal judges said they could recall at most a few violations of court rulings over the full four-year terms of other recent presidential administrations, including Trump’s first time in office. They also noted previous administrations were generally apologetic when confronted by judges; the Trump administration’s Justice Department has been outright combative in some cases.

...

The AP’s review also found that higher courts, including the Supreme Court, overruled the district courts and sided with the White House in nearly half of the 31 cases. Critics say those decisions are emboldening the administration to ignore judges’ orders.

King Charles on America

 Many posts have discussed the Founding.

Ironically, the British monarch echoed the No Kings rallies in the US.

From King Charles's Address to Congress:

The Founding Fathers were bold and imaginative rebels with a cause. Two hundred and fifty years ago, or, as we say in the United Kingdom ‘just the other day,’ they declared Independence. By balancing contending forces and drawing strength in diversity, they united 13 disparate colonies to forge a nation on the revolutionary idea of ‘life, liberty and the pursuit of happiness.’ They carried with them, and carried forward, the great inheritance of the British Enlightenment – as well as the ideals which had an even deeper history in English common law and Magna Carta.

These roots run deep, and they are still vital. Our Declaration of Rights of 1689 was not only the foundation of our constitutional monarchy, but also provided the source of so many of the principles reiterated, often verbatim, in the American Bill of Rights of 1791.

And those roots go even further back in our history: the U.S. Supreme Court Historical Society has calculated that Magna Carta is cited in at least 160 Supreme Court cases since 1789, not least as the foundation of the principle that executive power is subject to checks and balances.

This is the reason why there stands a stone, by the River Thames at Runnymede where Magna Carta was signed in the year 1215. This stone records that an acre of that ancient and historic site was given to the United States of America by the people of the United Kingdom, to symbolize our shared resolve in support of liberty, and in memory of President John F. Kennedy.

Distinguished members of the 119th Congress, it is here in these very halls that this spirit of liberty and the promise of America’s founders is present in every session and every vote cast.

Not by the will of one, but by the deliberation of many, representing the living mosaic of the United States. In both of our countries, it is the very fact of our vibrant, diverse and free societies that gives us our collective strength, including to support victims of some of the ills that, so tragically, exist in both our societies today.

The Shadow Docket's Origin Story

Many posts have discussed the judiciary.

  Jodi Kantor and Adam Liptak at NYT:

Just after 6 p.m. on a February evening in 2016, the Supreme Court issued a cryptic, one paragraph ruling that sent both climate policy and the court itself spinning in new directions.

For two centuries, the court had generally handled major cases at a stately pace that encouraged care and deliberation, relying on written briefs, oral arguments and in-person discussions. The justices composed detailed opinions that explained their thinking to the public and rendered judgment only after other courts had weighed in.

But this time, the justices were sprinting to block a major presidential initiative. By a 5-to-4 vote along partisan lines, the order halted President Barack Obama’s Clean Power Plan, his signature environmental policy. They acted before any other court had addressed the plan’s lawfulness. The decision consisted of only legal boilerplate, without a word of reasoning.

At the time, the ruling seemed like a curious one-off. But that single paragraph turned out to be a sharp and lasting break. That night marks the birth, many legal experts believe, of the court’s modern “shadow docket,” the secretive track that the Supreme Court has since used to make many major decisions, including granting President Trump more than 20 key victories on issues from immigration to agency power.

Since that night a decade ago, the logic behind the Supreme Court’s pivotal 2016 order has remained a mystery. Why did a majority of the justices bypass time-tested procedures and opt for a new way of doing business?

The answer would remain secret for generations, legal experts predicted. “We’ll never know (at least, until our grandkids can read the justices’ internal papers from that time period),” Stephen Vladeck, a law professor at Georgetown, wrote in a newsletter in February marking the anniversary of the order.

The New York Times has obtained those papers and is now publishing them, bringing the origins of the Supreme Court’s shadow docket into the light.

The 16 pages of memos, exchanged in a five-day dash, provide an extraordinarily rare window into the court, showing how the justices talk to one another outside of public view.

 

Presidential Power

Many posts have discussed the presidency.

Bruce Mehlman:

 

SO WHAT: However the Iran War ends, it has already changed the world. Every government now faces the same calculation: spend heavily on resilience — energy, infrastructure, defense industrial base — or accept dependence on rivals. Most will spend. Expect higher debt, harder borders, and a louder nationalism in every capital.

