The Supreme Court's right-wing justices will be "squirming" on Wednesday as they hear a closely-watched case that could decide the future of President Donald Trump's tariff agenda, and the separation of powers between Congress and the White House generally, Pulitzer Prize-winning justice reporter Linda Greenhouse wrote for The New York Times on Tuesday.
"Aside from the many billions of dollars at stake, the case, Learning Resources Inc. v. Trump, has important implications for presidential power and for the relationship between the executive and legislative branches of the federal government," wrote Greenhouse.
What will make it truly "fun" to watch, though, she argued, is "watching the conservative justices struggle to reconcile their deference to the president — abundantly apparent in recent months from their multiple unsigned and unexplained orders giving him nearly everything he wanted — with the method they embrace in other contexts for interpreting statutes."
"Inconveniently for these justices, deference and law in this case are quite clearly pulling in opposite directions, and the conservatives may have to twist themselves into knots in the effort to reconcile them," she wrote.
A straight "originalist" analysis of the sort Justice Neil Gorsuch loves to use, wrote Greenhouse, directly works against Trump: "For ... 150 years, in more than 260 laws, resolutions and proclamations, Congress kept its tariff authority to itself," and the law Trump cites to pass his tariffs unilaterally, the International Emergency Economic Powers Act (IEEPA), doesn't even contain the word "tariff." And the "major questions doctrine" — a favorite of the conservatives — would lean against authorizing any large policy that doesn't have congressional involvement.
"Even if the justices who invented that doctrine are somehow able to write their way around it, they may find another of their favored doctrines standing in the way of tariff rescue. Ninety years ago, the court invoked something called the nondelegation doctrine to invalidate parts of President Franklin D. Roosevelt’s New Deal," wrote Greenhouse. The nondelegation doctrine requires there be some sort of clear limit on executive power for Congress to even have the authority to delegate its lawmaking to the executive, and Trump's legal team hasn't articulated any such limit they believe IEEPA has.
"It’s such a simple solution — one that an originalist, textualist justice who embraces the major questions and nondelegation doctrines might be relieved, even eager to grasp ... On the other side of the case sits a president whose brief informs the justices that his tariffs are not only 'country-saving' but fully supported by law," wrote Greenhouse. "What a dilemma. What a show. Could be wild."
