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Tag: statutory interpretation

  • The Supreme Court’s tariff decision vindicates the rule of law and the separation of powers

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    On Friday, hours after the Supreme Court ruled that President Donald Trump had no tariff authority under the International Emergency Economic Powers Act (IEEPA), he invoked a different law to impose “a temporary import surcharge of 10 percent,” later raised to 15 percent. Trump suggested he also might impose tariffs under four other statutes, some of which he has used before.

    Despite that seemingly quick recovery from a decision that Trump called “terrible” and “deeply disappointing,” the IEEPA ruling undeniably complicated his economically illiterate trade war. More importantly, it upheld the rule of law and the separation of powers by rejecting Trump’s audacious claim that the 1977 law, which does not even mention import taxes and had never before been used to impose them, gave him the previously unnoticed authority to completely rewrite the tariff schedule approved by Congress.

    Trump maintained that IEEPA authorizes the president to impose any taxes he wants on any imports he chooses from any country he decides to target for any length of time he considers appropriate whenever he deems it necessary to “deal with” an “unusual and extraordinary threat” from abroad that constitutes a “national emergency.” And according to Trump, Chief Justice John Roberts noted, “the only way of restraining the exercise of that power” is the “veto-proof majority in Congress” required to terminate the supposed emergency.

    The Constitution unambiguously gives Congress the power to “lay and collect taxes, duties, imposts and excises.” If Congress meant to delegate that authority to the president as completely as Trump claimed, the Supreme Court reasoned, it would have said so.

    “When Congress grants the power to impose tariffs, it does so clearly and with careful constraints,” Roberts noted. “It did neither here.”

    In other words, the very statutes to which Trump resorted after his Supreme Court defeat provide compelling evidence that Congress did not grant him the extraordinary powers he claimed under IEEPA. Among other things, those laws authorize tariffs to protect “national security,” counter allegedly discriminatory trade practices, help U.S. manufacturers “adjust” to foreign competition, and alleviate “fundamental international payments problems.”

    These provisions cover a lot of territory, and their use is often dubious. But all of them restrict presidential action by specifying acceptable rationales, requiring agency investigations, or limiting the size, scope, or duration of tariff hikes.

    Trump’s attempt to avoid those “careful constraints” prompted a richly deserved rebuke. Roberts, a George W. Bush appointee, concluded that Trump’s reading of IEEPA ran afoul of the “major questions” doctrine, which says the executive branch can exercise delegated powers of “vast ‘economic and political significance’” only with clear congressional approval.

    Two Trump appointees, Justices Neil Gorsuch and Amy Coney Barrett, agreed that the president could not meet that test. “The Constitution lodges the Nation’s lawmaking powers in Congress alone, and the major questions doctrine safeguards that assignment against executive encroachment,” Gorsuch explained in his concurring opinion.

    Under that doctrine, “the President must identify clear statutory authority for the extraordinary delegated power he claims,” Gorsuch wrote. “That is a standard he cannot meet,” Gorsuch continued, because Congress “did not clearly surrender to the President the sweeping tariff power he seeks to wield.”

    The three Democratic appointees on the Court—Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson—saw no need to rely on the major questions doctrine. But they agreed that the IEEPA cannot reasonably be read as conferring the untrammeled authority that Trump perceived.

    By joining Sotomayor, Kagan, and Jackson in rejecting his power grab, Trump averred, Gorsuch and Barrett became “an embarrassment to their families,” revealing themselves as “fools and lapdogs for the RINOs and the radical-left Democrats.” But that assessment had nothing to do with the quality of their reasoning.

    Trump’s condemnation instead hinged on the fact that Gorsuch and Barrett had the temerity to vote against the president who appointed them. Unlike Trump, they understand that justices have a higher duty than obedience to the president’s will.

    © Copyright 2025 by Creators Syndicate Inc.

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    Jacob Sullum

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  • Trump has a habit of asserting broad, unreviewable authority

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    In separate attacks this month, the U.S. military blew up two speedboats in the Caribbean Sea, killing 14 alleged drug smugglers. Although those men could have been intercepted and arrested, President Donald Trump said he decided summary execution was appropriate as a deterrent to drug trafficking.

