In this episode of Unwritten Law, NCLA Senior Litigation Counsel John Vecchione and NCLA President Mark Chenoweth are joined by Andy Morris to discuss the Supreme Court’s 6–3 decision rejecting the claim that the President has unilateral authority to impose, raise, or lower tariffs under the International Emergency Economic Powers Act (IEEPA).

The conversation unpacks Chief Justice Roberts’s majority opinion, which relies on careful textual analysis to reaffirm that tariff authority belongs to Congress—not the Executive. John, Mark, and Andy explain why the statute’s language does not authorize revenue-raising measures, how the Constitution’s prohibition on export taxes reinforces that conclusion, and why decades of practice confirm that “regulating importation” does not mean imposing tariffs.

They also examine the dissents, including Justice Kavanaugh’s reliance on prior cases like Algonquin, the role of the Major Questions Doctrine, and why emergency powers do not justify bypassing Congress’s exclusive taxing authority. The episode closes with a broader discussion of separation of powers, the dangers of discretionary tariff regimes, and why this decision represents a major win for constitutional limits on executive power.

John Vecchione: Welcome to Unwritten Law. John Vecchione here with Mark Chenoweth, and we’re joined by Andy Morris and Victory.

Mark Chenoweth: Good morning.

John Vecchione: We’re here to discuss the Learning Resources case, which is the tariff case, and which we’re very happy that the Supreme Court came out in a six-three decision saying that the IEEPA tariffs did not give the president unilateral power to raise tariffs, lower tariffs, do whatever he wants to on tariffs on any country in the world whenever he wanted, for any reason he wanted. And the Supreme Court slapped that down pretty hard. And Andy, I was struck that Chief Judge Roberts wrote 21 pages and that was it, after all the forests that have been destroyed over this matter.

Andy Morris: Yes, well –

Mark Chenoweth: Destroyed, but not imported.

John Vecchione: Yes.

Mark Chenoweth: Yeah.

Andy Morris: Well, exactly, good morning, John, and it is satisfying to see, and I have to give you credit for seeing the tariff issue as a threat on the horizon very early, and it got closer and closer, and was indeed a threat. So, we’ve been present at the creation and it’s been a long road, and that makes this 21-page opinion particularly satisfying, and interesting to us. The opinion much commented on by now is interesting. It’s classic Chief Justice Roberts carpentry, setting out the facts in a very carefully selected, and persuasive way without hitting you over the head with them and walking you through the legal technique, and textualist interpretation.

What’s interesting to me, having slogged through this from the start, is what’s not in there, and what could have gone wrong. As in many cases on appeal and at trial, once it’s over, those things don’t seem like such a big deal, but they were serious threats along the way. And we don’t have time to go through them today, but there are things such as the Yoshida opinion, the effort by this administration – as every president does – to turn the case into a foreign affairs case. The argument that regulation encompasses tariffs, and therefore –

Mark Chenoweth: Right, regulation means tax.

Andy Morris: Yes.

John Vecchione: Regulation of importation.

Mark Chenoweth: Yeah.

Andy Morris: And therefore, put the very different gloss on the constitution. So, there’s a number of ways this thing could have gone awry, that we could have gotten into the ditch. It’s a little bit like the Pilgrim’s Progress when Christian was almost getting knocked off the road all the time, and getting back on the road, and he gets to the heavenly city here. We finally got there, but there are a lot problems along the way that you could overlook when you just look at the opinion.

John Vecchione: And I have to say, he pushed aside Yoshida which is the case where basically the federal circuit had come out that way, not the Supreme Court. But everyone said, “These Nixon tariffs under this previous statute were allowed for four months, so all this can be allowed.”

Andy Morris: Right.

John Vecchione: And Yoshida barely came up. Kavanaugh uses Algonquin. Algonquin was a case where the statute said, “adjust tariffs.”

Andy Morris: Adjust importation.

John Vecchione: Adjust importation, right.

Mark Chenoweth: And it was actually a Supreme Court case.

Andy Morris: Right, yeah.

John Vecchione: And it was a Supreme Court case, and we were very nervous about that, but the only person to really grasp onto that was Kavanaugh and the three dissenters, and one of the things that –

Mark Chenoweth: Why does that sound like Goldilocks and the Three Bears?

