Did Justice Kavanaugh lie in his dissent in the tariff case to offer “alternative” options to Trump?
Every delay has consequences.
In footnote 25 of Kavanaugh’s dissent, he rejected arguments that Section 122 displaces IEEPA’s tariff authority in cases of trade imbalances, citing Judge Taranto’s "persuasive" dissent. In doing so, he describes Section 122 as “a statute that addresses trade deficits.”
The plaintiffs also raise two other arguments that the Court today does not address or rely on. First, they argue that Section 122, a non-emergency tariff statute that addresses trade deficits, implicitly displaces IEEPA’s tariff authority. ... In my view, those arguments are insubstantial, as Judge Taranto persuasively explained in the Federal Circuit. See 149 F. 4th 1312, 1359–1361, 1371–1375 (2025) (dissenting opinion).
Here's the issue: the persuasive explanation in Judge Taranto’s dissent was that Section 122 references a "balance-of-payments deficit," which is distinct from a "trade deficit." In some circumstances trade deficits could lead to BOP deficits but that was not primary purpose. Taranto's reasoning:
Under this language, the necessary threshold condition for application of this provision is the existence of “fundamental international payments problems.” Id. (emphasis added) ... [S]ection 122 and IEEPA do not contradict each other regarding the circumstances presented by the reciprocal tariffs. Of course, for certain goods trade deficits, both statutes might apply—but a goods trade deficit alone is not enough for application of either IEEPA or section 122. As already discussed, see supra at pp. 25–28, problems may or may not arise from goods trade deficits at all, and different kinds of problems may arise separately and at different times. Here, the problems addressed by the reciprocal tariffs (imposed under IEEPA) are not the problems addressed by the terms of section 122, and that is reason enough to conclude that section 122 does not displace IEEPA’s coverage to the reciprocal tariffs.
[...]
A textbook from the time explains balance-of-payments accounting. P. KENEN & R. LUBITZ, INTERNATIONAL ECONOMICS at 52–78 (3d ed. 1971). It breaks down the ledger of this “double-entry bookkeeping” system into a “current” account showing “flows of goods and services” and a “capital” account showing “lending and investment” on one side and a “cash” account showing “how cash balances and short-term claims have changed in response to current and capital transactions” on the other, the two sides having to balance because “[a]ll current and capital account transactions must have cash or credit counterparts.” Id. at 53– 55; see also CIT Op. at 1375. Trade in goods is therefore just one part of the set of transactions covered by the overall balance of payments, which also includes services and capital investments (on the transactions side of the ledger) and payments (on the payments side). Compare § 122(a) (referring to “balance-of-payments”) with § 122(c) (referring to “balance-of-trade”); see S. Rep. No. 93-1298, at 87–89 (explaining change of terminology); H. R. Rep. No. 93-1644, at 27 (1974) (acknowledging and receding to Senate’s change of terminology).
If he does not accept this reasoning, the case for displacement surely wouldn't be "insubstantial."
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EDIT: My point …
Every delay has consequences.
In footnote 25 of Kavanaugh’s dissent, he rejected arguments that Section 122 displaces IEEPA’s tariff authority in cases of trade imbalances, citing Judge Taranto’s "persuasive" dissent. In doing so, he describes Section 122 as “a statute that addresses trade deficits.”
The plaintiffs also raise two other arguments that the Court today does not address or rely on. First, they argue that Section 122, a non-emergency tariff statute that addresses trade deficits, implicitly displaces IEEPA’s tariff authority. ... In my view, those arguments are insubstantial, as Judge Taranto persuasively explained in the Federal Circuit. See 149 F. 4th 1312, 1359–1361, 1371–1375 (2025) (dissenting opinion).
Here's the issue: the persuasive explanation in Judge Taranto’s dissent was that Section 122 references a "balance-of-payments deficit," which is distinct from a "trade deficit." In some circumstances trade deficits could lead to BOP deficits but that was not primary purpose. Taranto's reasoning:
Under this language, the necessary threshold condition for application of this provision is the existence of “fundamental international payments problems.” Id. (emphasis added) ... [S]ection 122 and IEEPA do not contradict each other regarding the circumstances presented by the reciprocal tariffs. Of course, for certain goods trade deficits, both statutes might apply—but a goods trade deficit alone is not enough for application of either IEEPA or section 122. As already discussed, see supra at pp. 25–28, problems may or may not arise from goods trade deficits at all, and different kinds of problems may arise separately and at different times. Here, the problems addressed by the reciprocal tariffs (imposed under IEEPA) are not the problems addressed by the terms of section 122, and that is reason enough to conclude that section 122 does not displace IEEPA’s coverage to the reciprocal tariffs.
