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The cases are unrelated, but the court’s key arguments are similar.

Even Kavanaugh Ready to Strike Trump’s Move on Lisa Cook

Let’s review the key idea from my post The Supreme Court, Even Kavanaugh, Ready to Strike Trump’s Move on Lisa Cook

JUSTICE KAVANAUGH: And why is that [Fed] independence important in your view?
GENERAL SAUER: For — I — I don’t — we don’t dispute the importance of that for many of the reasons that their amici say, but we emphasize that there’s a balance struck here. This is not a ironclad “you can never be removed.” There is a cause removal authorized in –
JUSTICE KAVANAUGH: But, on that, your position that there’s no judicial review, no process required, no remedy available, a very low bar for cause that the president alone determines, I mean, that would weaken, if not shatter, the independence of the Federal Reserve that we just discussed.
GENERAL SAUER: We disagree with that.
JUSTICE KAVANAUGH: Let’s talk about the real-world downstream effects of this because, if this were set as a precedent, it seems to me, just thinking big picture, what goes around comes around. All of the current president’s appointees would likely be removed for cause on January 20th, 2029, if there’s a Democratic President or January 20th, 2033, and then we’re really at at-will removal. So what are we doing here?
GENERAL SAUER: Yeah.
JUSTICE KAVANAUGH: What is — you know, we started — that’s why I started with what’s the purpose of the independence in the for-cause removal. If we accept all these no procedure, no judicial review, no remedy, you know, that’s what’s going to happen, I think, and then — then where are we? So do you dispute that that is, you know, the — the real-world effect?
GENERAL SAUER: I cannot predict what future presidents may or may not do, but the argument strikes me as a policy argument —
JUSTICE KAVANAUGH: Well, history is a pretty good guide. Once these tools are unleashed, they are used by both sides and usually more the second time around. We have to be aware of what we’re doing and the consequences of your
position for the structure of the government.

Please read that last paragraph by Justice Kavanaugh again so that it sinks in.

Let’s now look at oral arguments on IEEPA Tariffs. But this time let’s look at the arguments made by justices Gorsuch and Barrett.

Please consider my November 16, 2025 post What Are the Odds the Supreme Court Rules Against Trump on Tariffs?

JUSTICE GORSUCH: I want you to explain to me how you draw the line, because you say we shouldn’t be concerned because this is foreign affairs, the President has inherent authority, and so delegation off the books more or less. And if that’s true, what would — what would prohibit Congress from just abdicating all responsibility to regulate foreign commerce, for that matter, declare war to the President?
GENERAL SAUER: We don’t contend that he could do that. If it did —

JUSTICE GORSUCH: Why not?
GENERAL SAUER: Well, because we’re dealing with a statute, again, that has a whole list of limitations.

JUSTICE GORSUCH: I’m not asking about the statute. General, I’m not asking about the statute. I’m asking for your theory of the Constitution and why the major questions and nondelegation, what bite it would have in that case.
GENERAL SAUER: Yes. I would say by then you would move from the area where there’s enormous deference to the President in actually both the political branches, where, here, there’s inherent authority, and pile on top of that there’s a broad delegation of the duty and —

JUSTICE GORSUCH: You’re saying there’s inherent authority in foreign affairs, all foreign affairs, so regulate commerce, duties and — and — and — and tariffs and war. It’s inherent authority all the way down, you say. Fine. Congress decides tomorrow, well, we’re tired of this legislating business. We’re just going to hand it all off to the President. What would stop Congress from doing that?
GENERAL SAUER: That would be different than a situation where there are metes and bounds, so to speak. It would be a wholesale abdication.

JUSTICE GORSUCH: You say we — we — we are not here to judge metes and bounds when the foreign affairs. That’s what I’m struggling with. You’d have to have some test. And if it isn’t the intelligible principle test or something more — with more bite than that, you’re saying it’s something less. Well, what is that less?
GENERAL SAUER: I think what the Court has said in its opinions is just that it applies with much less force, more limited application in this context.

