Five Lessons from the Tariff Case

What can the case teach us about litigating environmental cases against Trump?

Learning Resources v. Trump, the recent tariff ruling, doesn’t say anything directly about environmental cases.  But there are a series of useful lessons for environmental litigators. One obvious one is that the conservatives aren’t all “in the tank” for Trump (though Alito and maybe Thomas seem have gone pretty MAGA).  Trump’s nasty insults of the conservatives who ruled against him probably won’t bring them back onto the Trump train. His effusive praise for the three conservatives who voted for the tariffs may even increase frictions within the supermajority. Here are five more lessons.

The conservative supermajority is not a monolith. Roberts and Barretts are the best bets to break with the Right in any given case.  Kavanaugh and Gorsuch are the next most likely.  Even when they agree on the results, the conservatives sometimes having trouble agreeing on a theory.  Litigators of major deregulations should be thinking from the time a case is filed in the lower courts about which conservatives Justices they want to get on board and how.

The major question doctrine is a mess (and getting worse).  The conservatives were all over the place in interpreting the doctrine.  Thomas thinks it applies only to regulation of private parties (and only to a subset of those).  He, Thomas, and Alito think it doesn’t apply to anything relating to national security or foreign affairs (which in Trump’s view is almost everything).  Barrett and Gorsuch agreed that the doctrine applied in the tariff case but couldn’t agree on what it means to apply the doctrine.  That’s on top of the fact that, rather than having a test for determining what actions are “major,” the conservatives have only a series of adjectives like “vast,” “transformative,” and “unprecedented.”

 Textualism is also a mess.  Roberts, Gorsuch, and Barrett agreed with the three liberals that the statute in question (IEEPA) clearly did not authorize tariffs.  The other three conservatives thought it was crystal clear that it did.  All of them are textualists, who think that interpreting a statute is just about parsing its language. Textualism turns out to be no more constraining than any other method of statutory interpretation.

The Supreme Court is still boss.  There’s been speculation that Trump might refuse to obey a Supreme Court opinion he didn’t like. But he instantly caved to this one.

Conservatives and executive power — “it’s complicated.”  The conservatives have been a solid block in cases involving the President’s control of the executive branch. But at least the three who signed onto the Roberts opinion have definite qualms about the risks of unchecked executive action. Gorsuch is especially explicit about this concern, but it’s not far from the surface in Roberts’s opinion.  Thomas and Alito are keen believers in presidential power, at least when the President is a Republican. Kavanaugh’s views seem fuzzier at this point, at least as they would apply to purely domestic regulation.

There’s no doubt that the Supreme Court is not a friendly forum for environmental claims.  But we shouldn’t give up on the possibility of success.

administrative law, democracy, executive power, judicial review, Learning Resources v. Trump, major questions doctrine, presidential power, Supreme Court, Trump Administration