From the concordance to the transcript of the argument in Learning Center v. Trump:
Context:noun [5] 16:19 52:3,25 53:
20 85:22 ...
verb [9] 11:25 16:10 40:8
52:3,11 53:20 100:13 135:
4 176:21
verbs [29]11:25 12:2,7 16:
19 28:16 29:3,16,22 30:2
GENERAL SAUER: Dames & Moore... said, this particular provision, where Congress has given these broad verbs, I mean, "regulate" is a capacious verb, admittedly, so are "nullify," so are "void," so are, frankly, all the other verbs there in the -- the language in IEEPA. The way the Court thought about it is we're looking at this through the lens of Justice Jackson's opinion in Youngstown. And the Court held specifically that these verbs placed the President in Youngstown Zone 1. The Court held that -- that he's subject -- subject to the widest latitude of judicial interpretation....
JUSTICE SOTOMAYOR: Why -- could you tell me why it is that when Congress intended to permit a president to regulate by imposing tariffs, it's always used "tariff" and "regulate."...
GENERAL SAUER: Respectfully, this Court came to the opposite conclusion, if I may, in Algonquin.... What it held was the phrase "adjust imports," which includes a verb that's narrower --
JUSTICE SOTOMAYOR: But it was in the context... of activities that had to do with raising and lowering duties. Here, the noun -- the verbs that accompany "regulate" have nothing to do with raising revenues in the form of taxes...
***
JUSTICE BARRETT: -- about the -- the plain text, General Sauer. So you've referred to the other verbs in IEEPA as capacious. Would you really describe them as capacious? Because, to me, things like "nullify" and "void" have definite meanings. I agree with you that "regulate" is a broader term. But those words, I think, are powerful. They give -- they pack a punch. But I wouldn't describe them as "capacious" in the sense that they have a wide range of meanings. So can you describe what you mean by "capacious"?
GENERAL SAUER: 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, to grant the power all --
JUSTICE KAGAN: 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 -- and -- 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.
GENERAL SAUER: Well, I would say the -- the notion that all these other verbs are -- are sort of not revenue-raising, like "block" and "prohibit," I think that that argument is unconvincing for two reasons. One, of course, is that we don't -- we're not saying it confers a revenue-raising power. We're saying it confers a regulatory power. And that's a crucial distinction. But also --
JUSTICE KAGAN: Yes, but if I can just stop you there, regulatory power -- I mean, yes, it says "regulate," but I'll broaden out Justice Barrett's question: Is there any place that you can find in the entire Code where "regulate" used just as "regulate" includes taxing power?
GENERAL SAUER: We don't assert that. We say it includes tariffing power when it's combined with "importation." And that's just the most natural way to --
JUSTICE KAGAN: Right. Because the natural understanding of "regulate," even -- even though, in fact, we can regulate through taxes, but when the Code uses "regulate," we don't typically understand it to refer to duties or taxes or tariffs or anything of the kind. And then, if you look at the flip side of this and you look at all the tariff statutes that Congress has passed, I mean, they use language about revenue-raising, tariffs and duties and taxes, all the language that does not appear in the statute you rely on.
GENERAL SAUER: Start with sort of the grammatical structure of the statute, then refer to the other statutes. "Regulate importation," you put those two words in combination, that's -- the inference from that is, you know, the founders discussed with this sort of, like, you know, "as everyone knows" attitude, "regulate importation" then, one of the most natural applications of that is the power to tariff. So, when Congress confers the power to regulate imports, it is naturally conferring the power to tariff, which it has delegated to the executive branch, you know, again and again and again going back to the country's origins.....
***
JUSTICE SOTOMAYOR: I'd like to go back to Justice Barrett's question on the word "license" as used in IEEPA. It's not used as a verb. It's used as a noun. By -- "the President may under such regulations as he may prescribe by means of instructions, licenses, or otherwise," then do what the verbs permit him to do. By license, he can nullify, void, prevent, or prohibit any acquisition, et cetera. So "license" is not being used as a verb, that through licensing he can raise revenue. He can only use licenses to accomplish the verbs. So I don't understand how we can treat licensing as equivalent to revenue-raising as used in IEEPA. The license is only to accomplish what (b) permits.
