Said Sarah Isgur at the end of the Advisory Opinions podcast yesterday, summing up after moderating a high-quality conversation about the oral argument in the tariffs case.
November 6, 2025
"After hearing all of you talk about this, I'm even less sure of how this case will come out than I went in."
"I felt far more confident before I heard the oral arguments. I felt less confident, but still, you know, I was where I was going into this conversation and now I'm leaving, throwing my hands in the air. I do think, however, in that big picture part that when you think about Chevron doctrine... that the executive branch agencies are going to have less power to define their own scope of power.... And at the same time, I think they will give the President more power over his personnel that you don't want sort of complete vertical power in an executive branch that then also has a lot of horizontal power to get extra legislative power.... So, Mr. President, you have complete control of your executive branch and also we've taken away some of the powers of the executive branch — I think would be the best outcome of this term...."
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58 comments:
Shouldn’t Isgur try to make sure she’s sober before she speaks?
I see a David French tag which is the avoid like the plague tag, especially when there's any economics involved...
The idea that the President can completely block importation of goods from country X, but he can't impose a tariff to slow down the importation of goods from country X, is just so insanely stupid, but required by the the "no, Trump can't unilaterally impose tariffs" position, that I dont' see any honest Justice taking that position.
Which, sadly, says nothing abut the outcome.
...yes and it all seems to hings on this raising revenue idea, therefore a tax. An embargo can raise revenue, a quota can raise revenue- a tax! a tax! Stop him!
I do agree that the proper outcome of this session of the Court is "the President is in complete charge of the Executive branch, but the power of the Executive Branch is going to be dialed back to what is actually Constitutionally permissible" (which is not what Sarah said, because Sarah's a leftist who doesn't give a shit about what's Constitutionally permissible).
But SCOTUS is going to have to either completely gut the law at issue, or else let Trump impose tariffs. Because "teh greater power includes the lesser", so the power to ban outright has to include the lesser power to tariff. And the fact that Trump has used the tariffs to squeeze out negotiated compromises in international negotiations makes it Constitutionally reasonable that the President should have that power.
"The idea that the President can completely block importation of goods from country X, but he can't impose a tariff to slow down the importation of goods from country X, is just so insanely stupid, but required by the "no, Trump can't unilaterally impose tariffs" position, that I don't' see any honest Justice taking that position."
It actually makes perfect sense. These are *emergency* powers. E-M-E-R-G-E-N-C-Y. That means it makes sense to "block" the bullets or fentanyl or "bad things" from entering the U.S. but it doesn't necessarily follow that we should just let "some" unknow tax the fentanyl. How does taxing address the E-M-E-R-G-E-N-C-Y. How does the tariff "protect" me the way that blocking shipments from rogue states protects me?
I agree with the idea that the president should have control over the executive branch in all or nearly all cases. I also agree that Congress should refrain from giving the executive branch so much power. A smaller, more streamlined executive with the president directly answerable for all of its actions would be a good thing.
That said, it is also true that the Congress itself has assumed far, far too much power. This is a direct result of a hundred-plus years of Supreme Court decisions allowing Congress to exceed its constitutional powers. Chiefly but not exclusively through the abuse of the Commerce clause.
So by all means, make the executive stay in his lane. It is likewise essential that Congress stays in its lane. This will happen only if the Supreme Court stays in its lane, which is adhering to the Constitution.
I'm going to guess the court will uphold Trump's authority under the national emergency legislation, arguing that Congress can amend the law if it chooses. The court will be reluctant to interfere on an issue so central to Trump's ongoing conduct of foreign and domestic policy.
Greg The Class Traitor said...
The idea that the President can completely block importation of goods from country X, but he can't impose a tariff to slow down the importation of goods from country X, is just so insanely stupid, but required by the the "no, Trump can't unilaterally impose tariffs" position, that I dont' see any honest Justice taking that position.
Which, sadly, says nothing abut the outcome.
11/6/25, 10:00 AM
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So you side with the British position with regard to the enacting of the Stamp Act of 1765?
The power to tax belongs to Congress.
So she "gets it."
