In a "mic drop" moment this week, a right-wing justice's comment might have killed President Donald Trump's Supreme Court hopes.
Justice Neil Gorsuch’s closing remarks and questioning Wednesday in the case challenging Trump's tariffs "was damaging for the administration's case," according to a New York Times opinion conversation published Thursday between writer Emily Bazelon and columnist David French.
Gorsuch’s comments indicate he suggests the president could be crossing a boundary if he "can declare an emergency at a whim," Bazelon said.
“It does seem to me — tell me if I’m wrong — that a really key part of the context here is the constitutional assignment of the taxing power to Congress,” Gorsuch said. “The power to reach into the pockets of the American people is just different, and it has been different since the founding.”
And the high court's conservative justice pointed out why this is important and how the president's moves could leave Congress "sitting on the sidelines."
"In other words, he’s suggesting that Trump is usurping one of the most important functions that the founders gave to Congress to ensure that the president would not be able to act like a king. That’s the crux of why Trump’s claim of authority here is such a blow to the constitutional separation of powers. Tariffs, as some of the justices pointed out, are taxes by another name. They raise revenue by imposing costs that companies can eat or pass on to consumers," Bazelon said.
French explains why this is problematic and how Gorsuch is outlining how he views presidential emergency powers.
"That Gorsuch quote is key — it felt to me like he was summarizing his own theory of the case, a theory rooted in the founding ideas of the country. Taxation is a core enumerated power of Congress, and the idea that it delegated its core enumerated authority through a broad, vague statute governing international economic emergencies seems to strike Justice Gorsuch as implausible," French said.
Gorsuch also included another question in his oral argument and how it could pose what the justice referred to as a “one-way ratchet" that gives more power to the president and less power to the legislature.
"Justice Gorsuch asked the solicitor general about the 'retrieval problem' — the difficulty of taking power back from the president. It takes only a bare majority of Congress (with presidential assent) to delegate the power, but a supermajority to retrieve the power — unless a president actually wants to surrender the power Congress has given him or her," French said.