Advisory Opinions - Supreme Court Hears Oral Argument in Trump’s Tariff Case

Episode Date: November 5, 2025

Following the Supreme Court oral arguments in President Donald Trump’s tariff case, Learning Resources Inc. v. Trump, Sarah Isgur is joined by David French, David Lat, and Latham & Watkins LLP partner Roman Martinez to explain where the legal battle will go from here. SCOTUSblog’s Amy Howe also joins from the steps of the Supreme Court to relay her observations from inside the courtroom. Watch the livestream here.  Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including access to all of our articles, members-only newsletters, and bonus podcast episodes—click here. If you’d like to remove all ads from your podcast experience, consider becoming a premium Dispatch member by clicking here. Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Hello, and welcome to a special live edition of advisory opinions. I'm Sarah Isger, that's David French, and we just finished the marathon. oral argument in the Supreme Court's tariff arguments. There is so much to break down. We have special guests, Amy Howe, reporting from the steps of the Supreme Court, David Latt from original jurisdiction, and Roman Martinez as our color commentator from

Latham Watkins. But first, before we dive in, a quick and exciting announcement. You can now get continuing legal education. CLE credit for listening to Advisory Opinions. Well, this Advisory Opinions episode, we're working with. with Lawline to accredit select episodes, and we're piloting that starting today. Here's how it works.

You make a payment and register at scotusblog.com slash CLE. And once the episode has been accredited, usually within four to five business days, you'll get a special email from us with instructions for watching the episode and receiving your credit on Lawline. This is our first CLE accredited episode and a pilot for more in 2020.

Now, credits are only available in select states. Those are listed on the site, so definitely check that page. But we've got New York, New Jersey, California, Illinois. We're missing Texas and Virginia. I'm looking at you, Texas and Virginia. We're working on expanding the list, though. So stand by on that. If you're a lawyer who wants to earn CLE credit and already listens to this podcast,

definitely check it out. Again, it's scotusblog.com slash CLE. that URL will also be included in the show, in the show notes for today's episode. And we've got something else, something else really important. We've alluded to it before, but let's just be out front. This is, we got something very exciting happening. April 14th, Sarah's book is coming out. It's called Last Branch Standing.

And so here's the request, advise your opinions, listeners. could you pre-order the book? I just did. I pre-ordered it in hardcover. None of this Kindle nonsense. I went with the hardcover to hold it, to read it. And look, this book, I think this is an important book. I'm going to be honest with you.

I think this is an important book. This is not just a promotion to say read Sarah's book. I think this book really is important because I think it's going to bring the last branch standing a lot. So, Sarah, tell us what the book's about. Okay, so to quote the dust jacket, a myth-busting glimpse into the inner workings of the Supreme Court, revealing what we get wrong about the Roberts Court, what the justices clerks are gossiping about, and how to fix a court in crisis. It's an explainer for non-lawyers and lawyers alike. Plenty of fun tidbits in there, including John Jay's head injury that prevents him from writing the rest of the Federalist Papers and makes Hamilton.

way more famous. I mean, he gets a musical out of it. Why the end of the filibuster is so bad for the judiciary and law students. And who on the court is watching this season of Slow Horses? I know for a lot of you guys watching and listening, we've been together for six years now. It's stunning this community of legal nerds we've built. The hope is that this book represents you and our A.O. family. I certainly wrote it based on your questions,

and I edited it based on so many of the comments that we get back from you guys. And I hope it will help us find more people to join our little family and understand the court and not just accept a story about good guys and bad guys based on what jerseys they wear. So thank you to our writer dies out there. We really do appreciate y'all so, so much. But now, what? One more thing. One more thing.

One more thing. I want to double emphasize before we move on to the main event. These pre-orders really do matter. As a prior, as someone who's published books before, I know they matter. early pre-orders help determine things like how much major booksellers are willing to put the book on the shelves. So I just want to put an exclamation point on this. Guys, this is a product of, as Sarah said, six years of loving labor in this podcast have resulted in Sarah's book. This is, I think, really a great expression of our AO community, and I'd love to see our AO community rally

and pre-order this book. And as I said, I think this is going to be an important book. And I'm very, very, very happy that it's coming out in April. Thank you, David. All right, it's time for Wednesday afternoon football. Da-da-da-da-da-da-da. Okay, we have Amy Howe, long-long-time Supreme Court reporter. There is no detail about process or procedure that Amy Howe doesn't know. She'll be joining us from the courthouse steps in a little bit.

She has to get out, go to the locker, get her stuff back, because remember, no electronics allowed in the Supreme Court. David Latt is joining us. He is the author of Original Jurisdiction, a newsletter that I'm sure you guys all already read. And we have Roman Martinez. He is the global chair of the Supreme Court and appellate practice at Latham Watkins.

He's argued at SCOTUS 15 times. Next argument to come, major First Amendment case on December 9th that David French and I have talked about plenty. This is that Federal Election Commission case and money in politics. So we'll be spending a lot of time on that, Roman, but he is also the subject of Supreme Advocacy,

a new documentary about Supreme Court litigation being released by Bloomberg Law and important disclosure here, part of the Latham-Walkins team that wrote an amicus brief in this case on behalf of the U.S. Chamber of Commerce in support of the groups challenging the tariffs. And David, we noted that it, It was a really lopsided amicus brief world coming in to this argument.

So let's start with handicaps. We just listened to three hours, basically, of arguments about this case. I'm sure we all went in with preconceived notions, both of what we wanted to happen and what we actually felt happened. Roman, I'm going to start with you, actually. What's your handicap on what actually is the outcome of this case now? Well, thanks, Sarah. And thanks to everyone for having me. I'm going to go out on a limb, and I'm going to say it's not going to be unanimous.

I think we got two hours and 40 minutes of, you know, in many ways the Supreme Court at its best, really debating a very tricky question with hard questions law by all nine justices at all sides. I think, you know, bottom line, it's too close to call, but it seems to me that both sides are going to have at least probably at least three votes. and then there are probably three votes in the middle that are up for grabs. I heard... Who are the three votes in the middle? I think the three votes that are probably the most likely

to be the deciding justices here, probably the Chief Justice, Justice Barrett, and Justice Gorsuch. And, you know, I think we heard a much stronger questioning against the challengers from Justice Thomas, especially justices Alito and Kavanaugh. And on the other side, we heard, you know, tougher questioning of the government from the Democratic appointed justices, justices Kagan, Sotomayor, and Jackson.