    To justify this unprecedented use of the U.S. military to kill criminal suspects, Trump invoked his “constitutional authority as Commander in Chief and Chief Executive” to protect “national security and foreign policy interests.” That assertion of sweeping presidential power fits an alarming pattern that is also apparent in Trump’s tariffs, his attempt to summarily deport suspected gang members as “alien enemies,” and his planned use of National Guard troops to fight crime in cities across the country.

    Although Trump described the boat attacks as acts of “self-defense,” he did not claim the people whose deaths he ordered were engaged in literal attacks on the United States. His framing instead relied on the dubious proposition that drug smuggling is tantamount to violent aggression.

    While that assumption is consistent with Trump’s often expressed desire to kill drug dealers, it is not consistent with the way drug laws are ordinarily enforced. In the absence of violent resistance, a police officer who decided to shoot a drug suspect dead rather than take him into custody would be guilty of murder.

    That seems like an accurate description of the attacks that Trump ordered. Yet he maintains that his constitutional license to kill, which apparently extends to civilians he views as threats to U.S. “national security and foreign policy interests,” transforms murder into self-defense.

    Trump has asserted similarly broad authority to impose stiff, ever-changing tariffs on goods imported from scores of countries. Last month, the U.S. Court of Appeals for the Federal Circuit rejected that audacious power grab, saying it was inconsistent with the 1977 statute on which Trump relied.

    The Federal Circuit said the International Emergency Economic Powers Act (IEEPA), which does not mention import taxes at all and had never before been used to impose them, does not give the president “unlimited authority” to “revise the tariff schedule” approved by Congress. The appeals court added that “the Government’s understanding of the scope of authority granted by IEEPA would render it an unconstitutional delegation.”

    Trump’s invocation of the Alien Enemies Act (AEA) against alleged members of the Venezuelan gang Tren de Aragua has also run into legal trouble. This month, the U.S. Court of Appeals for the 5th Circuit concluded that Trump had erroneously relied on a nonexistent “invasion or predatory incursion” to justify his use of that 1798 statute.

    Trump argued that the courts had no business deciding whether he had complied with the law. “The president’s determination that the factual prerequisites of the AEA have been met is not subject to judicial review,” Deputy Assistant Attorney General Drew Ensign told the 5th Circuit.

    Trump took a similar position in the tariff case. As an opposing lawyer noted, it amounted to the claim that “the president can do whatever he wants, whenever he wants, for as long as he wants, so long as he declares an emergency.”

    Trump also thinks his presidential powers include a mandate to protect public safety by deploying the National Guard, with or without the approval of state or local officials. In pursuing that plan, he claimed at a Cabinet meeting last month, he has “the right to do anything I want to do,” because “I’m the president of the United States.”

    As Trump sees it, that means “if I think our country is in danger—and it is in danger in these cities—I can do it.” In effect, Trump is asserting the sort of broad police power that the Constitution reserves to the states.

    If Trump’s crime-fighting plan provokes legal challenges, he is apt to argue that his authority is not only vast but unreviewable. That dangerous combination is emerging as a hallmark of his administration.

    © Copyright 2025 by Creators Syndicate Inc.

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    Jacob Sullum

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  • The rationale for the federal circuit’s ‘radical left’ tariff decision is fundamentally conservative

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    After the U.S. Court of Appeals for the Federal Circuit ruled against his tariffs last week, President Donald Trump repeatedly condemned the decision, which he preposterously warned will ruin the country unless it is overturned by the Supreme Court. “It would be a total disaster for the Country,” Trump wrote in a Truth Social post on Friday. “If allowed to stand, this Decision would literally destroy the United States of America.” He reiterated that claim on Sunday: “Our Country would be completely destroyed, and our military power would be instantly obliterated,” he said, adding that “we would become a Third World Nation, with no hope of GREATNESS again.”

