From Prof. Jack Goldsmith (Harvard) on the Tariff Decision

An excerpt from his Executive Functions post today; note that his and Curtis Bradley’s Foreign Affairs, Nondelegation, and the Major Questions Doctrine, 172 U. Pa. L. Rev. 1743 (2004) was heavily cited both by Justice Gorsuch’s concurrence and Justice Kavanaugh’s dissent:

A very significant aspect of the Chief Justice’s [Major Questions Doctrne] analysis is that three conservative justices embraced it to rule against President Trump’s signature policy. And they did so in the most difficult possible context, with an issue involving national security and foreign affairs.

This is a rebuttal to those who have claimed that the Court, or at least those three justices, invoke the doctrine opportunistically and politically to hurt Democratic presidents. And I think it signals more clearly than ever that, going forward, this Court is going to view broad delegations of statutory authority to a president to act, and/or extravagant presidential interpretations of authorizations to act, with skepticism. The three justices firmly committed here to the MQD can (if they wish) ensure that outcome in a case of just about any political configuration.

To the extent this is true, it is a hugely important complement to the Court’s emerging broad view of the unitary executive. Put another way, it is a vindication of Sarah Isgur’s view that the tradeoff on the Court for enhancing vertical unitary presidential control is “for the court to rein in Congress’s bad habit of delegating vast and vague powers to the executive branch,” including through MQD.

It also puts in a better light the Court’s interim orders to date in Trump 2.0, a large number of which, due to the application strategy of the Solicitor General, involved issues of vertical control. The tariff opinion gives the lie to the notion that the Court is in the bag for the president and also makes its approach to issues of presidential power in Trump 2.0 both clearer and more nuanced….

[T]he Trump press conference [following the decision] was an amazing portrait of a president who claims to be unbound by law seethingly acquiescing in a court ruling on “an important case to me” that he abhorred with every fiber of his body. It is clear the administration will use every alternative legal tool at its disposal to replicate or go further in deploying international economic weapons. That is its legal prerogative. But still, Trump’s anger combined with his acquiescence in the ruling elevated the Court and was a remarkable testament to its power….

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