But I do think it's going to be close. And they really were kicking the tires on a lot of tough issues and a lot of very in-the-weeds questions of statutory interpretation and constitutional law. Normally, Justice Kavanaugh is our middle justice along with the chief and Barrett. were you surprised to hear him, you know, at one point really throwing a bone to the Solicitor General in the government's case in a few of his questions? And quite, you know, as you say, some strong questions for the anti-tariff side of this. Yeah. And, you know, it's always, it's always a, it's always hard to predict with certainty where justices are going to land. So I don't want to say that any of these

justices votes are in the bag one way or the other. But it did seem like Justice Kavanaugh was coming at this from the perspective of a certain approach to textualism. And he was really focused on the historical context and the historical meaning of the key language of the IEPA statute and how that would have been understood by Congress and by the public in the mid-70s when that law was enacted. And in particular, he wanted to probe with the advocates two sort of historical episodes or historical kind of reference points and what they met. Number one, One was President Nixon's tariffs and the subsequent litigation over those tariffs. Those tariffs had been imposed under a different statute, but a statute that used a statutory

phrase that was later imported into the AEPA statute. And then also a case from 1976, the Algonquin case, which interpreted different statutory language but involved similar arguments. And he was very, very focused on, you know, some would say cross-examining, but that's sort of standard for how the justices do their job in this. these types of arguments. He was really cross-examining Neil Cachall and Solicitor General Guttman on sort of their understanding of those episodes. And that's how he was, it looked like how he was coming at it. But the way he was asking the question sort of suggested that he thought

that those episodes sort of changed the context and gave meaning to a statute that might be more in line with what the government's arguing. David Latt, David French and I had a long conversation about whether it was a mistake to have basically two more liberal Supreme Court advocates argue against the tariffs. Because as we've noted, the amici are really defy ideological buckets. There's conservative amici, there's liberal amici, there's non-ideological amici. So they certainly had a choice of who to have argue this case. I guess I felt like the anti-tariff side win in with their wind at their backs into this argument, and that either this argument didn't matter because in these really big cases where you have great briefing, the justices largely have a

worldview already, you know, baked by the time they go into oral arguments. Or this didn't go as well for the anti-tariff side as they may have hoped. Do you think, how do you think they did? And what's your prediction? So I will actually disagree with you. I feel like usually we agree. So let's mix it up. I actually thought this went pretty well for the tariff challengers. I think that Solicitor General Sarah got some pretty tough questions and surprisingly tough questions from Justice Gorsuch. And so I actually thought this went pretty well. And I will say, you know, full disclosure, I'm, you know, friends with Neil Katyal, but I think he did an excellent job. He is a liberal advocate, but I think he speaks fluent originalees or textualese or whatever you want to call it. I remember his

argument in Morvee Harper involving the independent state legislature issue, where again, he was great and he knows the history. So I thought he did an excellent job. And just if we're sort of like the Scotus Live blog, it was kind of like we were the commentators at, you know, ice skating or something. I mean, just in terms of his technical work as an advocate, one thing he does so beautifully is he will reference a prior justice's question when he's taking in a question from a new justice. In his response, he'll say, well, Justice Kagan. As Dr. Barrett mentioned earlier, he is just so a pro at it and he does it so organically and naturally. So I will actually go out on a limb because, you know, look, it's kind of our

job to make these predictions. And if we're wrong, nobody's going to remember. But if we're right, I can link back to this conversation, which will still be on the internet. I think that the tariff challengers will win, but it's not going to be the usual 333 that AO listeners are accustomed to. I think Gorsuch and Kavanaugh are swapping places. Often Gorsuch, along with justices and Lido and Thomas, sort of forms this right wing of the court. He was going at Sauer. I was really surprised. And I think he's going to switch places. I think Justice Kavanaugh will vote with the government. I think that Justice Gorsuch will vote with the challengers. And then the liberal justices, I think it was quite obvious. They barely had any questions for the challengers.

I think you're going to have a 6-3 lineup with the dissenters being justices, Thomas, Alito, and Kavanaugh. So that's my prediction. And if it's wrong, nobody will remember. And if it's right, I'm going to link to this. David, you know, we had said there were three questions heading into this for the Supreme Court. One, did Congress give the president the power to implement these tariffs? Two, can Congress give the president to implement these tariffs? And three, did the president meet the statutory qualification?

we really never got to question three. There was no discussion among the justices of, is this an emergency? Who gets to decide whether it's an emergency? Do judges have a role to play here? Most of the justices' conversations were really on the text of the statute itself. And Gorsuch, as both Roman and David have mentioned,

was hard charging on question number two, in particular, can Congress give this power to the president? But it did come up. Major questions doctrine, did Congress give this power to the president? Absolutely came up, but way less than I thought. So what's your prediction? Yeah, I'm going to mirror David's prediction on the ultimate outcome and the alignment. I feel a little bit shaky about it, but I think just given the questioning, that's the overall thrust.

And I feel more confident, let me put it this way. At the end of Sauer's argument, I felt very strong. that Gorsuch was all in against the administration's position felt a lot, I felt more different the longer the argument went on. The longer the argument went on, it felt as if there was almost a momentum shift. It's like you're watching a big football game and you had some great opening drives out of the anti-tariff position. And then in comes Justice Alito. Like coming in, It's like he's coming in off the bench, and he did his kind of a Justice Jackson impression, which was, I'm taking over this oral argument.

And there was a point where, and I felt like it just changed the tide, which is a very normal dynamic and oral argument when one hospital questioner like really takes over and starts to drill an oral advocate, it is very hard to feel like you're winning in that circumstance. It's very hard. And I felt like it really began to shift kind of the momentum. But at the very end, Gorsuch came back, and this is one area where I'm going to offer some sort of mild disagreement on the oral advocate point with David.

I think Neil did a really good job. But I think there is a difference between a person, let me quote, Mike Huckabee, from the 2007 values voters convention. Okay, this is a deep poll. He was, I remember this. because he was critiquing Mitt Romney. And he said, we need someone who speaks the language of Zion as a mother tongue and not a second language.