Stare Decisis Really Sticks

Many posts have discussed the judiciary.

Mia Hennen at Pew:

The U.S. Supreme Court is weighing whether to overrule two of its own long-standing legal precedents – one about presidential power over federal agencies, which has been in place for over 90 years, and another about campaign financing by political parties.

These cases follow the court’s high-profile decision in June 2022 to overturn Roe v. Wade, a ruling that had guaranteed the right to an abortion nationwide for nearly five decades.

Since the Supreme Court’s founding in 1789 through its most recent full term in 2024, fewer than 1% of all rulings (236 of 29,202) have overturned an earlier high court decision, according to a Pew Research Center analysis of data from the Library of Congress and the Supreme Court Database at Pennsylvania State University.

Overturning precedent hasn’t been very common in recent decades, either. Between the 2005 and 2024 terms, only 21 of 1,471 rulings (1.4%) overturned one or more earlier decisions.

 

More Tariffs

Many posts have dealt with tariffs and trade. 

Ilya Somin at Reason:

Within hours of the Supreme Court's decision striking down his massive IEEPA tariffs in our case challenging them, Donald Trump issued an executive proclamation invoking Section 122 of the Trade Act of 1974 to impose 10% global tariffs, and then upped the rate to 15%. Prominent conservative legal commentator Andrew McCarthy has an insightful National Review article explaining why these new tariffs are also illegal. McCarthy and I differ over many issues. But we agree on this one. Here's an excerpt:

These new tariffs are even more clearly illegal than Trump's IEEPA tariffs…..

In Section 122, Congress endowed the president with narrow, temporary authority to impose tariffs "to deal with large and serious United States balance-of-payments deficits" (emphasis added). What Trump is complaining about — something he insists is a crisis but is not — is the balance of trade, not of payments. The United States does not have an overall balance of payments deficit, much less a large and serious one.

A trade deficit between the U.S. and a foreign nation occurs, mainly in connection with goods (which is just one aspect of international commerce), when imports are greater than exports. This is not really a problem for a variety of reasons — e.g., a trade deficit results in an investment surplus, the U.S. is a major services economy and often runs exported services surpluses that mitigate the imports deficit in goods, etc.

The balance of payments is a broader concept than the balance of trade. It accounts for all the economic transactions that take place between the United States and the rest of the world. Even without getting into every kind of transaction that entails, suffice it to say that foreign investment in the United States, coupled with the advantages our nation accrues because the dollar is the world's reserve currency, more than make up for the longstanding trade deficit in goods.

Our overall payments are in balance. There is no crisis.

Gorsuch on Tariffs, Deliberation, and the Separation of Powers

Many posts have discussed the presidency.

By a 6-3 vote, SCOTUS ruled that President Trump exceeded his authority under the 1977 International Emergency Economic Powers Act (IEEPA) to impose tariffs.

Justice Gorsuch's Concurrence in  Learning Resources Inc. v. Trump:

And, of course, it was duties on foreign tea that triggered the Boston Tea Party. J. Ellis, The Cause 17–18 (2021). Are we really to believe that the patriots that night in Boston Harbor considered the whole of the tariff power some kingly prerogative?

...

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. 

SCOTUS Retirements and the Ages of Justices

Many posts have discussed the judiciary.

There are rumors that Justice Alito might retire soon.

Bruce Mehlman:

Supreme Court vacancies occur when Justices choose to retire or die in office. They cannot be fired by the President. So far none of the sitting Justices have indicated a desire to depart, and all are well-below the average age of departing modern Justices (79.3 since 1970). On May 7, 2026, Clarence Thomas — the oldest current Justice at 77 — will become the second-longest serving in Court history (12,614 days), with only 745 more days needed to exceed William O. Douglas’ record for longest. The President may not be the only one with eyes on the history books.

 

Trump II, First Year

Many posts have discussed the presidency.

 Ballotpedia:

Earlier this week marked the one year anniversary since Donald Trump (R) assumed office as the 47th president of the United States, making him one of only two U.S. presidents to serve two non-consecutive terms. Here’s a look at the first year of his second term, by the numbers, though Jan. 16.

Executive actions

Trump issued 229 executive orders, 57 presidential memoranda, and 118 proclamations in the first year of his second term. Trump’s executive order total was the highest first-year executive order total since Franklin Delano Roosevelt (D), who issued 568 executive orders in 1933.