Isgur’s comment is not up to her usual high standard of articulation, but she appears to be preparing us for a seismic shift. Trump’s foreign policy has been based in large part on tariffs. The overriding question is: Will the Republican pussies in Congress blow off the filibuster and delegate the tariff power - if constitutionally possible?
Tariffs are not a tax. We do charge excise taxes in some cases.
Cut the rule-making authority out of the agencies and give it back to Congress, which can have its own rule-making staff. Cut the judicial authority out of the agencies and give it to the Supreme Court, which will oversee the legions of administrative law judges. Then, all the president has to do is to faithfully execute the laws.
Luke Lea said...
I'm going to guess the court will uphold Trump's authority under the national emergency legislation, arguing that Congress can amend the law if it chooses. The court will be reluctant to interfere on an issue so central to Trump's ongoing conduct of foreign and domestic policy.
This is what judges would do.
We have 2 judges on the Supreme Court along with 7 robed philosopher lords who decide what is allowed and what is not allowed because they believe they are appointed gods with power over all things.
Maybe we get the Court reinstating the non-delegation doctrine, and gutting the admin state on a tariff issue.
What this comes down to is that Globalist Oligarchs are paying taxes for the first time in history and this cannot be allowed.
The constitution says Americans must fully fund the government and that the government must give that money to people all over the world and we can’t tax foreign oligarchs.
It is right under the Obamacare exemption in the taxation article 42 of the constitution.
in 3 lane Constitution who in which lane?
"... you don't want sort of complete vertical power in an executive branch that then also has a lot of horizontal power ...".
Not if your name is Sarah Isgur, you don't.
D.D. Driver said...
It actually makes perfect sense. These are *emergency* powers. E-M-E-R-G-E-N-C-Y.
It only "makes perfect sense" if your'e the kind of moron who "thinks" that unelected and democratically unaccountable "judges" are the proper judges of "what is an emergency?" or "what is the best way to respond to an emergency?", rather than the elected President.
Because just because it's an "emergency" doesn't mean it's the ONLY thing happening. That sort of brainless "thought" is what led to the Covid lockdowns.
"It's an emergency", so we're going to inflict pain on them to make them stop, while inflicting less pain on Americans so we can afford the cost of inflicting the pain on them to make them stop.
This is something that requires judgement, and balancing costs. Which is why it's not the job of the judicial branch to decide what the right choices are
AMDG said...
So you side with the British position with regard to the enacting of the Stamp Act of 1765?
I side with the American position, which was "no taxation without representation".
In case you missed it, the law at issue was passed by American Representatives elected by the American people.
From what I read in Wikipedia in April, FDR imposed an emergency tariff on wool, citing the need for it for uniforms in the late 30s. Nixon imposed a 10% temporary tariff in '71 when he broke Bretton Woods. During or after Watergate, seeking to curtail prez power, Congress discovered FDR's tariffs were still in place, so they passed a law that made the Prez declare the emergency tariff annually. That's a pretty clear delegation of authority to me.
I'd like to see Trump send his trade deals and other EOs to Congress for up/down votes next year. Get everyone on the record before the 2026 or 2028 election.
Yes that's right, Achilles the billionaire globalist are paying taxes and then passing those costs down to the little peons who buy their trinkets and who need to suckle their sustenance in order to keep their heads above water.
You're as anti globalist hegemony as the 26 billionaires and wealthy families, including Bloomberg L.P. cofounder Michael Bloomberg, hedge fund manager Bill Ackman, Airbnb cofounder Joe Gebbia, and members of the Lauder family, heirs of the cosmetics company Estée Lauder, contributed at least $100,000 each to independent expenditure committees and super PACs that supported Andrew Cuomo and ran ads against Mamdani.
Most likely outcome is a middling ruling. Remand to district courts to litigate whether each individual tariff against a product and a country meets the legal requirement of an emergency. Perhaps with instruction that district courts most stay their injunction until the Court of Federal Appeals rules on their conclusion.
Theis has the virtue of not undercutting Trump's negations with other countries and is a win for Trump, as he will be out of office before anything is resolved against him.