And he was speaking in that context religiously, but I was thinking of sometimes you need someone who speaks the language of originalism as a mother tongue. And at the very end, you had this mother tongue moment from Gorsuch that I thought was sort of a slam the door moment. And at the very end, he says this, and I've been trying to find the line. This is a rough live transcript. He says, am I wrong?

A key part of the context is the constitutional assignment of the taxing power to Congress. The power to reach into the pockets of the American people is just different. And it has been different since the founding and navigation acts were part of the spark of the American Revolution, where Parliament asserted the power to tax, to regulate commerce. Some of those were revenue raising, some not raise a lot of revenue. We did not have a lot of pirates. I missed that reference a little bit. In America, at the time, Americans thought even Parliament could not do that.

It had to be done locally through elected representatives. Isn't that what is really animating today? In other words, okay, this is a counter. category issue. And the category issue is this taxing power is just different. It's been different since day one. And so if you're going to delegate this very different power that's been different since day one, it's got to be done differently than this. And so I felt like there was a rhythm to it where at the very end, Gorsuch throws the fourth quarter touchdown pass essentially for the anti-tariff position. And so there was that rhythm back and forth, but it ended in a way that

I think Gorsuch staked out some very, very clear ground that I think is just very tough for the pro-tariff position. I think an important question for our listeners is going to be, is this more like football analysis or more like figure skating analysis? Because I think you could also easily say, you know, you nailed the first triple lutz, but then like sow cow after sow cow was shaky on, the landing foot, but then at the end, you really nailed the triple axle, you know? Like, so is it football? Is it figure skating? We do have the Winter Olympics coming up this year, which I am quite pumped about. Romon, will you talk a little bit about non-delegation doctrine and sort of how we got here? Because non-delegation doctrine hasn't really been a thing lately.

And we have justices Gorsuch and Thomas, who I think have wanted to make non-delegation. Great Again, Gorsuch, obviously, was there today. Are we going to see the revival of the non-delegation doctrine, or do you think this gets resolved on just the text? I mean, again, I felt like Katyal was leaning away from the more conservative shibilis. Like literally the terms major question doctrine, he said it once. But then when he was asked, and I think it was by Justice Gorsuch, do you think this sounds and major questions doctrine, he said, no, no, no, I think it's just the best way of reading the text,

which is kind of the Justice Barrett version of major questions doctrine, but the fact he wouldn't say, like, yes, because it's the best way of reading the text, surprised me? Yeah, so a couple things. So first on the non-delegation question, I think that Justice Gorsuch was sort of a couple of a couple points in the argument talked about non-delegation and the major questions doctrine, almost like in the same breath. And I think to him, he sees those doctrines as very closely related. And just so the listeners, just a level set, the major questions doctrine is technically a way of interpreting a statute.

And the non-delegation doctrine is a constitutional argument, a reason why the statute might be unconstitutional. And I think the way Justice Corsuch sees both these doctrines, they're really getting at the same idea, which is problems with Congress delegating too much authority to the executive branch, whether it's the president or to executive branch agencies. And so Justice Gorsuch would say, you know, the major questions doctrine would be a way to use that insight and that concern to read a delegation more narrowly. But if the delegation can't be read more narrowly and it crosses the line, then the constitutional non-delegation doctrine

jumps in. And I think Justice Gorsuch is clearly viewing the case in light of that concern. I don't think it didn't strike me that he had a clear view yet in his head. about whether it's major questions or non-delegation. I thought the comment about the text maybe not being clear enough on its own and needing one of those doctrines, I think was very telling. But let me just go back to what my friends, the Davids, were saying. I'm a practicing lawyer, and so I hate to be more lawyerly, and I like the boldness of their predictions.

And I especially like the fact that they're boldly predicting six three victories that would support my side. We said our client, the Chamber of Commerce filed a brief supporting the challengers. I will inject a note of slight caution on that. And, you know, my analogy is from a sport that's new to me, cross-country running.

My son competed in his first cross-compact the first cross-country competition that I went to for his middle school team. And the way it works in cross-country is your top five scores on your team counts. You can have 50 runners, It's only the top five, but you need five. And my concern is I could see the three more liberal-leaning justices, and I could see Gorsuch.

But that only gets you to four. And so I think we really got to think about the chief and about Justice Barrett. Now, the chief today, I think, had very few questions. I thought he played things pretty close to the best. He came out of the gate with a skeptical question for General Sauer, and then he invoked the major questions doctrine. But then he came back later and I've made a question to Neil Kahn. that was sort of, you know, seemed to come from the perspective of the government.

So I kind of think it's hard to read the tea leaves for him. Justice Barrett, it struck me, she may be at the heart of this case, and she is, she seemed very much legitimately up in the air, almost like she had not yet made up her mind and was really responding to the arguments. And I think three things jumped out to me from her questions. Number one, she has a, she's going to focus on the text. She's not going to want to use non-delegation or the major questions. to trump or to overcome what she thinks is the best view of the text. Number two, she has some concerns about some technical features of the language that really hadn't been focused on very much in the briefing, which is this question of licenses and

licensing fees. She also had a practical concern, a contextual concern about the donut hole problem or alleged problem with the challengers argument. The idea that, yeah, everyone agrees the president can ban imports entirely, but it's kind of odd to say, well, they can't regulate or take a lesser step by just taxing it. And then finally, I thought Justice Kavanaugh was catching her ear and catching her attention with some of his questions about the Algonquin case, and she was wrestling with that, too. So all that's to say, I love the enthusiasm of the Davids,

and I really hope they are right. On the other hand, I do think this is close, and I do think it's really important to focus on the fifth vote. I will actually take the bet that the Davids are wrong. I think it will be more lopsided one way or something. the other than you guys are predicting. I just don't think it'll be six, three, regardless of who's in the six or who's in the three. It felt to me, David French, that what we were seeing was a little bit of what Jody Cantor had written in that New York Times piece about the

sort of Kagan strategy. It clearly seemed like the justices thought that Justice Barrett was the swing vote. You saw Justice Kagan, say, let me follow up on Justice Barrett's question and like making sure that that got all the time and energy and the Justice Barrett knew that they were interested in what she was interested in. And vice versa, like Roman said, I think you saw Justice Kavanaugh doing versions of that as well. And it's worth noting that, generally speaking, the justices will have last talked about this case when they met to grant cert on this case to accept the case in the first place. Between then and now, they're not sitting around. chit-chatting about this before the oral argument.