    Trump’s prophecies of doom were not the only implausible aspect of his comments. He described the appeals court as “Highly Partisan,” implying that its reasoning was driven by political affiliation, and said the majority was “a Radical Left group of judges,” implying that the result was dictated by ideology rather than a careful consideration of the facts and the law. Trump reflexively criticizes judges who rule against him in language like this, to the point that he has stripped ideological labels of all meaning. In this case, his complaints are especially hard to take seriously.

    The Federal Circuit’s tariff decision addressed two lawsuits, one brought by several businesses and one filed by a dozen states. Both sets of plaintiffs argued that Trump exceeded his statutory authority when he relied on the International Emergency Economic Powers Act (IEEPA) to impose stiff taxes on imports from scores of countries.

    Seven members of the 11-judge panel agreed. And while it is true that six of those judges were appointed by Democratic presidents (Bill Clinton, Barack Obama, and Joe Biden), the majority also included Alan D. Lourie, who was nominated by George H.W. Bush in 1990. Notably, Lourie was also one of four judges who went further than the majority, arguing that IEEPA “does not authorize the President to impose any tariffs” (emphasis added).

    Four judges dissented, saying the plaintiffs “have not justified summary judgment in their favor on either statutory or constitutional grounds.” Two of the dissenters were appointed by George W. Bush, and two were appointed by Obama.

    These breakdowns do not support Trump’s contention that the judges chose sides based on partisan considerations, as opposed to an honest assessment of the statutory and constitutional issues. That explanation looks even less plausible as applied to the May 28 Court of International Trade (CIT) decision that the Federal Circuit reviewed. Three CIT judges, including one nominated by Ronald Reagan and one nominated by Trump himself, unanimously concluded that the president’s tariffs were not authorized by IEEPA.

    When you consider the reasoning underlying these decisions, the claim that they can be explained only by anti-Trump animus or allegiance to a “Radical Left” ideology looks even sillier. Both courts noted that Trump’s use of IEEPA, which does not mention tariffs at all, was unprecedented and involved an assertion of authority that implicated the “major questions” doctrine, which aims to uphold the separation of powers.

    According to the Supreme Court, that doctrine applies when the executive branch asserts powers of vast “economic and political significance.” In such cases, “the Government must point to ‘clear congressional authorization’ for that asserted power,” the Federal Circuit noted. “The tariffs at issue in this case implicate the concerns animating the major questions doctrine as they are both ‘unheralded’ and ‘transformative.’” The Supreme Court “has explained that where the Government has ‘never previously claimed powers of this magnitude,’ the major questions doctrine may be implicated.”

    Trump claimed to have discovered a heretofore unnoticed delegation of unlimited tariff authority in a statute that is nearly half a century old. That claim, the Federal Circuit concluded, “runs afoul of the major questions doctrine.”

    Far from the invention of “Radical Left” judges, the major questions doctrine stems from a series of Supreme Court decisions spearheaded by conservative justices. The late Antonin Scalia, whom Trump has described as the very model of a “great” jurist, explained the rationale for the doctrine this way in the 2001 case Whitman v. American Trucking Associations: “Congress, we have held, does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes.”

    The Supreme Court has applied that logic in several decisions rejecting assertions of agency authority, including the Food and Drug Administration’s attempt to regulate tobacco products without explicit congressional authorization, the national eviction moratorium imposed by the Centers for Disease Control and Prevention in response to the COVID-19 pandemic, the COVID-19 vaccine mandate that the Occupational Safety and Health Administration tried to impose on employers in 2021, and the Biden administration’s student debt relief plan. Whatever you might think of those decisions, they are hardly evidence of a “Radical Left” mindset.

    As in those cases, the central question in the tariff case was whether Congress had actually delegated the broad powers claimed by the executive branch. Another issue was whether Congress could, consistent with the Constitution’s separation of powers, delegate such authority. In addition to concluding that IEEPA did not authorize Trump’s tariffs, the Federal Circuit noted that “the Government’s understanding of the scope of authority granted by IEEPA would render it an unconstitutional delegation.”

    The rationale for that ruling is not, by any stretch of the imagination, the product of “Radical Left” thinking. It is conservative in the best sense, aiming to preserve the structure of government established by the Constitution.