John Vecchione: Yes, exactly. And so, when you look at this opinion, the key points I think for interpretation of statutes in his court is A). they didn’t use any of the normal words, “tariffs,” or “duties” in the statutes, and that was important, and I always thought that was important.

Andy Morris: Yes, that we had focused on, yes, right. Straightforward stuff.

John Vecchione: And then then these second thing that is kind of the dog that didn’t bark, is the Chadha, but the fact that Congress had originally put in a legislative veto, and those aren’t allowed anymore. And the guy who –

Mark Chenoweth: In IEEPA, you mean.

John Vecchione: In IEEPA, it was in IEEPA, but they’re not allowed anymore because of Chadha.

Mark Chenoweth: Right.

John Vecchione: And Gorsuch is the one who prints – this one-way ratchet really disturbed Gorsuch, and he said, “Look, they have to have super majorities.” And what Kavanaugh said – and by the way, on this show, if this is your first time on this show, I am the defender of Kavanaugh, and Mr. Chenoweth is his not-so-friendly detractor. And so, here it is –

Mark Chenoweth: I’m frequently disappointed, John.

John Vecchione: Yes, yes, frequently disappointed, and Kavanaugh says that that doesn’t matter. Congress has so much power over the purse that the fact that this whole idea that you need super majorities to check the president is not a real concern. That was the worst part of his dissent, it absolutely drove me over the top. I’m like, “What country does he live in?”

Mark Chenoweth: One where he wants executive power.

John Vecchione: On foreign policy, certainly.

Andy Morris: That is a great point, that is a concern that came up a lot at the argument, as you know.

John Vecchione: Right, and I think, and so, in this, so they struck it down, six three, but the Major Questions came up. There’s so much to talk about here, but – go ahead, go ahead.

Mark Chenoweth: I was gonna say, can we, let’s stick with Roberts for a second.

John Vecchione: Yes, go ahead.

Mark Chenoweth: And some of the things in his opinion, then we can move to Major Questions and the dissents and whatever else.

John Vecchione: Yeah, so go ahead.

Andy Morrie: Yeah.

Mark Chenoweth: But I wanted to say two things about Chief Justice Roberts. Majority opinion first, I was struck by the lack of inflammatory rhetoric in the opinion.

John Vecchione: You can’t have everything.

Mark Chenoweth: Well, I think that’s a good thing.

John Vecchione: Yes.

Mark Chenoweth: And there have been so many district judge opinions that have been getting ink so far –

Andy Morris: That’s a great point, yeah.

Mark Chenoweth: Calendar year, because they are really unjudicial in the tone and temperament of the opinion writing. I think it’s great that Chief Justice Roberts in the most important case that we’ve seen in quite a while doesn’t adopt that same sort of over-the-top rhetoric.

Andy Morris: That’s great.

Mark Chenoweth: And I think that what the president did here was a power grab that had not justification, and you could have imagined an opinion that was written with a lot of inflammatory rhetoric.

Andy Morris: That’s a great point, yeah, absolutely.

Mark Chenoweth: But he doesn’t see the need to do that, and I’m glad. I think that’s helpful for the body politic. The other thing I was gonna say is – and John, you alluded to this – is really it’s all of the pieces of the textualist toolkit come out to play here. And it’s – look, the words aren’t in there. There would be a contradiction because the constitution inhibits taxes on exportation, so if we read “regulate importation” to be a tax, then that creates a textual contradiction.

Several things like that. It talks about article one, section eight of the constitution giving tariff powers to congress, so I just think that for folks who wonder what textualism is, well, here’s a nice 20-page opinion that you can read, and I think the average person can understand what’s going on in this case.

Andy Morris: That’s great, and adding to that point, and we’re all textualists now, as Justice Kagan said 10 years ago, and you see it here where the democrat appointees are on-board with the republican appointees in a textualist approach. Now, you could take across the seven – is that right – opinions you see within textualism, there are disagreements, but the approach is based on the text. And Justice Jackson has her place-saver for –

Mark Chenoweth: Legislative history.

Andy Morris: Doing your work for the future, the legislative history still matters.

Mark Chenoweth: Right.

Andy Morris: But it’s the whole road has moved over to that, as I know you’ve pointed out. And as segue to your point about the rest of the opinions is that could have been it. That could have been sufficient, and then this case became – I don’t know what you want to call it – sort of expository textbook or something for these other concepts where arguably, you didn’t need the Major Questions Doctrine. Although, the three justices went on to address it, and then there was a debate about that, and then there’s a question about where non-delegation encompasses these issues.