Federal judges

Trump nominated, and the Senate confirmed 27 Article III federal judges, including 21 to U.S. District Courts and six to the U.S. Courts of Appeals. During the first year of his first term, Trump nominated, and the Senate confirmed 23 Article III judges, including one Supreme Court Justice, 12 to the U.S. Courts of Appeals, and 10 to the U.S. District Courts.

Supreme Court emergency applications

The Trump administration filed 32 emergency applications with the Supreme Court. An emergency application asks the Court for immediate intervention in a case that has not fully progressed through the ordinary procedures required for the Court to issue a regular opinion. The Court granted the Trump administration’s request for intervention in 21 cases.

Presidential pardons

Trump issued 181 presidential pardons and commutations, not including instances of mass pardons. According to the Department of Justice, during fiscal year 2017, Trump issued one pardon and no commutations. Joe Biden (D), Barack Obama (D), and George W. Bush (R) issued no pardons or commutations during their first fiscal year in office.

Tie-breaking votes in the Senate

Under Article I, Section 3, Clause 4 of the U.S. Constitution, the vice president also serves as the president of the Senate and may cast the deciding vote when there is a tie in the Senate. Vice President J.D. Vance (R) cast seven tie-breaking votes in the Senate.

An Incident in Minneapolis

 Zolan Kanno-Youngs at NYT:

Just hours after an Immigration and Customs Enforcement agent shot a 37-year-old woman in Minneapolis on Wednesday, Mr. Trump told a group of New York Times reporters that the woman was at fault because she had tried to “run over” the officer.

We were in the Oval Office for an interview with the president, and the unfolding situation in Minneapolis was high on our list of questions. As soon as we started asking him about the incident, he said: “I want to see nobody get shot. I want to see nobody screaming and trying to run over policemen either.”

When we pressed Mr. Trump on his conclusion that the victim, Renee Nicole Good, tried to run over the agent, he asked an aide to pull up the video on a laptop in an effort to prove his point.

“That was a vicious situation that took place,” Mr. Trump said, apparently referring to what federal officials have said was an effort by Ms. Good to run down an ICE agent.

...

Before the video began, Mr. Trump acknowledged the tragic nature of the shooting. “With all of it being said, no, I don’t like that happening,” he said, before pivoting to his common refrain of criticizing illegal immigration.

As a slow-motion surveillance video of the shooting played on the laptop, we told him that this angle did not appear to show an ICE officer had been run over.

“Well,” Mr. Trump said. “I — the way I look at it … ”

“It’s a terrible scene,” Mr. Trump said at the end of the video. “I think it’s horrible to watch. No, I hate to see it.”

But did this fatal shooting mean his ICE operation had gone too far? Mr. Trump sidestepped the question, instead blaming his predecessor's immigration policies.

But did this fatal shooting mean his ICE operation had gone too far? Mr. Trump sidestepped the question, instead blaming his predecessor's immigration policies.

 

Btw, those in my QT's smugly asserting that law enforcement has wide latitude to use lethal force against fleeing suspects may wish to consult Tennessee v. Garner, 471 U.S. 1 (1985).

— Jessica Riedl 🧀 🇺🇦 (@JessicaBRiedl) January 8, 2026

Tennessee v. Garner, 471 U.S. 1 (1985) Argued: October 30, 1984 Decided: March 27, 1985 Annotation Primary Holding Under the Fourth Amendment of the U.S. Constitution, a police officer may use deadly force to prevent the escape of a fleeing suspect only if the officer has a good-faith belief that the suspect poses a significant threat of death or serious physical injury to the officer or others.

Oaths and the Judgment of HIstory

Many posts have discussed oaths of office.

William H. Pryor, Jr., Chief Judge of the United States Court of Appeals for the Eleventh Circuit, writes at The Public Discourse:

Today, judges still take the same oath that Chief Justice Marshall swore. Judges swear before God to uphold the Constitution and laws of the United States wherever it leads. We do not swear to follow a prediction or speculation about what future generations will favor.

When modern society substitutes the so-called judgment of history for the historical standard of the oath of office, it raises almost unanswerable questions. How will history “judge” any public official? And how often will any public official’s work matter to any legal historian?

...

When someone argues that the so-called judgment of history matters in some case, he betrays his desired result in a high-profile controversy regardless of what the judge’s oath to uphold the law requires. But asking how future generations will view us is a fool’s errand. The person who asks that question is only projecting his hope about what future generations will think. Yet no one knows whether future generations will be wise or wicked. Nor do we know whether they will be any less divided in their views than previous generations have been.