JUSTICE GORSUCH: All right. So now you’re admitting that there is some nondelegation principle at play here and, therefore, major questions as well, is that right?
GENERAL SAUER: If so, very limited, you know, very, very deferential — and limited is what — and, again, the phrase that Justice Jackson used is it just does not apply, at least

JUSTICE GORSUCH: I know, but that’s where you started off, and now you’ve retreated from that as I understand it.
GENERAL SAUER: Well, I think we would as our frontline position assert a stronger position, but if the Court doesn’t accept it, then, if there is a highly deferential version –

JUSTICE GORSUCH: Can you give me a reason to accept it, though? That’s what I’m struggling and waiting for. What’s the reason to accept the notion that Congress can hand off the power to declare war to the President?
GENERAL SAUER: Well, we don’t contend that. Again, that would be —

JUSTICE GORSUCH: Well, you do. You say it’s unreviewable, that there’s no manageable standard, nothing to be done. And now you’re — I think you — tell me if I’m wrong. You’ve backed off that position.
GENERAL SAUER: Maybe that’s fair to say.

JUSTICE GORSUCH: Okay. All right. Thank you. (Laughter.)
GENERAL SAUER: Because that would be, I think, an abdication. That would really be an abdication, not a delegation.

JUSTICE GORSUCH: I’m delighted to hear that, you know. Okay. All right. And then I wanted to return to something Justice Sotomayor asked under this statute, okay, so now we’re in this statute. It’s a major questions question, though. Could the President impose a 50-percent tariff on gas-powered cars and auto parts to deal with the unusual and extraordinary threat from abroad of climate change?
GENERAL SAUER: It’s very likely that that could be done, very likely.

Mish Interjection: Sauer just admitted to Justice Gorsuch that the president could impose a 50-percent tariff on gas-powered cars and auto parts to deal with the unusual and extraordinary threat from abroad of climate change. Is that what you want?

GENERAL SAUER: [Long hard to understand rant]

JUSTICE GORSUCH: General, if I can cut through those words, I think you’re saying that, no, the President doesn’t have inherent authority over tariffs in peacetime. GENERAL SAUER: Absolutely. That is — We do not assert that. We say that Congress can delegate that to him. And when Congress does so, as it does when it uses the frayed — phrase “regulate importation” —

JUSTICE GORSUCH: Okay. You emphasize that Congress can always take back its powers. You mentioned that a couple of times. But don’t we have a serious retrieval problem here because, once Congress delegates by a bare majority and the President signs it — and, of course, every president will sign a law that gives him more authority — Congress can’t take that back without a super majority. And even — you know, even then, it’s going to be veto-proof. What president’s ever going to give that power back? A pretty rare president. So how — how should that inform our view of delegations and major questions?
GENERAL SAUER: I would look at the balance that Congress struck because what Congress did, initially, it had a two-House legislative veto that was held unconstitutional in Chadha —

JUSTICE GORSUCH: And we struck that down, yeah.
GENERAL SAUER: — and then Congress went back to the statute and amended it.

JUSTICE GORSUCH: Fair enough. As a practical matter, in the real world, it can never get that power back.
GENERAL SAUER: I disagree because, in January of 2023, Congress voted to terminate one of the biggest IEEPA emergencies ever, the COVID emergency, and the President went along with that.

JUSTICE GORSUCH: But what happens when the President simply vetoes legislation to try to take these powers back?
GENERAL SAUER: Well, he has the authority to veto legislation to terminate a national emergency, for example. I mean, he retains the powers in the background because IEEPA is still on the books, but if he declares an emergency and Congress doesn’t like it and passes a joint resolution, yes, he can absolutely veto that. Congress was —

JUSTICE GORSUCH: Yeah. So Congress, as a practical matter, can’t get this power back once it’s handed it over to the President. It’s a one-way ratchet toward the gradual but continual accretion of power in the executive branch and away from the people’s elected representatives.