And so, a number of issues were reached that on some readings, you didn’t really need to, but this becomes a whole course in the interplay between a number of these very important doctrines.

John Vecchione: I wanna just remind our listeners, because we’ve discussed this before, how important that exportation was. That Mark just mentioned it, but basically, those who said that Congress meant to give the tariff power in IEEPA. There’s a bunch of words between “regulate” and “importation,” and they were saying that because, if you just take those words out, it’s “regulate importation,” that means tariffs. But it also said that would also mean exports, and in the constitution, you’re not allowed to tariff exports, and I had forgotten that until this case.

But that is real textualism, because you can’t make sense of it if you put “export” in, and I did not see one thing in any of the dissents explaining why that wasn’t this case.

Mark Chenoweth: Yeah, why the word would have to mean one thing reading part of the sentence.

John Vecchione: Right.

Mark Chenoweth: And that exact same word meaning something else reading a different part of the sentence.

John Vecchione: I might have to read Kavanaugh again, but I saw nothing about it. And so, that, I think was very powerful textually. But there’s one other thing I wanna add, because I have had this fight brewing with our friend Chad Squitieri, but also Ian Warman has been on Twitter about it, and this is what I would say. And Kagan brings it up in hers, in Gibbons v. Ogden, the idea that you regulate imports by tariffs is not a controversial idea, it’s a true idea, and in the early republic, there were cases and statutes that said that.

And certainly, by the 150 years after the last time it was used that I can see in any of the sited cases or any of the sited statutes, they had stopped using “regulate” in that way, because they used “regulate” everywhere, and then we’d have this problem that we brought up in our brief, of everything could be taxed.

Mark Chenoweth: Well, and the other thing that he says about that same paragraph, is that there are nine verbs in that statue, and none of them involved revenue raising. So, the idea that we would read the one verb “regulate” to raise revenue, just to your point, Congress wasn’t thinking about that in this part of the statute.

Andy Morris: But the premise of your point, which I agree with, and we have hammered along with others in this case, is that raising revenue is different from blocking, prohibiting, and so forth. And an argument that new readers to this might see is, “Well, if the president can block all imports from a country, it’s a lesser power to tax, so the president should be permitted to tax.” And the response to that, which Chief Justice Hassell’s opinion is that’s not a matter of degree, under the constitution, imposing taxes is different.

As somebody put it in one of their comments, they said the power to tax is the power to destroy, but it doesn’t follow the power to destroy is the power to tax.

Mark Chenoweth: That’s a pretty witty comment.

John Vecchione: That’s good.

Mark Chenoweth: I like that, I like that. But what about that, John? The president was very upset about the fact that he – what was his line? That one dollar or one penny, except he’s done away with pennies.

John Vecchione: Yeah, exactly. I can’t do one dollar after – what did he call us? Everyone who brought these cases? We were –

Andy Morris: A lot of things.

John Vecchione: Yeah, exactly. But in any event, the fact is that that may seem odd, but I’ll tell you this right now, in these emergencies, they’re mainly used to cut off commerce with hostile powers. It’s not supposed to be, “Now we’re gonna hurt you a little.’ This is it; this is wartime. This is wartime, or emergency, and you wanna stop something in its tracks. You don’t wanna hurt it a little.

Andy Morris: Yeah, that makes sense in explaining the language and the history of this use of the language, and the structure of these statutes as you’re indicating in your explanation is that a complete embargo is in effect self-limiting and self-regulating, because this president couldn’t impose an embargo with the entire world. We’d starve in a week, or whatever would happen. Whereas –

John Vecchione: England would, I don’t know if we would, but yeah.

Andy Morris: Whereas a tariff as you say, you can impose, and use in a more modulated way. But the embargo is self-limiting, and that’s why in an emergency statute, it makes sense. And they’re not concerned. The president can impose a 100% tariff on selected countries, or a lot of countries, and leave it out there.

John Vecchione: And I will say this, Kavanaugh’s thing he was talking about Lincoln imposing an embargo on the confederate states, but even there, he couldn’t do it. They needed stuff, and so there would be exceptions, even in the Civil War. But I do think that that is a difference, but the other difference I will say this, the power to tax is so corrupting, and that is really what’s going on here. If we see all tariffs, the reason Congress in all other statutes gave tariff power to the president is because they were like, “Stop me before I tariff again.”