DD Driver:
You're question begging. Some emergencies are not best responded to with an all or nothing response, but a graduated one. At least try to come up with an operational definition of "emergency."
Mike, sorry buddy, but tariffs are taxes. They were the principal source of federal revenue before the income tax. To get an idea of their importance, visit the old custom house in any port city. New York's is one of the finest buildings in the city.
By the time a ruling comes down I expect the tariffs will have served their purpose, which is sort of an "emergency" outcome. What the court decides to do with the money already collected will be interesting. Is that in their purview?
Tariffs are taxes on producers, which are only passed on to consumers in an arbitrage climate or monopolistic environment. They are also tools of transnational diplomacy and administration.
The president wields a pretty broad sword when it comes to foreign policy, but tariffs are taxes and it should be up to congress to decide what taxes it wants to levy. If Trump wants this negotiating power, he should have to ask congress for it.
The Republicans control congress, so, you know, just ask for it.
The simplest solution is to follow precedent and split the baby into her fetal components, cannibalize her profitable parts, and sequester her carbon pollutants with a "burden" determination and Pro-Choice religious ruling under the Twilight Amendment.
Trump should embargo the nations that play arbitrage games with labor, environmental, and monetary regulations. The state of emergency exists with precedents in opiate transmigration, illegal migration, etc. The sooner we go cold turkey on these formerly politically congruent constructs, the sooner decades of progress will be mitigated, and we will make America viable again.
If it is granted that the law under discussion does and has in the past included tariffs, then the only question is if Trump's declaration of an emergency fits the act passed by Congress. On reading the text, it seems to me that Congress granted broad authority to the executive to determine what an emergency is. This strongly resembles the use of the National Guard declarations of last month- I don't see where the courts have been granted the authority to determine what is and isn't an emergency- this was always under control of Congress. Again, if you want to attack this given the condition I stated at the beginning of this comment, you might have to argue that Congress can't delegate that kind of power to the executive- which is a tenuous argument to make.
I think one of the problems the opponents of Trump's policies in this regard is going to be the change made in 1977- that the executive must renew this emergency declaration every year which implies that he is making this argument to Congress itself and also implies that Congress and only Congress can undo it. What bothered me about Gorsuch's line of questioning was his insistence that Congress can only undo this by supermajority votes- this isn't really true since Congress has lots of power to rein in the executive branch that only require majority votes in both Houses.
This outcome is not surprising. The conservative interest groups and major donors leading this legal fight played a major role in helping to advance the careers of the Republican Justices. Their loyalty is to these major donors, not to Trump. On issues where the major donors and Trump don't come into conflict, they will tend to side with Trump. But when forced to decide between the major donors and Trump, they will side with the major donors.
Yeah i dont see how super majorities enter into it
So, AMDG, if another nation unilaterally imposes a new tariff on US made goods, the President is powerless to respond with an equal or greater tariff on that nation's goods, without literally an "Act of Congress". There's a reason that expression has become a synonym for the impossible. In case you hadn't noticed, over the last 25 years, Congress has become increasingly incapable of passing any legislation other than an Omnibus Budget bill, well into the budget year.
Yancy War said:
"What bothered me about Gorsuch's line of questioning was his insistence that Congress can only undo this by supermajority votes-"
What bothered me about that (as I said in the comments to the prior post) is that Gorsuch seems to be thinking that Congress is smart enough to make a choice to defer or give powers to the president, but simultaneously not smart enough to recognize that Congress MIGHT need a supermajority vote to rescind that action.
I wish the counsel would have simply replied "what difference does it make"? Congress is smart enough to know (when it enacts this) that a repeal could be vetoed and would require supermajority vote to override.
Don't think you need to "save" them because its 'too hard' to undo.
To paraphrase Instapundit, if it troubles you that Trump might have this kind of power, or that (insert next scary Dem President here) might have this power, then perhaps the answer is to scale back the power of the federal government overall.
I agree robother, and you can bet if SCOTUS overrules Trump, that is exactly what most of the world will do.
n.n said...