The most abominable opinions in the history of the Supreme Court were written by jurists who probably thought they stood on the right side of history. Roger Taney probably thought so when he penned Dred Scott. Yet his notorious opinion helped lead to the Civil War. Oliver Wendell Holmes undoubtedly thought he was on the right side of history when he wrote, “Three generations of imbeciles are enough” in Buck v. Bell. But Americans thankfully have since abandoned state-enforced eugenics. Harry Blackmun probably thought history would look kindly on his opinion in Roe v. Wade. A half-century later, the Supreme Court overruled it as an “egregious” mistake. And in each period, the jurist’s peers celebrated those opinions.

Protection Against Denaturalization

Several  posts have discussed naturalization and denaturalization.  

 Denaturalization is in the news.

Faiza Patel, Margy O’Herron, and Kendall Verhovek at the Brennan Center:

Under the law today, the government may seek denaturalization proceedings either when naturalization is obtained illegally or disqualifying facts on citizenship applications are concealed. But throughout much of the 20th century, it was much easier to achieve.

More than 22,000 Americans lost their citizenship between 1907 and 1967 based on political affiliations, race, and gender, according to denaturalization scholar Patrick Weil. President Woodrow Wilson’s administration began denaturalizing German- and Asian-born citizens during World War I, along with anarchists and people who spoke out against the war. During World War II, a push for denaturalization of naturalized citizens from Germany, Italy, and Japan intensified. A primary target included members of the pro-Nazi German-American Bund for disloyalty and insufficient attachment to the principles of the Constitution.

After the war, the Second Red Scare took hold of a country fearful of domestic communism amid its emergence abroad. Sen. Joseph McCarthy of Wisconsin led witch hunts, with denaturalization often used as a tool against accused communists or sympathizers. Among those targets was Harry Bridges, an Australian-born, nationally known labor leader accused of being a communist, who faced an ultimately unsuccessful campaign to revoke his citizenship. The Supreme Court ruled in his favor, not once, but twice.

Throughout the 20th century, the Court’s jurisprudence evolved to protect naturalized citizens — even those with unpopular views during wartime — against efforts to strip them of citizenship. The Court established constraints on the government’s ability to revoke citizenship in a case challenging an attempt to denaturalize Russian-born William Schneiderman over ties to the Communist Party. The Court wrote, “We believe the facts and the law should be construed as far as is reasonably possible in favor of the citizen.” It also emphasized that citizenship should not be rescinded lightly: “[The United States] must sustain the heavy burden which then rests upon it to prove lack of attachment by ‘clear, unequivocal, and convincing’ evidence.”

A few years later, the Supreme Court warned against using denaturalization proceedings as a political weapon. “Ill-tempered expressions, extreme views, even the promotion of ideas which run counter to our American ideals, are not to be given disloyal connotations in absence of solid, convincing evidence that that is their significance,” the Court’s majority wrote. “Any other course would run counter to our traditions, and make denaturalization proceedings the ready instrument for political persecutions.”

In 1967, the Court found that under the 14th Amendment, the government cannot forcibly deprive a naturalized American of citizenship without the citizen’s consent, except when citizenship is “unlawfully procured.”

In the succeeding decades, denaturalizations declined significantly. Between 1990 and 2017, the Justice Department filed an average of just 11 cases per year. Only during the Obama administration did they climb, when new technology allowed the government to search decades of data for indicators of possible fraud. In 2016, the yearly average rose to 15. During the first Trump administration, the program expanded, increasing the average to 25 per year.

Yet the Supreme Court remained resistant to easing limits on denaturalization. In 2017, the Court unanimously ruled that citizenship was “unlawfully procured” only if the unlawful act, such as making a false statement, had a causal connection to the acquisition of citizenship. The Court wrote that a prosecutor should not be able to “scour her paperwork” and bring a charge because doing so would “give prosecutors nearly limitless leverage — and afford newly naturalized citizens precious little security.”

Nondelegation

Many posts have dealt with tariffs and trade. U.S. Solicitor General D. John Sauer argued that the International Emergency Economic Powers Act gave Trump the power to impose tariffs.

 JUSTICE GORSUCH:  You're saying there's inherent authority in foreign affairs, all foreign affairs, so regulate commerce, duties and --and --and --and 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? 