That was the basis of it, because it was every lobbyist in the world was coming to Congress. Now they’re all going to the White House. There is a difference, because of this ability to so favor one manufacturer or the other manufacturer that it creates opportunities of the corruption and distortion of the markets.

Mark Chenoweth: Well, and we’ve talked about, not in the tariff context, but we’ve talked on this show before about the problem of the Power of Suspension and Dispensation. This was a power that the King of England had to say that certain laws no longer are in effect, or that a certain law isn’t in effect with regard to this particular person. So, we saw this with the TikTok law, problematically. What was happening with the tariff laws, once the president put the tariff in place, a broad percentage tariff, then he was starting to hand out particular favors to particular companies or industries, saying, “Well, not you,” or “not that,” or “not over here.”

Well, that’s unlawful suspension and dispensation power, but it was happening all the time because of the way that the president had broadly put the tariff power, and then was trying to do the exceptions. That is not the American way.

John Vecchione: And Roberts actually points this out, that the fact is, the other tariff statute – because Kavanaugh says, “Mr. President, I’m the good little boy helping you. You can do this all through these other statutes.” And Kavanaugh says, “All those other statutes have limits and purposes and –

Mark Chenoweth: Roberts says.

John Vecchione: Roberts says. And then he says, “But that’s not before us, that’s not our job to tell the president that he can go do these things. he just can’t do it under IEEPA. Because I did think that was pretty babyish of Kavanaugh, too. What the heck was that all about.

Andy Morris: He did take the “check the wrong box” kind of argument and of course, if it were that easy, the president would have used the other statutes. That’s the point of this whole exercise is that they’re – so, for example, section 122, which the president posed last week, and I am not an expert on.

John Vecchione: Yeah.

Andy Morris: But as I understand it, one of the limitations, it’s limited in time, and in amount and so forth, is there’s a non-discrimination provision in there.

John Vecchione: Yup.

Andy Morris: So, not only does the president lose the ability to react immediately to a country that annoys him, he can’t have Tim Apple to the White House, as I understand it to that statute. And start handing out dispensation.

John Vecchione: And that is already because since this decision he put in 10% 122, and now he wants it up to 15%.

Andy Morris: He did, right.

John Vecchione: Maybe there was some problem with telling the minions what to do, but the fact is, it wasn’t done overnight. It can’t be done overnight; you have to check the boxes. So, I do think it matters, and it shows also that Congress knew what I was doing. Because when it gave away the tariff power, it controlled it.

Andy Morris: Yeah.

John Vecchione: And so, that’s, I think just in the days since this order came out, Justice Roberts is being vindicated.

Andy Morris: Absolutely. And each tariff statute has its own specific reason, whether it’s national security, or unfavorable trade practices regarding a certain industry that Congress has shaped, so that the president makes findings and takes actions that are limited and based on the purpose of that tariff statute. They make sense when you look at them, they each make sense within their own area.

John Vecchione: I think that’s right now, I wanna move on to some of the other opinions.

Mark Chenoweth: Yeah, Major Questions, you started that before.

John Vecchione: Exactly. So, I did want to. So, three, so, Gorsuch, the Chief, and Barrett say that this was a Major Questions, and here, although he wasn’t histrionic about it, I did think that Justice Roberts slipped the shiv to the administration by saying that you cannot say that – because their paper somewhat differed from the rhetoric that this was a trillion dollars.

Andy Morris: Absolutely, no I love you on this point, absolutely.

John Vecchione: And so, he said, “Well, if it’s gonna affect trillions, this is bigger than Biden.”

Andy Morris: Yes, yes.

John Vecchione: From giving all those loans, which you know that goes up the administrations nose pretty bad.

Andy Morris: Which was particularly effective because he does it so casually, and civil of course.

John Vecchione: Yes, yes.

Andy Morris: Yes, it’s very well done.

John Vecchione: And so, he says, “Look, so these are Major Questions.” I tend to agree with Kagan. I thought this was so clear that you didn’t need to get to the Major Questions Doctrine, but I certainly think it buttresses the whole thing. Because if this was lying around with all this power, and it wasn’t use for 44 years, or 45 years, no one thought it was this way, and it has that much money, and that effect on the whole economy, it certainly was in the Major Questions ballpark.