This is the first time they're really often hearing each other's particular questions and interests and what sort of angle they're coming on. So they're kind of hearing things for the first time the same way we are. Now, Roman, you know, sometimes the clerks may have some back-channel conversations. But is there anything, you know, anything on that that you disagree with in terms of how you think the justices walked into today? No, although I will say that, and maybe I'm focused a lot on Justice Barrett, but it really did seem to me that her questions were, sometimes the justices come in with questions that are really designed to get concessions from an advocate or to really advance their view with their colleagues in subtle ways. And I thought Justice Barrett's questions were really designed to get a better understanding of the statute. Like she still had not made up her mind. I really think she was asking hard. questions and not just the words that were coming out of her mouth, but the tone of the

questions, I think she was really struggling to figure out how to think through the different dimensions of the text here. And so again, that's something we've seen in other cases. I mean, the thing that, you know, just to make a broader point, like, you know, the Supreme Court, the more conservative side of the Supreme Court, the Republican appointed side of the Supreme Court, it's not a monolith. There are different views on a lot of these hotly contested issues. And one of the key cases that's in the line of cases that that adds up to the major questions doctrine is West Virginia versus EPA. And Justice Barrett has talked about on her book tour, her concurring opinion in West Virginia versus EPA as being one of her favor opinions,

one of the ones she's most proud of stuff. And there she's sort of disagreeing in some ways with Justice Gorsuch on exactly how this major questions doctrine work. And I kind of think that this case might, may implicate some of those disagreements between the two of them. And it sounds very nerdy and technical, but like, you know, I think it might actually make a difference, both in how the opinions written, but maybe possibly in, you know, how these votes are actually ultimately going to be cast. Well, Ramon, David French and I have talked about that a lot, that the Amy Coney-Barrant version of major questions doctrine is this is what helps you think about what the text

actually means. You know, Congress wouldn't hide an elephant in a mouse hole. so probably the text doesn't hide an elephant in the mousehole, whereas Justice Gorsuch's version of major questions doctrine has been more like, we shouldn't let Congress hide an elephant in a mouse hole. So even if it's not the best reading of the statute, as long as it's a reasonable reading of the statute, we should shy away from allowing Congress to, you know, opakly, obliquely, give these broad powers. They should have to speak clearly to do that, or else we could run. into a constitutional problem. And so major questions doctrine is sort of a thumb on the scale, so you don't have to get to non-delegation doctrine. And I totally agree that those differences could very much make the difference on which side these justices are going to be on. When David French and I talked about that many weeks ago, I thought it would be unlikely that that, I mean, again, pretty nerdy distinction between two readings of the major questions doctrine would make all the difference in this case. But here we are, and it kind of feels like

it might. Let's bring in Amy Howe. She is at the Supreme Court step. She was in the argument today. Amy, can you hear us? I can hear you very well. I've been listening for a couple minutes. And this is kind of what it was like in the courtroom. It was a law nerd dream for several hours. Okay, first of all, any evidence that shutdown has affected this was the public allowed in today to the argument? The public was allowed in. There was no evidence of the shutdown whatsoever. The courtroom was backed. I mean, there were lots of members of Congress, presumably because they have plenty of time to go to oral arguments. Did you see Treasury Secretary Bissent? I did. And the Secretary of Commerce, Howard Lutnik, am I getting that right,

was also there. Senator Amy Klobuchar was there. And then there were other members of Congress that you could identify by their little pins, even if I couldn't personally identify them. The comedian, and John Mullaney also in the house. That's interesting. I know that Akeel Amar, our resident legal historian and John Malaney, are quite close. I wonder if Akeel told John Malaney, like, get your ticket now. Or maybe he just entered the lottery. He just got lucky in the lottery.

Yeah, totally. Amy, Roman was talking about sort of listening to the voice of Amy Coney Barrett and that she seemed to be asking genuine questions, not, hey, colleagues, here's where I am. I'm trying to persuade you type questions. Tell us about the body language. Did it look like that? Absolutely.

And I was thinking about this today, even before Ramon said it, because I've been trying to go to a lot of arguments today. So, you know, this is not, I mean, it was certainly on display for even longer today and in a particularly important case. But that, you know, she is a really interesting person to watch at oral argument. You can sort of see the law professor in her. She is, you know, listening very attentively and very, very focused. And you can see that the question sort of coming out in real time as the oral argument progresses and these issues and questions come up to her.

Am I hearing a protester? Are they pro or against the tariffs? They are against many things, none of which appear to have anything to do with tariffs. This was something that we talked about in the press room. There's not a lot of people protesting the tariffs. There are people who are taking advantage of the opportunity to get their other pet causes out. T'was always thus in Washington, D.C. David Latt, I will come back to you, Amy. Don't leave us, okay? Okay, I'm not going anywhere.

David Latt, something that I saw kind of repeatedly happening is this idea that, you know, the more major the question, the more power that Congress has given the president, the more hesitant the justices are going to be to greenlight. this without a clear statement, sort of a version of what we've been talking about with the major questions doctrine. And yet, we ran into several areas where the Solicitor General, for instance, was having to say, no, they meant to give this huge power, which almost, it helped and undermined his case at the same time, depending on where a justice was coming from. I was wondering how you thought he threaded that needle of, in order to win your case, you have

to say Congress gave you broad, vague powers, but to lose your case, it would be that Congress gave you broad, vague powers. I think he had a hard time threading that needle, Sarah. I totally agree with you that that was one of the pressure points in his argument. Another was this. He is arguing, and he has to, because of the language of AEPA, this emergency statute the administration is relying upon, he has to argue that these tariffs are a form of regulation

because the R word regulate appears in the statute. The tax word, the tariff word, the duty word, they do not. So he's arguing, look, these tariffs are what he calls regulatory tariffs. They're not revenue-raising tariffs. But, and Katyal threw this in his face a couple of times, in the introduction of the brief, and I think you guys highlighted this in the preview episode of Ayo, in the introduction of the brief, I think perhaps quoting President Trump,