GENERAL SAUER: In Hamilton against Dillin, licenses -- once you had the license, then you had to pay the fees, the --
JUSTICE SOTOMAYOR: But that's --
GENERAL SAUER: -- license fees to get it in, and those are economic --
JUSTICE SOTOMAYOR: -- but that's the point I'm making, which is that the only use of "license" here is a noun. You can license to accomplish the powers that (b) gives the President.
GENERAL SAUER: Let me be clear. We rely on the phrase "regulate importation." We're not saying that the Executive Order --
JUSTICE SOTOMAYOR: Exactly. You're not relying on licenses for that reason, correct?
GENERAL SAUER: No. I only cite that language, that introductory language about, you know, instruments, licenses, and otherwise, as --
JUSTICE SOTOMAYOR: That you -- you can't rely on it when you --
GENERAL SAUER: -- another layer of breadth in this particular statute.
JUSTICE SOTOMAYOR: Counsel, would you listen to my question? You're not relying on "license" for the reason I just said, because it is a noun, not the verb. You're relying on "regulate," correct?
GENERAL SAUER: Yes, we're relying on "regulate importation" here.
JUSTICE SOTOMAYOR: All right. And despite the fact that no other president in the history of IEEPA has ever used -- has ever imported -- used tariffs as a power under IEEPA?
GENERAL SAUER: Well, President Nixon did so under TWEA.
JUSTICE SOTOMAYOR: Under a predecessor, and we have all the limitations of that. All right. Number two, whenever Congress intends to -- to permit taxing and regulate, it uses the word "tax and regulate" in every other statute, correct?
GENERAL SAUER: I don't concede that. I mean, two very visible examples, again, are TWEA and Section 122 --
JUSTICE SOTOMAYOR: We're -- we're back to the -- the question here. Okay. Thank you, counsel.
CHIEF JUSTICE ROBERTS: Justice Sotomayor?
JUSTICE KAGAN: No, she's Justice Sotomayor.
JUSTICE SOTOMAYOR: Yeah. (Laughter.)
JUSTICE KAGAN: She just finished.
Posts
44 comments:
I really wish we would stop referring to Attorneys General as "General." IIRC, that was not the intent of the term, and these folks have no military rank.
Two, four, six, eight
Hyper-focused on the conjugates
So, a majority of SCOTUS is going to void every trade agreement Trump has reached over the last year? China can resume shipping Fentanyl precursors to the cartels. China can cut off all supply of rare earth magnets to US defense manufacturers, and Trump has no choice but to allow that and free flow of cheap China-made pharmaceuticals, cell phones and other goods. As long as Democrats have at least 41 Senate seats, Congress can do nothing about any of that.
Only Nancy Pelosi can decide these things.
I’m looking forward to calling “regulation” a tax on Americans and restricting Presidential ability to regulate. So much winning.
Nancy announces retirement: GOOD riddance to bad BAD rubbish!
Checks and balances are indeed inconvenient. That was by design. It's a supreme court rules in Trump's favor on this issue, when Gavin Newscome and Nancy pelosi take over the presidency and Congress once again, they'll be able to do whatever they like to impose their vision of a highly regulated administrative state. Because of our birth rate emergency, they will mandate the importation of vast millions from third world countries who are escaping their own climate emergency.
A sword has two edges and a ratchet works in One direction
The conservative, Trump-appointed judges on the Supreme Court are going to end Donnie’s mad trade antics.
Other countries now have no incentive to negotiate with him. As many have been saying all along, he illegally grabbed power. Now he is fucked.
Donnie is going to be spending the rest of his days in the White House as the mad (non) king overseeing the building of his gilded ballroom.
It ain't going to be pretty for Repuglicans.
Licensing. There's no sharp division between deverbal nouns, present participles and gerunds.
