Thomas Berry
@thomasberry.bsky.social
Director, Robert A. Levy Center for Constitutional Studies, Cato Institute. Editor in Chief, Cato Supreme Court Review.
https://www.cato.org/people/thomas-berry
https://www.cato.org/people/thomas-berry
The vast majority of the argument was devoted to the question whether the statute authorizes tariffs *at all.* Less discussed was whether these particular tariffs are justified as necessary to "deal with" a genuine emergency, given that trade deficits have existed for 50 years.
November 5, 2025 at 10:28 PM
The vast majority of the argument was devoted to the question whether the statute authorizes tariffs *at all.* Less discussed was whether these particular tariffs are justified as necessary to "deal with" a genuine emergency, given that trade deficits have existed for 50 years.
One thing I've never seen before: during seriatim questions when only one justice is allowed to speak at a time, Sotomayor asked Kavanaugh to nod yes if he was planning to ask about an issue, so she wouldn't have to. He did, so she passed.
November 5, 2025 at 10:28 PM
One thing I've never seen before: during seriatim questions when only one justice is allowed to speak at a time, Sotomayor asked Kavanaugh to nod yes if he was planning to ask about an issue, so she wouldn't have to. He did, so she passed.
Scott Bessent, Howard Lutnick, and Jamieson Greer were sitting right behind me and kept poker faces throughout (I glanced back when Roberts pressed the SG on who pays for tariffs).
November 5, 2025 at 10:28 PM
Scott Bessent, Howard Lutnick, and Jamieson Greer were sitting right behind me and kept poker faces throughout (I glanced back when Roberts pressed the SG on who pays for tariffs).
Kavanaugh focused heavily on precedents that may or may not have been on the minds of members of Congress when the statute at issue was drafted, and how much weight the Court should give those precedents. Roberts pressed the SG on whether the major questions doctrine applies.
November 5, 2025 at 10:28 PM
Kavanaugh focused heavily on precedents that may or may not have been on the minds of members of Congress when the statute at issue was drafted, and how much weight the Court should give those precedents. Roberts pressed the SG on whether the major questions doctrine applies.
Gorsuch focused on the constitutional concerns with interpreting the law at issue to give unilateral power to the president with no practical means of congressional veto. Barrett focused more on the linguistic meaning of "regulate" in the statute and whether it can cover tariffs.
November 5, 2025 at 10:28 PM
Gorsuch focused on the constitutional concerns with interpreting the law at issue to give unilateral power to the president with no practical means of congressional veto. Barrett focused more on the linguistic meaning of "regulate" in the statute and whether it can cover tariffs.
I think that's right, they could. Ultimately the point of the FVRA delegation bar is to make it a pain for the gov to evade FVRA, and forcing gov to both think about and actually affirmatively withhold some power of a US attorney at least accomplishes that function of making it more of a pain.
October 21, 2025 at 2:50 PM
I think that's right, they could. Ultimately the point of the FVRA delegation bar is to make it a pain for the gov to evade FVRA, and forcing gov to both think about and actually affirmatively withhold some power of a US attorney at least accomplishes that function of making it more of a pain.
The court noted that Habba's actions might be ratifiable (they weren't exclusive duties, so the ratification bar didn't apply), but the government hadn't tried to ratify them. If the appellate court upholds this reading, it would close the biggest loophole in the Vacancies Act.
August 22, 2025 at 3:42 PM
The court noted that Habba's actions might be ratifiable (they weren't exclusive duties, so the ratification bar didn't apply), but the government hadn't tried to ratify them. If the appellate court upholds this reading, it would close the biggest loophole in the Vacancies Act.