A couple blog posts to recommend this week:
Jack Goldsmith gives his views on the tariff case, agreeing with Judge Taranto’s dissent and also discussing the role of the major questions doctrine. Though I don’t think it is entirely clear how either version of the doctrine applies to IEEPA (or to the pre-existing authorities IEEPA was intended to narrow), I think it’s possible that this case may lead to noticeably different paths for the Gorsuch view of the doctrine (as a substantive canon of constitutional avoidance) and the Barrett view of the doctrine (as an interpretive canon).
Jonathan Adler has a post questioning the allegations that the Supreme Court is adjudicating the interim relief docket in a partisan fashion — something I aspire to write more about soon. Here are two key paragraphs:
It seems to me rather clear that the primary reason the Trump Administration has seen such success on the interim docket is because it has been very selective in deciding which cases to bring to the justices. The Trump Administration has aggressively pursued Supreme Court relief in cases where district courts lacked jurisdiction or provided overbroad or improper relief, but has acquiesced to the normal pace of litigation and appeals where the Administration's legal position is weak. It is no accident no case involving the Administration's attacks on law firms or universities has yet to reach the Court.
One can see how the Trump Administration has been selective and strategic just by looking at the numbers. According to Just Security there have been approximately 400 suits filed against the Trump Administration, over 125 of which have resulted in injunctions or other judicial orders blocking or staying the Administration action. So while the Trump Administration may have prevailed in 84 percent (16 of 19) applications, it remains the case that it has obtained Supreme Court relief in less than 15 percent of the cases in which its actions have been blocked or stalled by lower courts.
I discussed Justice Barrett and her book in a post last Friday (which Substack tells me was the 100th post on this blog — thanks for reading!).