Deverbal nouns
Some paintings of Browns
Brown's paintings of his daughter
Verbal nouns
The painting of Brown is skillful
Brown's deft painting of his daughter
Gerunds
Brown's deftly painting his daughter is a delight to watch
I dislike Brown's painting his daughter
Present Particple
I watched Brown painting his daughter
FYI, Trump’s Treasury Secretary says we are going into a recession. Thanks, Trump.
Certainly sounds like the decision will be based on statutory interpretation.
Just yesterday the anti-Trump arguments here -- at least to start -- were rooted on constitutional separation of powers. Today it's you Republicans will rue the day!
Why? Maybe because the excerpt reads like the (female?) justices were all dancing ("the worm"?) on the head of the pin as AG Sauer continually boxed them in.
JUSTICE SOTOMAYOR: Under a predecessor, and we have all the limitations of that. All right. Number two, whenever Congress intends to -- to permit taxing and regulate, it uses the word "tax and regulate" in every other statute, correct?
GENERAL SAUER: I don't concede that. I mean, two very visible examples, again, are TWEA and Section 122 --
JUSTICE SOTOMAYOR: We're -- we're back to the -- the question here. Okay. Thank you, counsel.
CHIEF JUSTICE ROBERTS: Who are you?
"Certainly sounds like the decision will be based on statutory interpretation."
Yes, but it will be Youngstowned.
TL,DR.
I guess all that is why we pay 'em the big bucks.
The distinction between the power to regulate and the power to tax was central to the American Revolution. If Trump’s tairiffs are upheld, we’ll have to apologize to our mother country for ever complaining of taxation without representation.
calling “regulation” a tax
=================
what effect on CommerceClause?
Republicans are trapped in the Trump Clown Car for the next three years. Hahahahahahaha!
Other countries now have no incentive to negotiate with him.
In other words, will have no incentive to negotiate with America. And you are pleased with that.
No, I am not happy that Trump has fucked the United States.
“JUSTICE SOTOMAYOR: All right. And despite the fact that no other president in the history of IEEPA has ever used -- has ever imported -- used tariffs as a power under IEEPA?”
The same question I asked in yesterday’s SC thread.
A tariff is not a tax. When there is a sales tax, if you buy something - anything - you pay the tax. With a tariff, the companies being tariffed will pass along as much of that tariff as the market will bear, but US consumers may opt to buy someone else's product based on price, US businesses may opt to produce competing goods because it becomes more cost-viable, etc. It isn't like Chinese companies can simply raise prices by 100% when the tariff is imposed and US consumers are then forced to pay the 100%.
I just hear Senator Claghorn or Foghorn Leghorn talking about too much nullificatin' and regulagatin' goin' on ...
"Yes, but it will be Youngstowned."
Maybe, but to what duration, degree and potential remedy does that mean? Ceasing the assets of specific domestic steel companies (without citing any statutory authority?) in Youngstown seems a far cry from the present case, which does have statutory and separation of powers bases in the role of the executive.
Justice Black wrote for the majority opinion... Black took, as he often did, an absolutist view by holding that the President had no power to act except in those cases that are expressly or implicitly authorized by the Constitution or an Act of Congress. Black wrote that the President's role in law-making is solely to recommend or veto laws. He cannot overtake Congress's role to create new laws...
Jackson's [concurring] opinion took a similarly flexible approach to the issue by eschewing any fixed boundaries between the powers of Congress and the President. His framework would influence future Supreme Court cases on the president's powers and the relation between Congress and the presidency. He divided Presidential authority towards Congress into three categories (in descending order of legitimacy):
"When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.”
When the President acts "in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain.”
"When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb." The Court can sustain his actions “only by disabling the Congress from acting upon the subject.” A grant of such power would be "conclusive and preclusive."
Supreme Court Justice Amy Coney Barrett noted during her Supreme Court confirmation hearings that the "familiar tripartite scheme" above has since been called "the accepted framework for evaluating executive action" by the Supreme Court.