the government rags about the trillions and trillions of dollars, the, you know, the big least stream of revenue practically that we're going to be getting from these tariffs. And so there was this tension because on the one of these, trying to say, well, you know, they're just regulatory. And then on the other hand, he's basically saying literally in the introduction of the government brief, this is about whether America is going to be a rich nation or a poor nation. Well, we're going to be a rich nation if we raise all this revenue. So I think, I think, I think, Solicitor General Sauer has a really tough road to

ho here, which is why I think ultimately his side will not prevail. David French, another, the hardest moment I thought for the Solicitor General, and we've referenced it, was with Justice Gorsuch, but it's this one part of the Justice Gorsuch, yeah, soliloquy, where they're talking about, you know, the president could always go back to Congress to get this tariff power, for instance. But if the Supreme Court says that Congress gave this broad power, Congress is never going to be able to get that back. Because if they ever tried to pass a law saying, JK, that's not what we meant. A president would veto it because this is such a huge, huge, broad power that President Trump is claiming now. I didn't feel like Sauer had a great argument

for that, except sort of shrug, that's separation of powers for you. And you had Justice Kagan follow up on that in what I thought was like, oh my gosh, I see this like grand unified theory with INSB Chata, the legislative veto, where in 1983 and a 7-2 decision, the Supreme Court held that Congress, despite passing for itself a legislative veto, could not do that, that that violated the constitutions by criminalism and presentment requirements, et cetera. But in 1977, when they write and pass AEPA, they believed that they would be able to veto how the president used this law. They then lost that in 1983. So it's too late to do anything about Aipa. And not only could they have fought that when they passed the law, now it would be nearly impossible to take back

this power? Like winning or losing or how that played in the argument itself, like, yikes, that concerns me from a separation of power's standpoint. Well, it was a fascinating line of questioning. I did not anticipate that it would go as long and as deep as it went. And then it got picked up again later on in the argument, indicating that it had some residents here. And I thought it was fascinating because it really does go to the question of, okay, if there is a check on the president, where does the check come from? And if you're just

going to blithely say to the judiciary, well, Congress, Congress is the check, right? Well, then you've got to work through, run the traps on that. Congress is the check only when it has a super majority. And if the answer then is, well, that's just the constitutional structure. And that's the answer as difficult as that might be, if you're sitting there in a judicial role saying, wait, I'm thinking this is improper. My only real question is which branch checks here? And they say, well, in reality, no branch, no branch really does in the absence of the super majority, that might be the right constitutional answer. Okay, that might be where this case ends up. I take Ramon's point very well that, like, once you move past the, the liberal,

liberal three and a lot of the really aggressive Gorsuch questioning, you get shakier and shakier from Barrett to Roberts. I literally wrote a spectrum when I was listening. It was from strong, you know, from the most strong anti-tariff to the most strong pro-tariff, and it gets shakier fast after Gorsuch. But I thought that was a very interesting line of questioning that is actually pretty interesting beyond this case, because a lot of the cases that are going to come up around things like, say, National Guard deployments, et cetera, part of the answer is going to be, wait, wait, the court is not the only sole branch to check the president here. There are other branches. And this was an example of Gorsuch diving into that deeply and saying, let's talk about that.

How effective is the check? Is it a real check? And so I thought that was absolutely fascinating. And as it was happening, I was thinking, this is really relevant for other cases that could come down the pike. So I'm glad we highlighted that. I'm not sure how it's going to cut. But it was also interesting. There was some consequentialism in there as well in other areas. Meathons, for instance, sort of the chaos that could ensue potentially. You know, the Federalist Society National Lawyers Convention is convening this week.

And I predict there's going to be a lot more conversation about INS v. Chata and the legislative veto than there would have been otherwise. Is that something that conservatives are now going to think? Boy, that's an amendment that we would all like or potentially not. But to me, it almost read as a version, a new version, maybe a third version of major questions doctrine that if the only way for Congress to take back this power is through a veto-proof majority, then we should read statutes quite narrowly because otherwise it's a one-way ratchet, basically. And so Congress, if they want to give the president that power, that's another reason.

reason for the clear statement rule if they can't ever get the power back. Amy, you've sat in on more oral arguments than probably all of us combined at this point. I'm just sort of wondering, we've talked about this spectrum of the justices, where you have Thomas, Alito, and Kavanaugh seeming pretty skeptical of the challengers. Yeah. You have the three liberal justices along with Justice Gorsuch, seeming pretty skeptical of the administration. And then Barrett and the chief in the middle,

do you agree with that reading? I agree with that. You know, and to go to Vermont, a point that Ramon made when I was listening but wasn't on yet. You know, Justice Barrett was pressing Benjamin Gutman towards the end. And, you know,

there was the question of the issue of the donut hole, like the idea that Aiepa could, authorize the president to close off imports altogether, but not to impose in the hypothetical that both Justice Kavanaugh and Justice Barrett suggested a tariff of 1% to deal with problems from another country. And both Justice Barrett and Justice Kavanaugh suggested that that, you know, why on earth would Congress intend for the president to have the greater power but not the lesser. And Benjamin Gutman first back at the beginning, and towards the end, he did, you know, point out that the president would have the power to impose tariffs under other

trade laws. And Justice Kavanaugh sort of nodded and said, good point. So I think that may address one of their concerns. I know they had other concerns as well. You know, I felt like, you know, Justice Barrett, you know, the Chief Justice, I feel like to play devil's advocate, you know, no matter what the case is. He doesn't ask a lot of questions, but when he does ask questions, you know, it's hard to tell sometimes what side he's on. You know, Barrett, I did not think, was doing that, as Ramon said, I think that she was really sort of working through this in real time. I felt like maybe her concerns were greater on the government side than on the challenger side, but, you know, that's just sort of my read on it. And Amy, just a very practical

question here. This argument lasted for nearly three hours. Do the justices ever need bathroom breaks? Do they look like they're getting tired up there? Are they just dehydrating themselves? I mean, we have several older men, and I don't know a lot about this, but I hear your, you know, prostate gets bigger. I don't know. What's going on? You know, so they, I did not see anybody take a break. Sometimes, like during the affirmative action cases, the Harvard and the UNC cases, when there are two separate cases. Sometimes the court will take a break, not for the rest of us,