GENERAL SAUER:  That would be different than a situation where there are metes and bounds, so to speak. It would be a wholesale abdication.

 JUSTICE GORSUCH:  You say we --we -- we are not here to judge metes and bounds when the foreign affairs.  That's what I'm struggling with. You'd have to have some test. And if it isn't the intelligible principle test or something more --with more bite than that, you're saying it's something less.  Well, what is that less? 

GENERAL SAUER:  I think what the Court has said in its opinions is just that it applies with much less force, more limited application in this context. So perhaps the right way to approach it is a very, very deferential application of the intelligible --intelligible principle test, that --that sort of wholesale abdication of --don't like to -- 

JUSTICE GORSUCH:  All right.  So now you're admitting that there is some nondelegation principle at play here and, therefore, major questions as well, is that right?

 GENERAL SAUER:  If so, very limited, you know, very, very deferential -- 

JUSTICE GORSUCH:  Okay. 

GENERAL SAUER:  --and limited is what --and, again, the phrase that Justice Jackson used is it just does not apply, at least --

 JUSTICE GORSUCH:  I know, but that's where you started off, and now you've retreated from that as I understand it. 

GENERAL SAUER:  Well, I think we would as our frontline position assert a stronger position, but if the Court doesn't accept it, then, if there is a highly deferential version --

 JUSTICE GORSUCH:  Can you give me a reason to accept it, though? That's what I'm struggling and waiting for.  What's the reason to accept the notion that Congress can hand off the power to declare war to the President? 

GENERAL SAUER:  Well, we don't contend that. Again, that would be --

JUSTICE GORSUCH:  Well, you do.  You say it's unreviewable, that there's no manageable standard, nothing to be done.  And now you're --I think you --tell me if I'm wrong. You've backed off that position. 

GENERAL SAUER:  Maybe that's fair to say.

 JUSTICE GORSUCH:  Okay. All right. Thank you. (Laughter.)

Brief Against Tariffs

Many posts have dealt with tariffs and trade.

Senators Jeanne Shaheen and Ron Wyden, together with colleagues, filed an amicus brief against Trump tariffs: 

The Federal Circuit, Court of International Trade, and District Court for the District of Columbia all reached the same correct conclusion: the President’s imposition of tariffs under IEEPA is unlawful. 

Only Congress has the power to “lay and collect Taxes, Duties, Imposts and Excises,” U.S. Const. Art. I, § 8, cl. 1 and to “regulate Commerce with foreign Nations,” id., cl. 3. This reflects the Framers’ intent for the most democratically accountable branch—the one closest to the People—to be responsible for enacting taxes, duties, and tariffs. Hamilton, Federalist Nos. 31–36, The Same Subject Continued: Concerning the General Power of Taxation (Jan. 1788)

Congress enacted IEEPA, 50 U.S.C. §§ 1701–1710, to provide the President with the power to impose sanctions, export controls, and similar measures. It provides the President with defined powers to address national emergencies but does not confer the power to impose or remove tariffs.

Neither the word “duties” nor the word “tariffs” appears anywhere in IEEPA. Rather, IEEPA allows the President, in times of a declared emergency, to “regulate … importation or exportation” of property. 50 U.S.C.  § 1702(a)(1)(B). IEEPA’s delegated power to “regulate” is not a power to impose tariffs.

IEEPA contains none of the hallmarks of legislation delegating tariff power to the executive, such as limitations tied to specific products or countries, caps on the amount of tariff increases, procedural safeguards, public input, collaboration with Congress, or time limitations. In the five decades since IEEPA’s enactment, no President from either party, until now, has ever invoked IEEPA to impose tariffs.

The Administration’s interpretation of IEEPA would effectively nullify the guardrails set forth in every statute in which Congress expressly granted the President limited tariff authority—a result Congress did not intend.

Contrary to the views expressed by the Administration and the Federal Circuit dissent, IEEPA does not authorize the President to impose tariffs as “bargaining chips.” While this Court has held that Presidents may use IEEPA to freeze foreign assets and to then use those frozen assets as leverage in foreign affairs negotiations, Dames & Moore v. Regan, 453 U.S. 654, 673 (1981), IEEPA does not grant the President the power to impose tariffs on American citizens importing goods to generate leverage in trade talks. Nor may the President use IEEPA to override America’s trade statutes, which Congress has carefully considered and enacted over the years. The President “is not free from the ordinary controls and checks of Congress merely because foreign affairs are at issue.” Zivotofsky ex rel. Zivotofsky v. Kerry, 576 U.S. 1, 21 (2015)

This Court should hold that IEEPA does not delegate tariff authority to the President and the President’s tariffs under IEEPA are therefore unlawful.