I'm trying to visualize how these SCOTUS justices imagine negotiation of fairer trade agreements would proceed, if a President cannot threaten or implement higher tariffs to get partners to the table? Do we really imagine that Schumer and Jefferies would join the Republican Senate and House leadership in negotiating such agreements? Or give the President authority to do so? As with Trump's first term, and with the refusal to eliminate the filibuster (by the way where is the Constitutional provision for that?), the "checks and balances" always means the same thing: the Neo-liberal regime of open borders, free trade hollowing out of the deplorable middle class wins by default. Funny how it always works that way.
“JUSTICE SOTOMAYOR: All right. And despite the fact that no other president in the history of IEEPA has ever used -- has ever imported -- used tariffs as a power under IEEPA?”
Before Trump, people thought that the use of tariffs would hurt our economy. Trump has smashed that theory.
FYI, Trump’s Treasury Secretary says we are going into a recession
Bessent said I think we are in good shape, but I think that there are sectors of the economy that are in recession, referring specifically to housing, caused by a too tight Fed according to him. Just for reference GDPNow is currently 4.0 percent. Thanks Trump...
Trump destroyed his own narrative when he lumped additional tariffs on Canada (an advertisement hurt his feelings) and Brazil (to try and subvert the trial of the Bolsonaro for insurrection). Not to mention the tariffs on Penguins in Greenland.
Neither of these are a "national emergency" and yet he felt the power to do it anyway.
(And don’t forget the lack of traiffs on Russia and N Korea)
Yah I'm skeptical of that 'no President in the history of' stuff. There are always firsts.
Yes, but it will be Youngstowned.
?
Excellent comment by robother.
...as we've seen, even a Chief Justice can completely lose his composure when Trump's involved so there's really no telling. The handicapping doesn't figure on tis one. Pass...
robother said...
I'm trying to visualize how these SCOTUS justices imagine negotiation of fairer trade agreements would proceed, if a President cannot threaten or implement higher tariffs to get partners to the table? Do we really imagine that Schumer and Jefferies would join the Republican Senate and House leadership in negotiating such agreements? Or give the President authority to do so? As with Trump's first term, and with the refusal to eliminate the filibuster (by the way where is the Constitutional provision for that?), the "checks and balances" always means the same thing: the Neo-liberal regime of open borders, free trade hollowing out of the deplorable middle class wins by default. Funny how it always works that way.
11/6/25, 9:41 AM
————————————————
The only thing SCOTUS should be concerned about is the law.
If the Court rules against Trump the repercussions are the fault of Trump because he decided to try to skirt the law.
It should be noted that the very idea that taxes can be levied on the whims of one man goes against the principles behind the founding.
I “William Roper: “So, now you give the Devil the benefit of law!”
Sir Thomas More: “Yes! What would you do? Cut a great road through the law to get after the Devil?”
William Roper: “Yes, I'd cut down every law in England to do that!”
Sir Thomas More: “Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!”
Robert Bolt
@robother, Jefferson Davis once said, "If the Confederacy fails, there should be written on its tombstone: 'Died Of A Theory'."
When this country finally collapses due to confounding unpragmatism in the face of myopic semantics regarding its very own founding language, there should be written on its tombstone: "Died Of Syntax". Except it should be written in Mandarin: "死于语法"
Hugh Hewitt does not think the tariffs will be reversed but that the order will be remanded to a lower court to apply whatever ruling SCOTUS agrees on. Clarifying the tariff powers does not necessarily mean undoing what is done.
Summarized by Co Pilot
"Supreme Court Youngstown Doctrine
The Youngstown Doctrine, as articulated in the landmark Supreme Court case Youngstown Sheet & Tube Co. v. Sawyer, limits the president's power to seize private property without express authorization from Congress. The case arose during the Korean War when President Harry S. Truman seized steel mills to prevent labor strikes that could disrupt defense production. The Supreme Court ruled that the president lacked the authority to seize private property in the absence of either specifically enumerated authority under Article Two of the Constitution or statutory authority conferred on him by Congress. This ruling established a precedent that has been cited by the Supreme Court in various cases, emphasizing the importance of legislative authorization for executive actions that involve the seizure of private property."
