Firings, and Tariffs, and Trump, Oh My! |
Justices Barrett and Kavanaugh are still chewing over Justice Gorsuch's questions from the tariffs case.
Josh Blackman | 12.19.2025 1:00 AM
I attended the oral argument in the tariff case. Secretary of the Treasury Scott Bessent sat a few rows behind me, right next to Secretary of the Commerce Howard Lutnick. Every now and then, I turned around to look at Bessent and the other politicos. He was paying very close attention, and didn't doze off.
Now, Bessent seems to have some information we do not. Bessent told Fox Business that the ruling would likely come in January. If Bessent is right, the opinions in that case must be nearing completion. Yet, based on the oral argument in Slaughter, the tariff case is very much on the Justices' minds. These two cases may be landmark rulings for the separation of powers. In Slaughter, both Justices Kavanaugh and Barrett brought up the tariff case by name, and Justice Gorsuch called back to his questions from that sitting. Plus Solicitor General Sauer tried as hard as he could to avoid any discussion of the non-delegation doctrine and the major questions doctrine. If Bessent is right, then the Justices are just thinking out loud. But something tells me that the tariff case is not quite settled yet. As I wrote after that argument, counting to five may be tricky.
First, Justice Barrett recalled Justice Gorsuch's question concerning legislative vetoes:
And, actually, this is a question I truly don't know the answer to and I just thought of it during the argument as we were talking about bargains.
So both Justice Gorsuch and Justice Kagan were asking you about the bargain that Congress has made in creating these independent agencies. And I was struck by, you know, I remember Justice Gorsuch brought up in the tariffs argument the fact that the tariff statute had a legislative veto originally. I don't know whether the original 1935 FTC Act from Humphrey's did or did not.
But I guess the question that I have, is that part of the bargain? Because legislative vetoes were pretty ubiquitous throughout the Twentieth Century. . . .
But I guess what I'm saying is, having lost that check, maybe these independent agencies have become something that Congress didn't intend or anticipate even at the point that it set it up, which is the point that Justice Gorsuch made in the tariff argument with respect to IEEPA.
I wrote about the legislative veto issue here. Barrett's intuition was right. Congress added a legislative veto over FTC rules in 1980, but that "bargain" was upset........