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    Jacob Sullum

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  • The federal circuit’s tariff ruling highlights the audacity of Trump’s power grab

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    In ruling against the sweeping tariffs that President Donald Trump purported to impose under the International Emergency Economic Powers Act (IEEPA), the U.S. Court of Appeals for the Federal Circuit did not settle the question of whether that law authorizes import taxes. Nor did it uphold the injunction that the Court of International Trade (CIT) issued against the tariffs on May 28. But the Federal Circuit agreed with the CIT that the tariffs are unlawful, and its reasoning highlights the audacity of Trump’s claim that IEEPA empowers him to completely rewrite tariff schedules approved by Congress.

    The decision addresses two challenges to Trump’s tariffs, one brought by several businesses and one filed by a dozen states. Both sets of plaintiffs argued that Trump had illegally seized powers that belong to Congress.

    The Constitution gives Congress, not the president, the power to “lay and collect taxes, duties, imposts and excises.” And although Congress has delegated that authority to the president in “numerous statutes,” the Federal Circuit notes in an unsigned opinion joined by seven members of an 11-judge panel, it has always “used clear and precise terms” to do so, “reciting the term ‘duties’ or one of its synonyms.” Furthermore, Congress always has imposed “well-defined procedural and substantive limitations” on the president’s tariff powers.

    IEEPA, by contrast, “neither mentions tariffs (or any of its synonyms) nor has procedural safeguards that contain clear limits on the President’s power to impose tariffs.” Yet under Trump’s reading of the statute, it empowers him to impose any tariffs he wants against any country he chooses for as long as he deems appropriate, provided he perceives an “unusual and extraordinary threat” that constitutes a “national emergency” and avers that the import taxes will “deal with” that threat.

    To justify his tariffs, Trump declared two supposed emergencies, one involving international drug smuggling and the other involving the U.S. trade deficit. The former “emergency,” he said, justified punitive tariffs on goods from Mexico, Canada, and China, with the aim of encouraging greater cooperation in the war on drugs. The latter “emergency,” he claimed, justified hefty, ever-shifting taxes on imports from dozens of countries, which he implausibly described as “reciprocal.”

    Leaving aside the question of whether it makes sense to characterize drug trafficking and trade imbalances, both of which are longstanding phenomena, as “unusual and extraordinary” threats, Trump’s attempted power grab is striking even for him. “Since IEEPA was promulgated almost fifty years ago, past presidents have invoked IEEPA frequently,” the Federal Circuit notes. “But not once before has a President asserted his authority under IEEPA to impose tariffs on imports or adjust the rates thereof. Rather, presidents have typically invoked IEEPA to restrict financial transactions with specific countries or entities that the President has determined pose an acute threat to the country’s interests.”

    Trump claims to have discovered a heretofore unnoticed tariff power in an IEEPA provision that authorizes the president to “regulate…importation.” And that power, he avers, is not subject to any “procedural and substantive limitations” except for the pro forma requirement that he declare a national emergency based on a foreign threat. As the Federal Circuit dryly observes, “it seems unlikely that Congress intended, in enacting IEEPA, to depart from its past practice and grant the President unlimited authority to impose tariffs.”

    Trump’s assertion of that authority “runs afoul of the major questions doctrine,” the Federal Circuit says. According to the Supreme Court, that doctrine applies when the executive branch asserts powers of vast “economic and political significance.” In such cases, “the Government must point to ‘clear congressional authorization’ for that asserted power,” the appeals court notes. “The tariffs at issue in this case implicate the concerns animating the major questions doctrine as they are both ‘unheralded’ and ‘transformative.’” The Supreme Court “has explained that where the Government has ‘never previously claimed powers of this magnitude,’ the major questions doctrine may be implicated.”

    The Federal Circuit was unimpressed by the government’s citation of United States v. Yoshida International, a 1975 case in which the now-defunct Court of Customs and Patent Appeals approved a 10 percent import surcharge that President Richard Nixon had briefly imposed in 1971 under the Trading With the Enemy Act (TWEA). Although Nixon relied on a different statute, the government’s lawyers noted, the court concluded that the phrase “regulate importation” in TWEA encompassed tariffs.

