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Margot Cleveland

@ProfMJCleveland

Nov 5

https://twitter.com/ProfMJCleveland/status/1986087718447952001

THREAD on challenge to tariff: Opening this is tax. Common sense: Implausible Congress meant to let President to overhaul tariff. It is a one-way ratchet. It is a "sanction" statute, not a tariff statute.
1/

https://twitter.com/ProfMJCleveland/status/1986087718447952001

2/ Attorney: Verbs deal with embargoes but nothing about raising revenue. Many statute tariffs: Have many limits, this statute doesn't. Statutes say "tariffs" or equivalent.
Thomas: Going back to non-delegation point if, wouldn't that apply to embargoes.
Attorney: No. We aren't saying you can't delegate tariff you need to give "intelligent principles".
Justice Roberts: Foreign facing tax, but isn't that core power of Article II...and quite effective in achieving certain objectives.
Attorney: Think of this as Article I and Article II. Tariffs have foreign policy implications but founders gave that in Article I section 8 to Congress.
Justice Kavanaugh: If tariff were in the statute would that be acceptable and constitutionally permissible.
Attorney: Congress grant that authority to Presidents.
ME: WOW. He doesn't believe in non-delegation.
Justice Kavanaugh: What does Nixon stand for? Did Congress aware of that? Nixon announced in nationwide prime time speech, it wasn't a little piece of paper. Why didn't Congress change language?
Attorney: Nixon didn't rely on that statute and Nixon disagreed statute applied. The Circuit Court of Appeals decision doesn't change plain meaning. And even if Congress knew about it that doesn't help because case didn't say "unlimited authority," and use another statute. This president has torn up entire tariff architecture that Congress created.

3/ Justice Alito (?): Start with "regulate importation" would you agree that includes fees.
Attorney: NO.
Alito: "Regulate admission to park" can that include fee.
Attorney: Not helpful answer. Tries to distinguish from tariffs.
Alito: Are tariffs always revenue raising? What if imposed tariff to take effect in 90 days and agreement is reached is that a tax?
Attorney: This is obviously revenue raising. Taxation is different.
Alito: You cite many different provisions, what if imposed in an emergency?
Attorney: You need more precisions. Never has Congress added a tariff authority.

Read 14 tweets

Margot Cleveland

@ProfMJCleveland

Nov 5

THREAD: SCOTUS Tariff argument live summary. 1/

2/ John Sauer opens with summary of why Trump has power, framing as foreign affairs.
Thomas: Ask why major question doctrine doesn't apply.
Sauer: In foreign affair context, you expect Congress to give major powers, since he has Article 2 power.
Justice Kagan (I think): What kind of Article 2 powers are you relying on.
Sauer: President has broad authority in foreign affairs.

3/ Sauer: Article 2 power PLUS sweeping delegation by Congress and we are giving you Article 1. We aren't saying it is power to tax, but to regulate.
Justice Alito (?): Damsin Moore (spelling). We said very narrow, we confined to very questions in that yet you keep citing. Different provision of federal statute.
Sauer: We don't dispute narrow opinion but say it addressed same principles that apply here.
Justice Kagan (?): I just don't understand this argument. You are saying this isn't tax but it is a tax. You are saying this is regulatory but I don't understand this argument. Or that foreign powers or even an emergency say it can do away with major questions doctrine.
Sauer: Court has never applied in foreign affair.
Justice Kagan: Could have declared a national emergency in global warning and then forgiven student loans.
Sauer: gets cut off again.
Justice Kagan: Why does Congress always use tariff and regulate but not here.
Sauer: Cites another case but cut off.
Justice Kagan: cuts off again. AUGH. I think she has a good point but can't follow because she cuts off Sauer.

Read 15 tweets