The Gorsuch-Kagan Tariffs Exchange
This affects the entire country.
In this article, Steve Vladeck criticizes the argument that three conservative dissenters and three liberal justices were equally inconsistent. His objection can be summarized as:
To justices for whom any ambiguity in a statute is fatal to an executive branch claim of broad delegated power (i.e., those who have embraced the MQD), a vote to nevertheless uphold some ambiguous delegations (and/or to selectively apply the MQD to foreign relations/national security cases) is necessarily inconsistent—which was a central part of my critique of Justice Kavanaugh’s tariffs dissent in Friday’s post. But for justices who don’t think the MQD is a thing, different ambiguous statutes will often (if not usually) raise different questions depending upon the specific terms that are ambiguous and the broader (and necessarily different) contexts in which they were enacted. Simply pointing to the different outcomes in those cases and the relevant occupant of the Oval Office and then charging inconsistency is … lazy.
I agree that creating an "effects on foreign policy" exception to MQD was hypocritical of the three conservative justices, given that previous MQD cases involving COVID and climate change could also be argued to have foreign-policy implications. I'm not fully convinced, however, that merely espousing a flexible interpretive approach absolves liberal justices of the legal-realist critique.
Consider how "new originalism" makes adherence to the ratifiers' "original expectations" optional. The only constraint on judges is the linguistic meaning of the provisions, so modern originalists can argue that the Fourteenth Amendment prohibits school segregation irrespective of whether people in 1868 thought it did. Yet in cases like Dobbs, original expectation is treated as strong evidence of original meaning. This flexibility allows judges to inject their personal biases and values into the law while claiming to be faithful interpreters of the Constitution. You can read these two articles by Eric Segall for a more detailed summary of this critique.
Although the interpretive context is different, MQD is similar to "original expectations" that counsels that when the executive exploits broad or imprecise language in obscure laws in unprecedented ways, the policy is more likely than not to be illegal. But what about judges who don't accept MQD? A legal realist might argue that a flexible approach in such high-stakes cases will allow judges to rule according to their political preferences.
Suppose Justice Kavanaugh and the other three did not believe in MQD but reached the same outcomes they reached in the Biden-era cases and in the IEEPA case. Would they be free from the charge of hypocrisy? Under Vladeck's standard, the outcome need not be the best reading of the statute, merely a "reasonable" one--which, for a flexible approach, is a low bar. You can demonstrate reasonableness by pointing out that two Obama appointees on the Federal Circuit voted for Trump's reading of IEEPA.
This affects the entire country.
In this article, Steve Vladeck criticizes the argument that three conservative dissenters and three liberal justices were equally inconsistent. His objection can be summarized as:
To justices for whom any ambiguity in a statute is fatal to an executive branch claim of broad delegated power (i.e., those who have embraced the MQD), a vote to nevertheless uphold some ambiguous delegations (and/or to selectively apply the MQD to foreign relations/national security cases) is necessarily inconsistent—which was a central part of my critique of Justice Kavanaugh’s tariffs dissent in Friday’s post. But for justices who don’t think the MQD is a thing, different ambiguous statutes will often (if not usually) raise different questions depending upon the specific terms that are ambiguous and the broader (and necessarily different) contexts in which they were enacted. Simply pointing to the different outcomes in those cases and the relevant occupant of the Oval Office and then charging inconsistency is … lazy.
I agree that creating an "effects on foreign policy" exception to MQD was hypocritical of the three conservative justices, given that previous MQD cases involving COVID and climate change could also be argued to have foreign-policy implications. I'm not fully convinced, however, that merely espousing a flexible interpretive approach absolves liberal justices of the legal-realist critique.
Consider how "new originalism" makes adherence to the ratifiers' "original expectations" optional. The only constraint on judges is the linguistic meaning of the provisions, so modern originalists can argue that the Fourteenth Amendment prohibits school segregation irrespective of whether people in 1868 thought it did. Yet in cases like Dobbs, original expectation is treated as strong evidence of original meaning. This flexibility allows judges to inject their personal biases and values into the law while claiming to be faithful interpreters of the Constitution. You can read these two articles by Eric Segall for a more detailed summary of this critique.
Although the interpretive context is different, MQD is similar to "original expectations" that counsels that when the executive exploits broad or imprecise language in obscure laws in unprecedented ways, the policy is more likely than not to be illegal. But what about judges who don't accept MQD? A legal realist might argue that a flexible approach in such high-stakes cases will allow judges to rule according to their political preferences.
Suppose Justice Kavanaugh and the other three did not believe in MQD but reached the same outcomes they reached in the Biden-era cases and in the IEEPA case. Would they be free from the charge of hypocrisy? Under Vladeck's standard, the outcome need not be the best reading of the statute, merely a "reasonable" one--which, for a flexible approach, is a low bar. You can demonstrate reasonableness by pointing out that two Obama appointees on the Federal Circuit voted for Trump's reading of IEEPA.
The Gorsuch-Kagan Tariffs Exchange
This affects the entire country.
In this article, Steve Vladeck criticizes the argument that three conservative dissenters and three liberal justices were equally inconsistent. His objection can be summarized as:
To justices for whom any ambiguity in a statute is fatal to an executive branch claim of broad delegated power (i.e., those who have embraced the MQD), a vote to nevertheless uphold some ambiguous delegations (and/or to selectively apply the MQD to foreign relations/national security cases) is necessarily inconsistent—which was a central part of my critique of Justice Kavanaugh’s tariffs dissent in Friday’s post. But for justices who don’t think the MQD is a thing, different ambiguous statutes will often (if not usually) raise different questions depending upon the specific terms that are ambiguous and the broader (and necessarily different) contexts in which they were enacted. Simply pointing to the different outcomes in those cases and the relevant occupant of the Oval Office and then charging inconsistency is … lazy.
I agree that creating an "effects on foreign policy" exception to MQD was hypocritical of the three conservative justices, given that previous MQD cases involving COVID and climate change could also be argued to have foreign-policy implications. I'm not fully convinced, however, that merely espousing a flexible interpretive approach absolves liberal justices of the legal-realist critique.
Consider how "new originalism" makes adherence to the ratifiers' "original expectations" optional. The only constraint on judges is the linguistic meaning of the provisions, so modern originalists can argue that the Fourteenth Amendment prohibits school segregation irrespective of whether people in 1868 thought it did. Yet in cases like Dobbs, original expectation is treated as strong evidence of original meaning. This flexibility allows judges to inject their personal biases and values into the law while claiming to be faithful interpreters of the Constitution. You can read these two articles by Eric Segall for a more detailed summary of this critique.
Although the interpretive context is different, MQD is similar to "original expectations" that counsels that when the executive exploits broad or imprecise language in obscure laws in unprecedented ways, the policy is more likely than not to be illegal. But what about judges who don't accept MQD? A legal realist might argue that a flexible approach in such high-stakes cases will allow judges to rule according to their political preferences.
Suppose Justice Kavanaugh and the other three did not believe in MQD but reached the same outcomes they reached in the Biden-era cases and in the IEEPA case. Would they be free from the charge of hypocrisy? Under Vladeck's standard, the outcome need not be the best reading of the statute, merely a "reasonable" one--which, for a flexible approach, is a low bar. You can demonstrate reasonableness by pointing out that two Obama appointees on the Federal Circuit voted for Trump's reading of IEEPA.
0 Comments
0 Shares
34 Views
0 Reviews