    Even assuming that conclusion was correct, the Federal Circuit says, Yoshida “does not hold that TWEA created unlimited authority in the President to revise the tariff schedule, but only the limited temporary authority to impose tariffs that would not exceed the Congressionally approved tariff rates.” Trump, by contrast, claims IEEPA gives him carte blanche to set tariffs, regardless of what Congress has said.

    “The Government’s expansive interpretation of ‘regulate’ is not supported by the plain text of IEEPA,” the Federal Circuit says. “The Government’s reliance on the ratification of our predecessor court’s opinion in [Yoshida] does not overcome this plain meaning.” The appeals court adds that “the Government’s understanding of the scope of authority granted by IEEPA would render it an unconstitutional delegation.”

    Four judges agreed with the majority that IEEPA “does not grant the President authority to impose the type of tariffs imposed by the Executive Orders.” But they went further in a separate opinion, arguing that the statute does not authorize the president to impose any tariffs at all.

    As Reason‘s Eric Boehm notes, the appeals court nevertheless vacated the CIT’s injunction and remanded the case for further consideration in light of the Supreme Court’s June 27 decision in Trump v. CASA. In that June 27 ruling, the Court questioned universal injunctions that judges had issued in two birthright citizenship cases “to the extent that the injunctions are broader than necessary to provide complete relief to each plaintiff with standing to sue.”

    Although the Supreme Court “held that the universal injunctions at issue ‘likely exceed the equitable authority Congress has granted to federal courts,’” the Federal Circuit notes, “it ‘decline[d] to take up…in the first instance’ arguments as to the permissible scope of injunctive relief. Instead, it instructed ‘[t]he lower courts [to] move expeditiously to ensure that, with respect to each plaintiff, the injunctions comport with this rule and otherwise comply with principles of equity’ as outlined in the opinion. We will follow this same practice.”

    On remand, the Federal Circuit says, “the CIT should consider in the first instance whether its grant of a universal injunction comports with the standards outlined by the Supreme Court in CASA.” The CIT, in other words, is tasked with deciding what sort of order is appropriate to grant the plaintiffs “complete relief.” Alternatively, as Boehm suggests, Congress could intervene by asserting the tariff authority that Trump is trying to usurp.

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    Jacob Sullum

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  • The Supreme Court’s Decision Overruling Chevron is Important – But Less so than You Might Think

    The Supreme Court’s Decision Overruling Chevron is Important – But Less so than You Might Think

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    Today’s Supreme Court decision in Loper Bright Enterprises v. Raimondo overturns the important 1984 precedent of Chevron v. Natural Resources Defense Council, which required federal judges to defer to administrative agencies’ interpretations of federal laws, so long as Congress has not addressed the issue in question, and the agency’s view is “reasonable.” It’s an important reversal, and I think the Court was right to do it. Chief Justice John Roberts’ majority opinion lays out a compelling critique of Chevron, including explaining why it should not be retained out of respect for precedent. But, contrary to the hopes of some and fears of others, today’s ruling will not end the administrative state or even greatly reduce the amount of federal regulation.

    I summarized some key reasons why in a post written last year when the Court decided to hear Loper Bright:

    While I would be happy to see Chevron overturned, I am skeptical of claims it will make a huge difference to the future of federal regulation. I explained why in two previous posts, (see here and here). To briefly summarize, my reasons for skepticism are 1) we often forget that the US had a large and powerful federal administrative state even before Chevron was decided in 1984, 2) states that have abolished Chevron-like judicial deference to administrative agencies (or never had it in the first place) don’t seem to have significantly weaker executive agencies or significantly lower levels of regulation, as a result, 3) a great deal of informal judicial deference to agencies is likely to continue, even in the absence of Chevron, and 4) Chevron sometimes protects deregulatory policies as well as those that increase regulation (it also sometimes protects various right-wing policies that increase regulation, in an age where pro-regulation  “national conservatives” are increasingly influential on the right); the Chevron decision itself protected a relatively deregulatory environmental policy by the Reagan administration.