but for the justices to take a little break between cases. They didn't do that today because it was just one gigantic case. I didn't see anyone. And the justices do, this is the thing that always, I don't know whether it's the right word is astounds or impresses. They get coffee delivered to them during the argument,

and I genuinely don't know how they do it. I mean, I usually stop all liquids around two hours ahead of time to make sure that I can make it through whatever comes around. There's probably more information than your viewers wanted. Sorry. They all have to go through

this single spot between the curtains behind the cheap. So if you did want to leave, it would be kind of a thing, potentially. I mean, every once in a while someone will do it. I think Justice Thomas, who is perhaps not coincidentally the oldest justice on the court, is the one who's most likely to do

it, but it's still pretty rare. Ramon, you clerked on the court. Did you ever hear talk about dehydrating yourself before oral argument? Well, I hesitate to jump into this part of the conversation. I will say, I did argue a case during COVID where they were not in the courtroom, and some have speculated that there may have been a toilet flush while I was arguing the case. So that's basically my only gliver of expertise on this subject. But something I do know a little bit more about would be the major questions doctrine.

And so I just go back. Nice pivot, Ramon. I thought the, I did want to go to one point, you know, you all were talking about some of the hypotheticals that were asked. I thought one of the most striking moments in the argument was Justice Gorsuch was very silent for a while. And then he kind of leaned in. And I think his first question was really in the seriatum questioning, you know, when they were going one by one at the end of of Solicitor General Sauer's argument. And he came in with a very hard-hitting set

of very challenging hypotheticals. And they really were all versions of the question of like, if you were right, doesn't that mean that Congress could just abdicate the field entirely on this and that and the other? And he basically, you know, I think had the SG a little bit on the ropes sort of answering, you know,

the questions about the limits of the government's theory here. You know, I think there were questions. One of the very good hypotheticals was about, you know, Congress just doesn't want to do foreign affairs anymore. And so it just delegates its entire foreign affairs power that is given to Congress under Article 1 and it gives it to the president. And it didn't sound like there was a clean answer, I thought, back from the government. And then the other hypothetical, which got play multiple times, and I think it's very powerful, was this question of, you know, imagine a Democratic administration concerned about climate change that cites a,

international climate, you know, climate change problem, climate change emergency, and decides to impose taxes or other measures to address that issue using IEPA, you know, and this very broad grant of authority. And I thought to his credit, the Solicitor General did not try to duck the hypothetical. The SG said, essentially, that there was no rule for judicial review of that, and the courts couldn't step in and stop that under the statute. But I thought it was a very telling and revealing response. Because I really think it did show to all sides of the court that the government's argument really is pretty breathtaking here. And the power that we're talking about here is very broad. And this isn't just about, you know, President Trump with with a sort of MAGA, America first

agenda pushing one set of policies. But rather, if you give any president this kind of power, it's going to lead to its exercise, whether you're on the right, the left, the middle, or either extreme. And so I thought that was a very important moment in the argument. Now streaming on Paramount Plus, it's the epic return of Mayor of Kingstown. Warden? You know who I am. Starring Academy Award nominee Jeremy Renner. I swear in these walls. Emmy Award winner Edie Falco.

You're an ex-con who ran this place for years. And now, now you can't do that. And Bafto Award winner Lenny James. You're about to have a plague of outsiders descend on your town. Let me tell you this. It's got to be consequences. Mayor of Kingstown, new season now streaming on Paramount Plus. And also an important moment when you're thinking about the Trump administration moving forward because something I've said in the Department of Justice between the Trump One Department of Justice and this Trump Department of Justice. In Trump One, we were just very aware that any, you know, special power we unlock were handing the key to the next administration. This administration does not seem to be concerned with that. And I was always curious whether they didn't bother them or whether they hadn't thought.

about it much. And to the extent John Sauer can speak on behalf of the administration, the answer is they've thought about it, they're fine with it, they believe in a much more powerful executive than almost any president of American history. Although, as Jack Goldsmith has pointed out, when we think about whatever your list of great presidents

include, you know, Jackson, Lincoln, FDR, maybe some Wilson thrown in there, like unless you're going to tell us how the Coolidge is your favorite president. All of those presidents are considered greats because they were expanding the executive branch and often were a direct challenge to the legitimacy and credibility of the court during their time as well. Okay, I've got a couple more questions for you guys. David French, because I've asked you to do this before, now that you've heard the oral argument,

if the government wins, what do you think that opinion looks like and who joins it? Yeah, I think if the government wins, it just rests on the idea that the words regulate imports are broad enough to encompass a tariff that, you know, I thought that Sauer was that as most effective. And I thought that the questions to the anti-tariff advocates were most effective when they were going into, wait a minute, you can ban. You're saying you can ban, but you couldn't put a one, say, a one-sit tax, I feel like that that was their most effective argument. And so I felt it would just be straight out,

regulate imports, is a term broad enough. And I thought that some of his better moments were when he was talking about how broad and aggressive this language is. It's very broad. It's very aggressive. It delegates a lot to the president. And then when he went ahead and just said,

you know, as you were talking about with a climate change example, he didn't try to duck it at all, he didn't try to distinguish it. It is what it is because regulate imports is broad language. And it would be almost weird to not say that tariffs are a form of regulation of imports. And so my view is it would be just that straight ahead, the term regulate is broad enough here. And then to the extent there's ambiguity and regulate imports, you have to resolve it towards the executive, is the conduct of foreign policy. So we have a broad grant from Congress combined with the Article 2 Apex and foreign policy, you know, one plus one equals two there.

And so that's how I would see it. But I'd be interested to know if others see a different path. Well, Amy, you know, David French is referencing the Youngstown framework, a famous precedent of this court, Justice Jackson, the other Justice Jackson. Justice Jackson, the first one. Got several shoutouts. A lot of the precedent could be read in favor of the administration, potentially, and yet what I heard was real grappling with, like,

well, actually, if you read it this way and this line cuts with us and this other line cuts with us, I didn't hear anyone say, that precedent's wrong, overturn it. That was at a different era. My God, we're not trying to relive the Nixon administration. And, you know, when you look back, back to the Warren court, Adam Liptack has run these numbers. Professor Adler has run these numbers as well. This court is overturning precedent at the lowest rate of any court in the modern era.