Doing a little more reading, it appears the Truman administration attempted to defend the action as being inherently in the Constitutional authority of the President, citing numerous seizures of private property by previous Presidents. There were, however, several statutes that could have been used such as the recently enacted Taft-Hartley Act that allowed the President to force a 'cooling off' period to end a work stoppage or possibly the Defense Production Act since this occurred during the Korean War but the Truman administration had political reasons for not using these, especially since Truman had vetoed the Taft-Hartley Act (which was overridden) and viewed the steel companies rather than the unions as the source of the impasse.
I'm guessing but I supposed the reference to 'Youngstowed' means that the Court will find that Congress did not delegate the specific authority to impose tariffs to the President.
I only listened to some of it, but I read the whole transcript. Never read the tea leaves based on oral argument, but I'm not as skeptical as the so-called pundits. I think Trump may still win this one.
But one of the things I struggle with sometimes is waiting impatiently for the counsel to answer a justice's question...
Three times Gorsuch asked the counsel (as he was looking for some guardrails/limitations) why he should go along with such a significant delegation of power from congress to the president, since (as Gorsuch put it) Congress couldn't have meant to give such broad power because "as a practical matter" they can never get the power back. They can, of course, just change the law/repeal the act.
But Gorsuch was suggesting that its nearly impossible because the president would never sign that law, so congress would need to override the veto and that would be really difficult (nay impossible) in this day and age.
Counsel struggled to answer, but of course the answer is easy. Congress knows how easy/hard it is to change the law (and what vote %s are needed to override a veto). Don't treat them like children, don't overturn a law they chose pass because you think it would be "hard" for them (or the next congress) to overturn it. That analysis is already baked in by the congress that passed the law. They don't need the supreme court to save them from themselves.
Scalia would have simply said, "congress knew what it would take to repeal this law and chose to go forward anyway." Not our job (or within our power) to say otherwise, or "fix" it for them (for those who think its broken).
One of the three elements that Chief Justice Roberts used to determine that the Obamacare "shared responsibility" payments were a tax rather than a fine was that the money was collected by the IRS.
“The same question I asked in yesterday’s SC thread.”
Thus solidifying your status as a midwit.
It depends on what the definition of is is.
In this oral argument, as in so many other SCOTUS constitutional cases over my lifetime, it is difficult to ignore the im;icit Neo-liberal bias. Where was the exquisite concern for Presidential power when the Clinton Administration overrode Defense Dept. concerns and authorized the purchase by China of the only American manufacturer of rare earth magnets in 1997? Or when the Biden Administration effectively opened the US borders for 3 and a half years with executive orders? But of course when the Trump Administration tries to remove any one of the 20 million illegals, federal judges rush to declare the minute each one touched US soil, they have full due process rights to 20 years of hearings and appeals. Or how for 54 years, the 1964 Civil Rights Act was interpreted to effectively repeal Constitutional rights to equal protection of laws and free association for white males.
In these proceedings, SCOTUS is quite concerned about the practicality of Congress getting its delegated power back in the face of the President's (Constitutional) veto power, but absolutely unconcerned about the practicality of President Trump's ability to eliminate our supply line vulnerability in the face of a Democrat filibuster (shutting down the whole government over far less).
“Before Trump, people thought that the use of tariffs would hurt our economy. Trump has smashed that theory.”
This is super helpful in understanding the mind of the true believer MAGAt .
American farmers are getting fucked by tariffs
American consumers are getting fucked by tariffs
American exports are getting fucked by tariffs
American tourism is getting fucked by tariffs
American job market is getting fucked by tariffs
Despite all evidence pointing to the destructive effects, the cult marches on.
Joe Bar said...
I really wish we would stop referring to Attorneys General as "General." IIRC, that was not the intent of the term, and these folks have no military rank.
11/6/25, 8:26 AM
I agree. It seems ignorant.
If we're going to do that, we need to start addressing criminal lawyers as "criminal", family lawyers as "fam", and so on.
But enough about bruce cutler or that atty for the blind sheikh
I think midwit is too charitable
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