But I didn’t get – and we’ll get to Gorsuch in a minute – I didn’t get as mad at Kagan and the concurrence because I did think this was a textualist statute. I did think that you could just do this through pure textualism without recourse to the Major Questions Doctrine.

Mark Chenoweth: Yeah, that’s a reasonable position to take.

John Vecchione: Yeah, yeah.

Mark Chenoweth: Maybe we should just pause to say, for those who weren’t following it closely, the way that the nine justices broke out here is that it was Roberts writing the majority opinion, joined by Barrett and Gorsuch among the republican appointees, and then all three democrat appointees joined part of the opinion, the textualist part, but not the Major Questions Doctrine part. And then, the dissent, primary dissent by Kavanaugh, joined by Alito and Thomas. Thomas also writes separately in dissent with sort of a more originalist take on it.

But what was your thoughts on the Major Questions Doctrine portion of the opinion there?

Andy Morris: I agree, I didn’t think it was necessary. There is – and again, it still doesn’t have a majority of the court, I think. It doesn’t in this case, and there’s the disagreement between Justice Gorsuch and Justice Barrett about whether it’s substantiative, or follows from it’s just application of textualism.

Mark Chenoweth: Yeah.

John Vecchione: And because Americans pay the tariff.

Andy Morris: And yes, Americans pay the tariff.

Mark Chenoweth: But to your point, they’re saying the Major Questions Doctrine still applies in that context, in the foreign affairs context, which there was some question about that.

Andy Morris: Which is significant, I think, and Justice Kavanaugh disagrees with that, I think completely with that.

John Vecchione: Yeah, well in foreign affairs, he doesn’t say it never applies to the president, because this was administrative.

Andy Morris: No, on foreign affairs, yes.

John Vecchione: But on foreign affairs he’s very strong on that.

Mark Chenoweth: And emergencies, it applies in emergencies. That’s the other –

John Vecchione: Yes.

Andy Morris: Which is a big step, a big problem in this case, talking about big pitfalls that have been a concern from the start. Just emergency cases where you’re read more than I have, but I’ve read a lot of them at this point, there’s such deference to the executive. Once the word “emergency” is in play, we saw there’s limitations to that here.

John Vecchione: And I will say this, so the amicus briefs, a lot of them focused on nondelegation, and Major Questions, and some of them, and even I think our friends at V.O.S. Selections certainly wanted the justices to get to emergences. And they’ve always said pretty much they say in here that the president says they’re nonjusticiable, but I think most of the justices want them to be nonjusticiable, what an emergency is. And so, none of that happened. They didn’t reach whether it’s an emergency or not, they didn’t reach nondelegation, they avoided a lot of that that people spent a lot of time writing about.

Mark Chenoweth: But that we didn’t in our original complaint. Can I just point out?

John Vecchione: Go ahead.

Andy Morris: Yes, no.

Mark Chenoweth: The original complaint that you guys devised was very focused on textualism, not on the emergency piece.

John Vecchione: Not on the emergencies.

Mark Chenoweth: Not on the nondelegation piece as much.

Andy Morris: Thank you, that’s another satisfying part of this. I think that that’s right, and to jump in on the nondelegation, for example. Again, y’all have thought about this more than I have, but nondelegation seems to play the role it has played in a number of cases, which is, it’s a gravitational force that’s kind of off stage, but it exerts pressure so that the court is more willing to step up on Major Questions, and textualism, and other doctrines. And it’s just there as a controlling force, and nobody wants to deal with it.

Mark Chenoweth: I call it a constitutional backstop.

John Vecchione: Plus, I think, Alan Morris, I think it’s nondelegation has lost in the tariff area so many times that I don’t think this is really the time to do it.

Andy Morris: Yeah, yeah.

John Vecchione: But the other –

Mark Chenoweth: Although, it comes from the tariff context.

John Vecchione: I know, I know, I know.

John Vecchione: Yes.

Andy Morris: That’s right, that’s right.

Mark Chenoweth: Yup.

John Vecchione: But so, I did think, I thought Kagan – and now, I will say this. We know why it took so long, it’s because Gorsuch wrote his thing and everyone had to respond to that. I think we’ve gone over Kagan’s concurrence, she just says pure textualism, and I didn’t think there was that much there that was new from her. And then, I will say this, this is the worst opinion I’ve ever seen from Thomas, because he writes all about nondelegation, and how it doesn’t apply to so much of the constitution. Sometimes he says it’s because a lot of the things that they gave the legislature in the constitution were really prerogatives of the king, and so they might not be really legislative.