    In addition, as Chief Justice John Roberts notes in his majority opinion, the Supreme Court had previously issued a series of decisions significantly limiting Chevron, creating “a byzantine set of preconditions and exceptions” restricting the range of situations where agencies get deference. Those rulings don’t seem to have led to any major reduction in the overall prevalence of federal regulation, though they did constrain some types of agency actions.

    Overruling Chevron doesn’t even completely eliminate all precedent requiring judicial deference to agencies. As Justice Elena Kagan notes in her dissent, there is still Skidmore deference:

    [T]he majority makes clear that what is usually called Skidmore deference continues to apply. See ante, at 16–17. Under that decision, agency interpretations “constitute a
    body of experience and informed judgment” that may be “entitled to respect.” Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944). If the majority thinks that the same judges who argue today about where “ambiguity” resides… are not going to argue tomorrow about what “respect” requires, I fear it will be gravely disappointed.

    Like Fredo Corleone, federal agencies are smart and they want respect!

    https://www.youtube.com/watch?v=teka3Tdxcc8

    And federal judges will still often want to give it to them, especially in cases that aren’t ideologically charged. Justice Kagan is right that the degree of “respect” required by Skidmore is often far from completely clear.

    Despite the likely limited scope of its impact, I still think today’s ruling is a valuable step. While it won’t lead to large-scale deregulation, it can help strengthen the rule of law. It could also limit the aggrandizement of power by the executive. Liberals who lament Chevron’s demise may be happier about it if Donald Trump returns to power and his appointees try to use statutory ambiguities to advance his ends.

    A traditional rationale for Chevron is that courts should defer to agencies in situations where there are statutory ambiguities because the agencies have superior expertise. Justice Kagan repeatedly invokes expertise in her dissent.

    Sometimes agencies really do have relevant specialized expertise. But expertise is far from the only factor influencing agency decisions. Partisan and ideological agendas also have a big impact.

    If Trump returns to power, do left-liberal Chevron fans believe his appointees will scrupulously “follow the science” when they interpret statutes? Or will they have a political agenda that will usually trump (pun intended!) science when the two conflict? The answer seems pretty obvious, at least to me.

    The same question can be posed in reverse to the dwindling band of conservative defenders of Chevron. Even if they think GOP administrations will “follow the science,” they probably don’t have equal confidence in Democratic ones.

    Partisan and ideological bias aside, many issues handled by agencies are simply impossible to resolve through technical expertise alone. They also involve questions of values. And even the most expert of government planners have severe limits to their knowledge, which is one reason why it’s usually best to rely on markets, which aggregate information better than planners do.

    In sum, Chevron’s demise doesn’t entail that of the regulatory state. Far from it. But it’s still a useful step forward.

     

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    Ilya Somin

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  • Why the Fifth Circuit Keeps Making Such Outlandish Decisions

    Why the Fifth Circuit Keeps Making Such Outlandish Decisions

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    Where to even start in cataloging the most ridiculous—and alarming—recent rulings to come out of the U.S. Court of Appeals for the Fifth Circuit?

    There’s a case about whether a class action could go forward that boiled down to a dispute among three Fifth Circuit judges over the meaning of a Bible verse. There’s a case in which the Fifth Circuit allowed three doctors to sue the FDA over a tweet intended to discourage ivermectin use that read, “You are not a horse. You are not a cow. Seriously, y’all. Stop it.” There’s a case in which the Fifth Circuit barred the Biden administration from requiring Navy SEALs to be vaccinated against COVID, because the court’s conception of religious liberty supersedes the military’s need for frontline troops to be healthy. There’s a case in which the Fifth Circuit held that the way Congress funds the Consumer Financial Protection Bureau (a mechanism Congress has regularly used since America’s founding) is unconstitutional because Congress only imposed a limit on the appropriation, rather than putting a precise dollar figure on it. There’s the Fifth Circuit’s repeated insinuation that individual district judges, rather than the Biden administration, are better situated to supervise and direct federal immigration policy. There’s … you get the idea. When the hosts of the popular Strict Scrutiny podcast devoted an entire hour-long episode to flagging especially problematic Fifth Circuit rulings, they ran out of time.