[...]
A textbook from the time explains balance-of-payments accounting. P. KENEN & R. LUBITZ, INTERNATIONAL ECONOMICS at 52–78 (3d ed. 1971). It breaks down the ledger of this “double-entry bookkeeping” system into a “current” account showing “flows of goods and services” and a “capital” account showing “lending and investment” on one side and a “cash” account showing “how cash balances and short-term claims have changed in response to current and capital transactions” on the other, the two sides having to balance because “[a]ll current and capital account transactions must have cash or credit counterparts.” Id. at 53– 55; see also CIT Op. at 1375. Trade in goods is therefore just one part of the set of transactions covered by the overall balance of payments, which also includes services and capital investments (on the transactions side of the ledger) and payments (on the payments side). Compare § 122(a) (referring to “balance-of-payments”) with § 122(c) (referring to “balance-of-trade”); see S. Rep. No. 93-1298, at 87–89 (explaining change of terminology); H. R. Rep. No. 93-1644, at 27 (1974) (acknowledging and receding to Senate’s change of terminology).
If he does not accept this reasoning, the case for displacement surely wouldn't be "insubstantial."
----
EDIT: My point …
Did Justice Kavanaugh lie in his dissent in the tariff case to offer “alternative” options to Trump?
Every delay has consequences.
In footnote 25 of Kavanaugh’s dissent, he rejected arguments that Section 122 displaces IEEPA’s tariff authority in cases of trade imbalances, citing Judge Taranto’s "persuasive" dissent. In doing so, he describes Section 122 as “a statute that addresses trade deficits.”
The plaintiffs also raise two other arguments that the Court today does not address or rely on. First, they argue that Section 122, a non-emergency tariff statute that addresses trade deficits, implicitly displaces IEEPA’s tariff authority. ... In my view, those arguments are insubstantial, as Judge Taranto persuasively explained in the Federal Circuit. See 149 F. 4th 1312, 1359–1361, 1371–1375 (2025) (dissenting opinion).
Here's the issue: the persuasive explanation in Judge Taranto’s dissent was that Section 122 references a "balance-of-payments deficit," which is distinct from a "trade deficit." In some circumstances trade deficits could lead to BOP deficits but that was not primary purpose. Taranto's reasoning:
Under this language, the necessary threshold condition for application of this provision is the existence of “fundamental international payments problems.” Id. (emphasis added) ... [S]ection 122 and IEEPA do not contradict each other regarding the circumstances presented by the reciprocal tariffs. Of course, for certain goods trade deficits, both statutes might apply—but a goods trade deficit alone is not enough for application of either IEEPA or section 122. As already discussed, see supra at pp. 25–28, problems may or may not arise from goods trade deficits at all, and different kinds of problems may arise separately and at different times. Here, the problems addressed by the reciprocal tariffs (imposed under IEEPA) are not the problems addressed by the terms of section 122, and that is reason enough to conclude that section 122 does not displace IEEPA’s coverage to the reciprocal tariffs.
[...]
A textbook from the time explains balance-of-payments accounting. P. KENEN & R. LUBITZ, INTERNATIONAL ECONOMICS at 52–78 (3d ed. 1971). It breaks down the ledger of this “double-entry bookkeeping” system into a “current” account showing “flows of goods and services” and a “capital” account showing “lending and investment” on one side and a “cash” account showing “how cash balances and short-term claims have changed in response to current and capital transactions” on the other, the two sides having to balance because “[a]ll current and capital account transactions must have cash or credit counterparts.” Id. at 53– 55; see also CIT Op. at 1375. Trade in goods is therefore just one part of the set of transactions covered by the overall balance of payments, which also includes services and capital investments (on the transactions side of the ledger) and payments (on the payments side). Compare § 122(a) (referring to “balance-of-payments”) with § 122(c) (referring to “balance-of-trade”); see S. Rep. No. 93-1298, at 87–89 (explaining change of terminology); H. R. Rep. No. 93-1644, at 27 (1974) (acknowledging and receding to Senate’s change of terminology).
If he does not accept this reasoning, the case for displacement surely wouldn't be "insubstantial."
----
EDIT: My point …