So, he can delegate those things to the president because they used to be the kings. Which I’m not –

Mark Chenoweth: Why do you think they didn’t give them to the president?

John Vecchione: Yeah.

Andy Morris: Do you see roots of that in other Thomas opinions?

John Vecchione: Yes, I do. I will say this, he does always take away some of this foreign intercourse with foreign nations because he often says that judges have no power out there when you go abroad, and only the executive does. There’s hints of it. But he does – I thought he quickly took Mike McConnell articles and law reviews for his positions on some of these things – but all he did –

Mark Chenoweth: Who was a lawyer for V.O.S. Selections.

John Vecchione: For V.O.S. Selections, exactly. Sorry, I should have added that, so I thought that was a little sub-Tweeting by him. So, but really, I thought it was weak because I first –

John Vecchione: I’m not sure. I disassociate myself with this. There’s a six-three win, you can’t get away from it. But the real thing here is, I think that Thomas kept going on about the powers of the president, nondelegation.

And I think as a matter of judicial prudence, the three dissenters should have found a way to be on the Chief Justice’s side because this was so important to the administration. And they know that the president was gonna do the type of attacks, and the type of splitting the court that we saw in his speech after. So, I’m very disappointed in Thomas, and I didn’t think it was a powerful argument. I agree with a lot of what he said, but it was all irrelevant stuff.

What did they say in their statute in ’77, and he barely touched on it.

Andy Morris: No, that was disappointing, I agree. And I think we’re gonna run out of time to close up on Justice Kavanaugh without getting into the details. It’s disappointing that they didn’t join this textualist, what I thought was a very sound opinion, but the trust of his theme does fit with some Kavanaugh themes over time, to give him credit for that.

Mark Chenoweth: Yes, yes.

Andy Morris: It’s disappointing, but I don’t think they override the textualist –

Mark Chenoweth: It’s disappointing, not surprising.

John Vecchione: Yeah, it’s disappointing in a consistent way.

Andy Morris: And I’ll add, on the Gorsuch opinions, I think we’re wrapping up, is for law students out there, it’s an unusual Supreme Court opinion I would recommend regular people read. It’s long, but it’s really beautifully written, and I think it kind of marches. It’s good for law students, because it marches through his disagreements with a number of justices, and state of play.

John Vecchione: All of the justices except Roberts.

Andy Morris: As the esteemed Adam White put it,

Mark Chenoweth: He knows where to bread his butter.

John Vecchione: Listen to this.

Andy Morris: As Adam White put it on a podcast, he said that Gorsuch’s opinion is equivalent to the scene in The Godfather where in one fell swoop they go through the five families, and settle business with everybody.

John Vecchione: Yeah, you could hear “Ave Maria” in the background as you read it.

Andy Morris: He goes through and kind of in very just clear language tees up his disagreements with the other justices.

John Vecchione: So, I do want to get to Kavanaugh for one second. So, Kavanaugh, and I think that the weaknesses of Kavanaugh’s opinion is displayed by how long it is. You need to go a long way, and do a lot of work to fight Roberts, who did it in 21 pages. And he does it in long pages, and he relies on things like Algonquin, which I consider to be non-textualist ‘70s type judging.

Andy Morris: That’s a great point, yeah.

John Vecchione: And so, he keeps reaching out to these cases which he would never reach out to on something he disagreed with, I think.

Mark Chenoweth: Any port in a storm, John.

John Vecchione: Exactly.

Andy Morris: Yeah.

John Vecchione: So, I didn’t like his – I thought that the total reliance on Algonquin was weak. I thought he – again – he said regulate imports, and he didn’t dissociate the export problem, and he didn’t explain why, for 175 years this had never been done. And he relied on Nixon’s four months of tariffs.

Andy Morris: Right, right.

John Vecchione: At which, the Chief I think pointed out, Nixon didn’t use this statue.

Andy Morris: Yes, which was a wonderful fact, yeah.

John Vecchione: The justice department used it later, Nixon used 122, I think. Which actually, it might have been a balance of payments thing, it might have been okay.

Andy Morris: Nixon was retired in San Clemente by the time they made that argument.