Judges and the Shadow Docket

Many posts have discussed the independence of the judiciary.

Mattathias Schwartz and Zach Montague at NYT:

More than three dozen federal judges have told The New York Times that the Supreme Court’s flurry of brief, opaque emergency orders in cases related to the Trump administration have left them confused about how to proceed in those matters and are hurting the judiciary’s image with the public.

At issue are the quick-turn orders the Supreme Court has issued dictating whether Trump administration policies should be left in place while they are litigated through the lower courts. That emergency docket, a growing part of the Supreme Court’s work in recent years, has taken on greater importance amid the flood of litigation challenging President Trump’s efforts to expand executive power.

While the orders are technically temporary, they have had broad practical effects, allowing the administration to deport tens of thousands of people, discharge transgender military service members, fire thousands of government workers and slash federal spending.

The striking and highly unusual critique of the nation’s highest court from lower court judges reveals the degree to which litigation over Mr. Trump’s agenda has created strains in the federal judicial system.

 

Shadow Docket and ICE

 Ilya Somin at Reason:

Today, the Supreme Court issued a "shadow docket" ruling staying a district court decision that had enjoined ICE from engaging in racial and ethnic profiling in immigration enforcement in Los Angeles. The decision was apparently joined by the six conservative justices; the three liberals dissented. As is often the case with "emergency"/shadow docket rulings, there is no majority opinion. Thus, we cannot know for sure what the majority justices' reasoning was. We have only a concurring opinion by Justice Brett Kavanaugh. But that opinion has deeply problematic elements. Most importantly, it is fundamentally at odds with the principle that government must be "color-blind" and abjure racial discrimination.

The district court found extensive use of racial profiling by ICE in immigration enforcement in the LA area, and issued an injunction barring it. Justice Kavanaugh, however, contends that the profiling is not so bad, and does not necessarily violate the Fourth Amendment because, while "apparent ethnicity alone cannot furnish reasonable suspicion," it could count as a "relevant factor when considered along with other salient factors."

Last month Erwin Chemerinsky wrote at SCOTUSblog::

The Supreme Court long has had an emergency docket. These are matters where a party comes to the court for an order on an emergency basis without full briefing and oral argument. For example, those facing the death penalty often have gone to the court seeking a last-minute, emergency stay of execution. But as Stephen Vladeck documented in his excellent book, The Shadow Docket, over the past decade there was a notable growth in matters decided by the court on its emergency docket.

Since Professor Vladeck’s book was published in 2023, the emergency docket has taken on even greater significance. In the 2023-24 term, there were 44 matters on the emergency docket. In the 2024-25 term, through June 27 (the last day decisions were released), there were 113 matters on the emergency docket.

In the past two months, the court has issued a number of important rulings on its emergency docket concerning the legality of actions by President Donald Trump. Virtually all have been 6-3 rulings, with Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson dissenting.

...

Significant rulings without the benefit of full briefing, oral argument, and deliberation among the justices. As a lawyer, I want the opportunity to fully brief my case and to argue it to the court. The procedures in every appellate court are based on the assumption that briefing and argument can matter greatly. Yet, the briefs in cases on the emergency docket are nowhere near as developed as those in cases on the merits, and there is no oral argument. Nor do the justices even meet to discuss these cases before issuing rulings on them. If one believes that briefing, arguing, and deliberating matters are essential to a system of law – and I certainly do – we should be deeply troubled by their absence when the court is issuing major rulings without them.

Polarization and Approval of Institutions

Many posts have discussed partisan polarization.

Jeffrey M. Jones at Gallup:

Republicans’ and Democrats’ evaluations of both the Supreme Court and Congress have never diverged more than in Gallup’s latest update.

Seventy-five percent of Republicans versus 11% of Democrats approve of the job the Supreme Court is doing, according to a July 7-21 poll. This 64-percentage-point party gap exceeds the prior high of 61 points, recorded after the high court overturned Roe v. Wade in its 2022 Dobbs ruling.

At the same time, 55 points separate Republicans’ (61%) and Democrats’ (6%) approval of Congress. That ties with another 55-point party gap from March as the largest in Gallup’s trend dating back to 1974.