Tariffs are taxes on producers, which are only passed on to consumers in an arbitrage climate or monopolistic environment. They are also tools of transnational diplomacy and administration.
11/6/25, 11:51 AM
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Tariffs are not paid for by producers they are paid by importers.
robother said...
So, AMDG, if another nation unilaterally imposes a new tariff on US made goods, the President is powerless to respond with an equal or greater tariff on that nation's goods, without literally an "Act of Congress". There's a reason that expression has become a synonym for the impossible. In case you hadn't noticed, over the last 25 years, Congress has become increasingly incapable of passing any legislation other than an Omnibus Budget bill, well into the budget year.
11/6/25, 12:53 PM
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Exactly -
Article 1 - Section 8
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
The congress wrote that law now the legislative history is probably instructive
The 1974 law sets up section 301
AMDG said...
Tariffs are not paid for by producers they are paid by importers.
Producers are paid by importers, too.
And sometimes they get paid LESS by the importers because of the tariffs, which effectively means that the importer paid the tariff
If Joe Biden imposed these tariffs under the statute, would the Supreme Court rule the same way? I seem to recall a Supreme Court justice who performed logical backflips to support the proposition that Obamacare's penalty payment mandate was not a tax. That was a far clearer instance of taxation than tariffs.
"What bothered me about Gorsuch's line of questioning was his insistence that Congress can only undo this by supermajority votes-"
What bothers me is the notion that whatever the language of the statue, Congress must not have intended to delegate broad authority to the President. Congress may well have thought that, in an emergency, the President should have broad powers.
AMDG said...
Tariffs are not paid for by producers they are paid by importers.
Producers are paid by importers, too.
And sometimes they get paid LESS by the importers because of the tariffs, which effectively means that the importer paid the tariff
Ultimately, goods will be made, sold, and imported only if they can then be sold for a reasonable profit. Set a high enough tariff and no goods will be imported for sale, resulting in no revenue, thus not a tax. At a lower level, in the real world the cost of the tariff will be split between the manufacturer, the importer, and the consumer in difficult-to-predict ways - or the country on whom the tariff was imposed will change their policies to reduce or eliminate the tariff, which again will result in no revenues raised plus foreign policy changes, which is the purview of the executive branch.
Tariffs are paid by producers, not consumers, other than under exceptional circumstances.
Think Obamacares through shared responsibility ("tariffs" on the consumer), sustained through monopolistic and privileged extraction schemes.
That insurance executive was aborted because of Obamacares, but the assassin's target was off the mark and selective.
The viability of the Welfare Industrial Complex et al depend on redistributive change schemes and affordability through labor and environmental, regulatory arbitrage of outsourcing and insourcing games.
As someone mentioned, the argument of the statutory law depends on the definition of emergency. For one, with excess drug-induced deaths, [black] lives matter. China probably enjoys the irony of the modern opiate wars.
Knowing her affinity for '60s pop culture, I was expecting Ann to suggest that these tariffs are at The Outer Limits of executive authority -- "We control the horizontal. We control the vertical."
Where does the Supreme Court derive the authority to tailor an "outcome" which balances the "vertical" and "horizontal" power of the Executive? Either Congress can give the Executive the power, limited as Congress sees fit, or it can't. Ms. Isgur wants the Supreme Court to legislate what she views as a nice balance. That ain't the Court's job.
If tariffs are taxes, what are "duties, imposts and excises?" And if they are the same thing, why did the drafters of the Constitution use four different words?
I know next to nothing about the law, but it would seem like giving authority to Congress would be completely unworkable. It takes Congress years to name a post office. Sometimes you need an executive to do executive things.
Jersey--Congress clearly has the authority under the Constitution. Very early on they realized precisely what you have stated--that Congress isn't really very good at this sort of thing. So they quite explicitly delegated their Constitutional authority to the Executive, with very little limitation.
How the Court has any authority to decide otherwise is a mystery to me.
Tarrifs are coincident to revenue while neutralizing arbitrage that is an effective tax on domestic producers, where arbitrage is an anticompetitive scheme that undermine market dynamics of price assessment, product distribution, and regulatory equity.
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