John Vecchione: That’s right. So, I just – the last two things I wanna get to very briefly is, so Jackson is setting herself up as the – she believes in legislative history. She says it at oral arguments. She asked all of the advocates to say, “What does the legislative history support?” She gives reasons here, but I think she would be better, she should hold her fire until there’s a real dead shot from the legislative history. Because I’ve always thought legislative history can be used to explain what they were fighting about.

I think often times, you can at least know what people were fighting about. So, there’s not a lot there new from her. It’s just legislative history matters, which most of us don’t agree on anymore. But the most fun of all these fights is the one that doesn’t matter, and I’d like to close with it, unless you guys have this and that’s.

Mark Chenoweth: Well, you can close with it. Let me just – I wanted to throw out one thought.

John Vecchione: Go, go, go.

Mark Chenoweth: About our friends at Liberty Justice Center.

John Vecchione: Yes.

Mark Chenoweth: Because this case will forever be known as Learning Resources, and I’m sure our friend Rick Woldenberg is happy about that, but I do feel for them a little bit, because jurisdiction was found in their case. It wasn’t found in the Learning Resources case.

John Vecchione: Over our objections.

Mark Chenoweth: Over our objections. I’m not sure that the court was right about that.

John Vecchione: It’s nine-oh, though, it’s nine-oh on that.

Mark Chenoweth: Yes, it is. But somebody pointed out to me, they said, “Look, if your case had been the only one up there, or if Learning Resources had been the only one up there, there’s no way they would have denied jurisdiction in the case.” So, I think there is something about the fact it made it easier on remand to do it this way, something like that

Andy Morris: Yeah.

Mark Chenoweth: I’m a little sympathetic for the same reasons that we have Loper Bright relentless.

John Vecchione: Yes.

Mark Chenoweth: I feel sorry for them that V.O.S. Selections is not going to travel nearly as much with this case, even though they’re the ones that have jurisdiction, they’re the ones that are going back to the federal circuit, of course.

John Vecchione: It’s true, and Sarah Albrecht was teasing me about the jurisdictional thing, and I was like, “It was only nine-oh.” But anyway, so I do think just to finish up though, because we were wrong on jurisdiction. I think it’s a terrible thing that the president –

Andy Morris: It’s not that we were wrong, they ruled against us.

John Vecchione: Yes, they ruled against us. The president can misuse a statute that is not a tariff statute, but because he illegally changed the tariff schedule, that gives the CIT his chosen court jurisdiction.

Andy Morris: Yes.

John Vecchione: That is a terrible decision, I’m not gonna back away from that. But the last thing I will just ask everyone’s opinion. The fight between Barrett and Gorsuch over whether the Major Questions Doctrine is substantiative, or just a tool when they have never been on the opposite side of a case in the Major Questions.

Andy Morris: Right, right.

John Vecchione: I looked this up before this program so I could make sure.

Mark Chenoweth: They always agree.

John Vecchione: They are always on the same side in every Major Questions opinion, and now they’re sniping at each other about what it is like law professors. What do we make of this?

Mark Chenoweth: Well, they sit next to each other on the bench, right? So…

Andy Morris: Look into the future.

Mark Chenoweth: I don’t think it matters, and I don’t think it will matter. I don’t think that you can come up with a Major Questions case where whether you treat it the way Barrett does, or the way Gorsuch does is going to matter. I’ll tell you what will matter, is the way that Kavanaugh treats it where he says, “Well, as long as the congress has been specific about the delegation, then we’re okay.” Well, no, that is not right, and I don’t think Chief Justice Roberts is on board with that version of Major Questions either.

Andy Morris: One asterisks on that is sometimes, whether it’s a substantive cannon makes a big difference to a lot of textualists. Substantive cannons matter, and for that reason, Justice Barrett is continually drawing this line.

Andy Morris: Absolutely, all the, yes, they did a great job.

John Vecchione: Yeah, yeah, and Neil, and Mike, and Sarah, everybody. Congratulations to you all.

Mark Chenoweth: And Stephen Johnson.

Andy Morris: Yes.

John Vecchione: Yes, and to all the plaintiffs, and we thank our plaintiffs for doing this as well, because it wasn’t the easiest thing in the world when you first file. So, thank you to everyone, and we will see you all next time on Unwritten Law.

Andy Morris: Great, thank you.

[End of Audio]

Duration: 32 minutes