And if you just take this court, meaning these nine people since 2022, that rate drops even further. Did you think that precedent was going to matter in this case? how did that play about these, you know, Algonquin, the case that I'm forgetting, Morse and deep. Dames and Moore. Thank you. Dames and Moore was, I mean, Dames and Moore was, like, the problem with all of these cases was that everybody had an, like, both sides had an argument for why it worked for them

or it didn't work for the other side, you know, Yoshita, like it was an intermediate appeals court, and, you know, there's all kinds of arguments about what Congress was or what and doing, you know, so I think that that each side tried to take what it could, that they felt supported its position, but there weren't necessarily making, needing to make, felt like they need to make arguments about overruling anything. You know, Neo-Cathiel- better precedential argument than the other, or is precedent just not going to be that big a thing in this case? I think it's illuminating, but not dispositive. David Latt, you're muted.

Oh, sorry, sorry. Oh, in terms of the issue of precedent. Or anything you wanted to comment about. I saw your eyes lighting up a few times when David French was talking. Oh, yeah. I mean, that just happens, Sarah. That is just something that happens, you know. Oh, yes, I was very interested in David's point about how the administration would win if it were to win.

I think the administration could possibly win this. I think it would be 5'4 with Justice Gorsuch joining the Liberals. And I think that there was definitely a lot of talk about what David mentioned in terms of this kind of lesser included power. That is, if everybody agrees, including the challengers, that the president has the authority to ban imports entirely, why can't he tax them or tariff them? And Justice Alito had a very interesting hypothetical where he said, well, if we say that the National Park Service has the ability to regulate access to a really crowded park, are you saying, he said to Katyal, that the NPS National Park Service couldn't do the regulation by telling people, okay, you know what, you have to pay a fee. And the fee will naturally reduce the access to the park because some people won't want to pay the fee. And isn't that a form of regulation? So I'm not ruling out that the administration could come up with a win here. One other point I want to make.

I think we've been seeing this as binary, like administration wins or doesn't. Remember, there are two types of tariffs here. They're the so-called trafficking tariffs imposed against China and Canada and Mexico, supposedly because of all this drug trafficking that's causing an emergency. And there are the reciprocal tariffs, which are essentially imposed against, like, everybody, to address our trade imbalances. It is possible that the court, almost for kind of political or rather than purely doctrinal or legal reasons, will kind of thread the needle and say, you know what, we're going to uphold

one set of tariffs, but not the other. I mean, that kind of would be very kind of chiefy in a way. You don't want to just kind of give the whole store away to Trump, but on the other hand, you do want to assert yourself a little bit because I think it is fair to say. and lots of folks, including, you know, say Steve Lattuck, have made this point. In these big cases, it's almost a form of, you know, I know there is a very real difference between law and politics and your forthcoming book talks about that. But, you know, it's kind of like supreme politics. Like in these cases that are close and aren't purely technical, like this particular provision

of ERISA or the tax code, political considerations will seep in. The court's desire to conserve or expand it's political capital for this purpose or that. And so we could see something split. We could see one set of tariffs being upheld or not another. Or we could have an outcome where, okay, the tariffs are held on lawful, but, you know, no refunds or something like that. We could have a kind of split the difference situation. Okay, with our time remaining, I want to back out and put this case in the context of a few other things going on. One, this case versus the Biden era, Major questions, doctrine, cases. Roman, do you think that it is persuasive that, for instance, they struck down Biden's attempt to have a vaccine mandate for employees in the United States under the OSHA statute or that they struck down his student loan debt forgiveness under the Heroes Act using the major questions doctrine?

Are they going to feel squeamish about having a win for the administration? and to David's point, these like sort of, it's not partisan politics, it's sort of politics of the court, supreme politics, if you will, and having to really explain why those might be different. I heard those cases come up, but far less than I thought they would. So I think some of the commentary about the tariffs case that I've disagreed with the tenor of it, although often it's people who agree with my view of the tariffs and my client's view of the tariffs, is that like, well, you know, the court ruled against President Biden on a number of his initiatives based on the major questions doctrine, therefore it would be totally inconsistent to

uphold President Trump initiative here, despite the major questions doctrine. I think that's just way too simplistic. I really think that each case needs to be taken on its own. I think there are ways to distinguish the Biden cases from this case. The question is whether those distinctions ultimately make the difference. And I think that they don't. I think the major questions doctrine here is, you know, as the chief said in one of his early questions, you know, to Solicitor General Sauer, I think this case does implicate the major questions doctrine on its own terms, even though, yeah, it's distinguishable

from some of those early cases because of the nature of the foreign policy power and some of the history here. So I think that's right. I do think there is like a meta question that's sort of swirling around a lot of lot of the Trump-inspired separation of powers cases that the court is hearing this term and that they've been dealing with on the emergency docket, which is that, you know, this is going to be a real test case or a series of test cases to kind of put the court to its principles. And are they going to apply the principles that they've been articulating in case after

case over the last 10 years in a way that doesn't just rein in administrative power when it's President Biden, but also when it's a Republican president? And my sort of working hypothesis is that I think the court is going to apply these principles as neutrally as it can. I'm in the view of the view that law and politics are different, and they're going to strive to apply these principles in a similar fashion in different cases that come to them without regard to the fact that it's President Trump instead of President Biden. But we're going to see some evidence. There we go. This is from Justice Jackson's concurrence in Tamina, and I'm obsessed with it. I think we're going to see a lot of, a lot of sort of examples where these same kind of questions are going to come up.