    The Fifth Circuit is the federal appeals court covering Louisiana, Mississippi, and Texas (where I live), and it has in recent years become the place where just about every right-wing litigant who can brings lawsuits to test novel and extreme legal arguments. It’s not that a disproportionate percentage of major legal issues are arising in those three states; it’s that conservative and right-wing litigants are deliberately steering disputes to a handful of sympathetic district judges in Texas, from where they know that any appeal will go to the Fifth Circuit—whose judges are far more likely than others in the country to take their side.

    A nationwide challenge to the FDA’s approval of mifepristone? Filed in Amarillo. Nationwide challenges to the Biden administration’s immigration policies? Filed in Victoria. Elon Musk’s new (and laughably weak) lawsuit against Media Matters, which has no geographic connection to the Fifth Circuit whatsoever? Filed in Fort Worth. These aren’t exactly destinations for vacations, but they’re the typical destinations today for overwhelming majority of litigation with an obvious rightward ideological or partisan tilt.

    Back in April, David A. Graham wrote in The Atlantic about the rise of “total politics”—where our political institutions have gravitated away from behaving with prudence in favor of scoring short-term political points. All that matters is #winning, long-term institutional consequences be damned.

    The decision that could end voting rights

    As alarming a development as that is in the context of the democratically elected branches (where voters could at least theoretically push back), it’s even worse when it comes from unelected judges—whose legitimacy depends on at least a loose public belief in their prudence. And especially when these rulings have consequences far outside the borders of its three states, the Fifth Circuit’s run of sweeping decisions undermines public faith in the federal judiciary nationally—not just from the eastern border of New Mexico to the western border of Alabama.

    What the Fifth Circuit is doing is participating in an extraordinary power grab, indifferent to the procedural rules that are supposed to constrain the powers of unelected judges. For instance, the Fifth Circuit regularly holds that challengers to whom it is sympathetic have standing—the right to bring a suit—in contexts in which the Supreme Court has, for decades, held to the contrary.

    The judges do this not because they have an unusually capacious approach to standing; they routinely reject the standing of plaintiffs to whom they are less sympathetic. Rather, they bend over backwards to take procedural shortcuts when they want to rule on the merits, such as in the challenges to the Biden administration’s proposed requirement that large employers require COVID vaccinations or regular tests. Even though the Fifth Circuit had only a 10 percent chance of winning the “inter-circuit lottery” that randomly assigns this type of dispute to a federal appeals court, it decided to jump the gun—issuing a premature decision, before the lottery took away its power, that the Biden rule was unlawful. (The Sixth Circuit, which “won” the lottery, quickly vacated the Fifth Circuit’s decision.)

    Moreover, the Fifth Circuit’s approach to both constitutional and statutory interpretation reflects a rather wooden application of even the conservative methodologies championed by the current Supreme Court. Consider the court of appeals’ ruling in United States v. Rahimi, in which the panel struck down a federal law barring people subject to domestic-violence-related restraining orders from possessing firearms. Even though the federal government offered numerous examples of founding-era laws that restricted firearm possession by “dangerous” individuals, the court of appeals rejected that analogy—concluding that domestic-violence restraining orders were too specific a subcategory of danger for the comparison to hold. (In another bizarre procedural move, the court subsequently amended its analysis although no party asked it to—perhaps in response to some of the public criticisms that had emerged.)

    The same cherry-picking of historical examples can be found in the CFPB case, in which the court of appeals either ignored or unpersuasively distinguished countless historical examples of similar congressional-funding statutes. When, at the recent Supreme Court oral argument in the case, Justice Samuel Alito tried to defend the Fifth Circuit’s efforts, U.S. Solicitor General Elizabeth Prelogar sarcastically conceded that, at the very least, none of those examples involved an agency with the same name.

