Tice: In 6-3 tariffs ruling, three justices to be admired

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In last week’s ruling striking down President Donald Trump’s initial, absolutist tariff regime, the U.S. Supreme Court showed once again that it is the best performing of America’s apex institutions. It also confirmed that this isn’t saying all that much.

The high court’s check on Trump’s colossal overreach helps to shore up the nation’s constitutional order, buttressing both the much-denigrated virtue of the court and the ever-dwindling relevance of Congress.

Even so, this was judicial sausage making of an unappetizing kind. The justices extruded 170 pages of opinion, concurrence and dissent that in places leave behind an aftertaste of ideology and partisanship — just what the country is choking on already.

Economically, it may not matter that much. American tariff policy likely will remain an erratic, self-harming mess so long as Trump is president. Congress has promiscuously enacted vague statutes granting the executive branch varied powers over trade policy (like so much else). And courts have for decades deferred to agencies and their experts to interpret just how spacious their discretion is, apparently on the optimistic theory that “unelected agency officials [are] uniquely immune to the desire for more power,” as Justice Neil Gorsuch put it in a brilliant and feisty concurring opinion last week.

This overgrown “administrative state” is the essential constitutional disfigurement the court confronted in the tariff case, as it has on many other issues in recent years, and it remains in place. Trump will probably be able to concoct legal maneuvers to continue indulging his tariff fetish, at least in part.

What’s unsettling is that only three of nine justices could bring themselves to forthrightly rule that such an unsupported claim of unchecked power must be unconstitutional, no matter who is president or what policy is being imposed. The three were Roberts and Trump appointees Amy Coney Barrett and Gorsuch.

In the extraordinary concurrence mentioned above, Gorsuch laid bare the suspicious inconsistencies of six other colleagues, whether they voted with him or against him on Trump’s tariffs.

The court’s main opinion invokes what’s called the “major questions” doctrine. It’s a principle the court has mostly developed in recent years and used to rein in runaway powers of the executive branch. It means that when a president or agency under his direction claims that a statute has given the executive a “highly consequential” power, especially one involving a “core” congressional power (like the power to tax), it must be able to cite a clear and unmistakable grant of that authority.

The court applied that doctrine several times to rule against Democrat Joe Biden’s administration. For example, during the pandemic it struck down a nationwide vaccine mandate and invalidated a coast-to-coast eviction moratorium. It rejected Biden’s unilateral forgiveness of college debt. And it blocked a plan from the Obama years to combat climate change by transforming existing power plants across the country.

In every one of those cases, liberal justices Elena Kagan and Sonia Sotomayor dissented. They were joined in the college debt case by Justice Ketanji Brown Jackson, who was seated on the court in 2022. In those situations these justices backed the executive branch’s claims of new powers, rejecting the major questions doctrine with its requirement for more explicit authorizing language.

Gorsuch claims to be puzzled by this. “Dissenting in past major questions cases,” he wrote, his liberal colleagues “have argued that broad statutory language granting powers to executive officials should be read for all it is worth. Yet, now, when it comes to … similarly broad language granting powers to the President, they take a more constrained approach.”

I will hazard a solution to this mystery that Gorsuch is apparently too much of a gentleman to offer. The liberal justices may simply like some administrations and some policies better than others.

No doubt Gorsuch and the rest of us should be grateful in this instance that these justices are willing to tie themselves into logical knots when the need arises. But let’s keep the ovation brief.

As for the court’s dissenting conservatives, their contortions lack the saving virtue of landing them in the right place. In each of the cases mentioned above involving Biden policies, Justices Samuel Alito, Clarence Thomas and Brett Kavanaugh endorsed the major questions doctrine and struck down the extraordinary authority claimed by the executive branch. But faced with Trump’s unprecedented claims, they find the broad powers the statute’s language confers adequate to turn over the nation’s entire tariff policy to the president alone.

Once again, Gorsuch doesn’t speculate about motives. But it’s hard not to wonder whether political hostility to one administration and affinity to the other might have something to do with these twists and turns.

Consider: Had the justices all stayed consistent in their reasoning about ambiguous statutes and presidential powers, Trump’s tariffs still would have lost, 6-3.