And, you know, there was a striking moment in the argument when Justice Alito started teasing Neil Cotchall, who is known as a left of center lawyer for invoking these non-delegation doctrine and major question doctrine arguments that have in recent years been more associated with the conservative side. He said, you know, is this how you plan to make your, you thought you'd make your name as a lawyer on these, these sort of conservative doctrines? And Neil laughed and totally said, you know, he was 100% bought in. But I think, look, I think it's an important, he was a joke and argument, but I think it's an important principle. And I think I'm optimistic that the court is going to take the same approach to executive power that crosses the line under this administration, as they did in the last administration and as hopefully they will in the next administration too. Amy, I've got another big picture question for you, but not between Trump and Biden, but between Trump and Trump and. Trump. So we have this argument, obviously, today in the tariffs case. It was a cert grant, meaning in theory now, this case will be treated like a normal case on the docket that we may

not hear an answer to until June. I think we are more likely to hear an answer sooner than some other cases. But as it looks, it could really be decided at the end. In December, they're hearing the slaughter case. This is on the president's removal power, or rather, Congress's ability to put limits on the president's removal power. And I wonder if the Supreme Court will also be thinking sort of across this term, you know, think of it as two kids driving in the car, right? Like, Congress, keep your hands to yourself, quit poking the president by limiting his removal power. That's the president's job. And Mr. President, quit trying to steal Congress's toys. You don't get to have their tariff power just because they had some vague

statute, everyone get on your side of the car on turning this constitution right around, and that they will, as they are drafting opinions potentially for the next several months, the slaughter case will get argued during that time. And if those cases a little bit in conjunction with one another. I think that's right. I mean, but I think then we also have to think about a third case that the court is going to hear in January that has come up in Oh, we've lost you, Amy. Let's see if we can get Amy back. Amy, try to say something to us.

Nope. Amy, I'm sorry. We've lost you. Oh, wait, you're back. You're back. We can hear you. You can hear me and everyone else who's out here on the sidewalk. I mean, I think, like, but I think you want to think about they're going to be hearing,

you know, they're going to be, you know, we don't know. The Trump administration, first of all, I asked the justices to act quickly. I don't think that this means they're going to act as quickly as they did in the TikTok case where they issued an opinion in a week. But, you know, I think they're not going to be, I don't think we're going to be waiting for this one at the end of June. You know, you're right that they are going to be hearing at the beginning of December, the argument in the Rebecca Slaughter case involving the president's power to remove the heads of multi-member independent agencies. But then remember that we're also going to be back here in January when the judge. just as here, arguments in a case that is still on the emergency docket involving the president's power to remove members of the board of governors of the Federal Reserve, Lisa Cook.

And so, you know, when the Supreme Court on the emergency docket over the summer, or maybe it was in May, I think that they all blend together because we didn't really have a summer in Supreme Court land, you know, said that the president could go ahead and remove members of the national Labor Relations Board and the Merit Systems Protection Board, you know, said, oh, but the Fed is different. And so they're going to be trying to figure out how to write that opinion as well. David Latt, I want to get your view on this, both the term-to-term comparisons with the Biden administration and the intra-term comparisons, where Amy's right. They have three presidential power questions, and this is just the first one. Yeah. No, it's huge. In terms of the comparison to the Biden

administration, I actually generally agree with Ramon. I think the justices are calling the cases as they see them. And when I talk about these issues of politics coming in at the margins, I think sometimes it's almost subconscious, where the justices are almost making these sort of subconscious sort of calculations of their relation to the other branches. But I think they will focus, and they do focus very much on the text. So yeah, I And I do think it's really important to view this case in the broader context of these other cases involving the administration. And a lot of progressive critics of the court have been saying, well, why are they just rolling over for Trump and are they ever going to stop him based in large part on the emergency shadow interim short order docket? But now a lot of these cases will be coming to the court on the merits, including some of the cases involving what Amy was just discussing the power of the president to remove members of the executive branch.

And I think that's going to be a more mixed bag for the administration. So I think it will be so interesting to see what happens over these next few months. But David French, this gives the court not only to have the consistency in applying the major questions doctrine between the Biden and the Trump. terms, but also to give Trump the win, if you will, in slaughter in these cases about Congress trying to move into the president's territory. It gives them kind of a yin-yang in that way, too, to say, and the president can't move into Congress's lane either. Yeah, I think this term, you're really going to see some, the sharp distinctions between the kinds of cases that the court was reviewing and looking at in these very brief emergency docket circumstances over the summer,

and the really substantive core issues that are emerging in this term. So it's a lot less about how much power does the president have over the executive branch on this emergency short cursory basis of evaluating it where the answer has been mostly in Trump's favor because as we know, the majority of this court, I think, has a pretty high view of the executive authority over the executive branch. this isn't that, right, and birthright citizenship isn't that. Slaughter, different. Slaughter is more that. And so you're going to see the distinctions and the jurisprudence because the issues now are both sort of what you might want to call the procedural is the wrong word, but internal to the executive branch authority issues versus Article 2 authority over other branches. And how much can Article 2

to sort of warp the authority of Article 1. And that's going to be, I think you're going to see the Supreme Court staking out ground. Again, all predictions are shaky, all predictions are shaky, but they're going to see the court staking out ground that I think is hostile to the administration's extremely expansive view of executive authority when it leaks over into other branches. But when it's confined within the executive branch, I think you're going to see the court saying, that's just what the president does. The president is the executive branch. Well, after hearing all of you talk about this, I'm even less sure of how this case will come out than I went in. I felt far more confident before I heard the oral arguments. I felt less confident, but still, you know,

I was where I was going into this conversation. And now I'm leaving, throwing my hands in the air. I do think, however, in that big picture part, that when you think about Chevron doctrine, for instance, that the executive branch agencies are going to have less power to define their own scope of power, for instance. And at the same time, I think they will give the president more power over his personnel that you don't want sort of complete vertical power in an executive branch that then also has a lot of horizontal power to get extra legislative power. So giving him more control over a weaker branch makes a lot of sense to me. So, Mr. President, you have complete control of your executive branch, and also we've taken

away some of the powers of the executive branch. I think would be the best outcome of this term. Amy Howe, I remember so well you joining us in May for the birthright citizenship, universal injunction argument, and you were desperately hot with the sun baking on you. And here in November, it looks pretty chilly out there. It's actually lovely out here. Oh, really? Yeah, no, it's nice and sunny, but not too sunny.

I'm very comfortable. Who would have thought in November? I know. Well, great. Thank you so much for joining us straight from the argument. Roman Martinez for your color commentary, exactly like Tom Brady, what I was hoping for. David Latt, always best friend of the pod. And David French, my ride or die.

And thank you all advisory opinions, watchers, and listeners for joining us. Don't forget to go get your CLE credit at scotusblog.com slash CLE. And of course, you can pre-order the book, Last Branch Standing, by moi, at any of your booksellers right now. Thank you, guys. We'll see you next evening. Thank you. Oh!