    The Supreme Court’s extreme power grab

    The Fifth Circuit’s approach to statutory interpretation has been just as transparently results-oriented. One especially notorious example is the court’s conclusion that the Nuclear Regulatory Commission lacks the statutory power to promulgate rules for the temporary storage of spent nuclear fuel—at least in part because the court determined that the Atomic Energy Act didn’t clearly delegate such authority. But if the NRC isn’t authorized to provide for the temporary storage of nuclear waste, who is? (The court’s opinion doesn’t say.)

    The upshot of these statutory holdings is not, as some of the court’s judges have insisted, to return power to Congress; it’s to frustrate federal regulation in general—because even a functioning Congress (to say nothing of the current one) would have neither the time nor the wherewithal to legislate with the amount of subject-matter specificity that the Fifth Circuit demands.

    Throughout these decisions, the Fifth Circuit has shown a remarkable lack of regard for the Supreme Court—which not only keeps reversing it, but keeps granting emergency relief in cases in which the Fifth Circuit refused to do so, or vacating emergency relief that the Fifth Circuit agreed to provide. Take just three examples: After a federal judge blocked a controversial Texas law barring most content moderation by social-media providers, the Fifth Circuit unblocked it pending appeal, only to have the Supreme Court step in to put the law back on hold. Even though the Supreme Court’s intervention signaled that at least five justices were likely to side with the district court and conclude that the Texas law was unconstitutional, the Fifth Circuit went ahead and decided that the Texas law was kosher.

    A similar story unfolded in the mifepristone case—where the Supreme Court issued a stay of Judge Matthew J. Kacsmaryk’s ruling (which would have massively limited nationwide access to the abortion pill), after the Fifth Circuit had refused to do so. Once again, the Supreme Court sent a pretty clear message that Kacsmaryk’s ruling was not likely to survive, but the Fifth Circuit affirmed it on the merits anyway. And just last month, the Fifth Circuit struck down the Biden administration’s rule limiting the distribution of “ghost guns,” even though the Supreme Court intervened twice earlier this summer to put the rule back into effect after the Fifth Circuit had blocked it. So far this term, the Supreme Court has granted emergency relief three times. Not only did all three of those cases come from the Fifth Circuit; in all three, the Fifth Circuit had gone the other way.

    This disregard for the Supreme Court has the ironic effect of making the justices look more moderate. Last term, for example, the Supreme Court reversed the Fifth Circuit in seven of the nine cases it reviewed—the highest rate for any lower court in the country. A similar theme is likely to emerge from this term, in which as many as 20 percent of the cases the justices decide are likely to come from Louisiana, Mississippi, and Texas, and most are likely heading for reversal. The point is not that the Supreme Court is less ideologically extreme than its critics charge; it’s that the Court is less ideologically extreme than the Fifth Circuit. These days, that’s not saying all that much.

    Even conservative scholars have started expressing alarm about these trends. In the November issue of the Harvard Law Review, the professors William Baude and Samuel Bray warned that “we have arrived, for the first time in our national history, at a state of affairs where almost every major presidential act is immediately frozen” by federal courts—most commonly in the Fifth Circuit—forcing the Supreme Court to step in at premature stages. In their words, “This is bad law and bad democracy. It cannot go on forever.”

    The care and feeding of Supreme Court justices

    But whereas conservative scholars have begun to raise concerns about these developments, the Supreme Court, which has not been shy about chastising misbehaving lower courts in the past, has thus far been mum. The lack of rebuke may explain why some Fifth Circuit judges are leaning into their newfound infamy. One of the court’s most visible judges, James Ho, regularly lectures law-school audiences about the importance of judicial “courage”—that judges shouldn’t shy away from unpopular opinions.

    Ho’s not-so-subtle message is that criticism is actually evidence of good judicial rulings; in his world, there’s no such thing as bad publicity. But whether this is what these judges truly believe or just how they think they need to behave in order to have any shot at a Supreme Court nomination in a future Republican presidency, the bottom line is the same: The Fifth Circuit is the bull in the rule-of-law china shop—and it seems remarkably indifferent to what happens to public faith in the judiciary when it keeps breaking things.

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    Stephen I. Vladeck

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