JUSTICE BARRETT: Okay. Then a question just to follow up on Justice Gorsuch’s thing about how could Congress ever get this delegation back, you said, well, listen, you point to the — Congress’s ability to terminate emergencies, which it’s done. But, if Congress ever wanted to get the tariffing power back, it would have to have a veto-proof majority because, regardless of the emergency, so if Congress wanted to reject the — let’s say that we adopt your interpretation of the statute. If Congress said, whoa, we don’t like that, that gives a president too much authority under IEEPA, it’s going to have a very hard time pulling the tariff power out of IEEPA, correct?
GENERAL SAUER: Well, I don’t know if it wouldn’t be a hard time. Certainly, we’d have to have a statutory amendment —
JUSTICE BARRETT: Well, veto —
GENERAL SAUER: — which would be true of any case this Court definitively interprets the statute, yes, I think that the Court — Congress have to pass a statutory —
JUSTICE BARRETT: But — but definitively interpreting a statute that grants presidential power makes it particularly hard to get the President to not want to veto something, which, as Justice was pointing out — Justice Gorsuch was pointing out, has him lose power.

Kavanaugh, Gorsuch, Barrett

• Kavanaugh (Lisa Cook): Well, history is a pretty good guide. Once these tools are unleashed, they are used by both sides and usually more the second time around. We have to be aware of what we’re doing and the consequences of your position for the structure of the government.
• Gorsuch (Tariffs) : So Congress, as a practical matter, can’t get this power back once it’s handed it over to the President. It’s a one-way ratchet toward the gradual but continual accretion of power in the executive branch and away from the people’s elected representatives.
• Barrett (Tariffs): But, if Congress ever wanted to get the tariffing power back, it would have to have a veto-proof majority because, regardless of the emergency, so if Congress wanted to reject the — let’s say that we adopt your interpretation of the statute. If Congress said, whoa, we don’t like that, that gives a president too much authority under IEEPA, it’s going to have a very hard time pulling the tariff power out of IEEPA, correct?

All of the above statements relate to powers once ceded to the executive, can never be reclaimed without a veto-proof majority.

Kavanaugh fears a ping-pong, Gorsuch sees it as a a one-way ratchet which logically implies a ping-pong (for whatever purpose) to the party in power.

Barrett agrees with Gorsuch, also noting the need for a veto-proof majority.

Conclusion

If Kavanaugh applied the same logic he used in the Lisa Cook case to tariffs, he would vote against Trump again.

That is an observation not a prediction.

Those rooting for Trump are rooting for higher taxes, fewer jobs, and God only knows what the next time we have a Democrat for a president.

Solicitor General Sauer explicitly admitted that.

Gorsuch: Could the President impose a 50-percent tariff on gas-powered cars and auto parts to deal with the unusual and extraordinary threat from abroad of climate change?
GENERAL SAUER: It’s very likely that that could be done, very likely.

Changing Odds

The odds plunged from 43 percent before the Supreme Court oral arguments to 21 percent, then to 32 percent, back to 21 percent and now 31 percent again.

This appears to be noise more than anything else.

Why the Delay?

I was pretty confident there would be a decision in January. Well, that has come and gone. The next chance now is February 20.

The conventional wisdom is the longer the delay, the more likely Trump wins.

I don’t believe that’s true.

My constitutional expert friend made this comment: “All justices have right to respond to whatever any other justice writes in an opinion. This back-and-forth can take quite a long time.“

Add to that observation, Chief Justice Roberts will want the opinion written in a way that is least upsetting to Trump as possible.

Finally, the Court may be wrestling not with the opinion itself, but the process of refunds, if any, and who controls them.

Those are three good explanations, and they can all be true.

For a justice-by-justice analysis, please see What Are the Odds the Supreme Court Rules Against Trump on Tariffs?

I am sticking with 75 percent chance Trump loses. The delay does not change my mind.

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