Big picture view about the Supreme Court tariff decision that got Andrew Weissmann 'sort of on his high horse'
Andrew Weissmann spoke with Sarah Longwell about the Supreme Court striking down Trump’s sweeping tariffs:
(excerpt)
Andrew: ...I think there is a big picture [one] that gets me sort of on my high horse but I really think um is fascinating...
Host: Climb on up on that high horse! You climb up, I'll sit back and listen.
Andrew: Yeah, exactly. You're going to you're going to be at some point you're going to be like, "Come on down."
...so, okay. I need to tell you about two cases. One you're going to know about, one you may know about. Um, so obviously you know about the Trump versus United States presidential immunity case.
In that case, you had a a decision that really reinforced the power of the executive branch um and undermined the power of Congress because it basically said Congress cannot criminalize certain conduct of the of actions by the president; most famously, the grand jury indictment that had said that Donald Trump instigated a sham electoral investigation in Georgia; said that could not be part of a criminal case because the presidency has unilateral preclusive and conclusive power over the Department of Justice - and so I mean that just to say it is to make it is is shocking, right?
I mean because they actually say that the fact that it's alleged to be a sham investigation does not matter - and so that is such a high watermark in terms of the power of the presidency- and Chief Justice Roberts talks about the need for the president to be essentially viral and strong and fast um and can't be bothered with these these little congressional things that get in his way. So it was it was quite shocking.
The other decision that you need to know about because it so mirrors what just happened with the tariffs is a case in 1952 called Youngstown Steel. In that case, President Truman tried to take over the steel mills and there was a strike going on and he said, "I need the steel for an ongoing war." and it was challenged and the argument was that it's outside of the president's power that this is something that only Congress could do, not the president.
He can't just take their property. Congress would have to do it and there are all sorts of ways that Congress would have to act, but it's not a presidential power. That decision came out also 6 to 3 striking down what President Truman was doing.
A very very famous case. The case yesterday is I think the is sort of the book end of Youngstown Steel. It's the it's from 1952 to now. It is the really the last time in 1952 that you saw such a important huge issue of presidential power being struck down by the Supreme Court notably by the same six to 3 split.
Um, and there's a very very famous concurrence by Justice Jackson, Robert Jackson, who had just come back from being the lead prosecutor for the Americans in the Nuremberg trials. And he has the most beautiful language about why the court and the country has to worry about the growth of executive power. and cites obviously Germany and other examples - and knowing his history it resonates so forcefully.
And that language from the Youngstown concurrence is all over the chief justice's opinion yesterday and he talks about the president's claim to make to an emergency power he cites justice Jackson saying those claims emergencies beget emergencies.
Justice Jackson talked about in Germany emergencies were declared and the next thing they knew habeas was gone for for a decade - and that sham claims and pretextual claims to emergency can happen if you go down that road and the you let the executive do that.
And I thought it was just so interesting that one that that the court yesterday was going back to that concern about the growth of executive power which in the immunity decision they just completely ignored.
I don't know going forward sort of what the big implications will be. They obviously have lots of room depending on the facts of the case to wriggle out of this, but the one thing I do think that you can take from this is the language is striking. They didn't need to be citing Justice Jackson as much as they did - they didn't need to talk about um the fear of presidential pretextual claims to emergencies.
Um to me, if I I mean, I'm hoping this is what is going on is that the facts changed. In other words, they saw the abuse that was going on. They could say, "We understand what it means. I'm a, you know, they have conservative principles as jurists. I have no problem with that. I may disagree with it, but I have no problem with that as a theory - and I could see them going, we didn't sign up for this, and this is wrong.
And really, I think if I had to say, what's the difference between where they were in the Trump immunity case and where they are now is they have seen the abuse? They have seen the use of the military domestically - which by the way this decision may have huge implications for in terms of a road to strike that down.
I wanted to point out something which I think you will find just fascinating which is that of all people it is Justice Gorsuch who writes this like you know 85-page concurrence.
It goes on and on and on. But he is the person who channels his inner Robert Jackson and ends his concurrence by saying he about saying there's real virtues of of having Congress decide things, not the president.
He says that legislating can be hard and take time. That is almost a direct paraphrase of Justice Robert Jackson. And yes, it can be tempting to bypass Congress when some pressing problem arises, but the deliberative nature of the legislative process was the whole point of its design. The nation can tap the combined wisdom of the people's elected representatives, not just that of one faction or man, and goes on to talk about that, (Gorsuch writing),
"Yes, legislating can be hard and take time. And, yes, it can be tempting to bypass Congress when some pressing problem arises. But the deliberative nature of the legislative process was the whole point of its design."
"Through that process, the Nation can tap the combined wisdom of the people’s elected representatives, not just that of one faction or man. There, deliberation tempers impulse, and compromise hammers disagreements into workable solutions."
"And because laws must earn such broad support to survive the legislative process, they tend to endure, allowing ordinary people to plan their lives in ways they cannot when the rules shift from day to day."
"In all, the legislative process helps ensure each of us has a stake in the laws that govern us and in the Nation’s future. For some today, the weight of those virtues is apparent. For others, it may not seem so obvious. But if history is any guide, the tables will turn and the day will come when those disappointed by today’s result will appreciate the legislative process for the bulwark of liberty it is."
Kavanaugh’s Embarrassing Tariff Dissent (w/ Andrew Weissmann) | Illegal News
Feb 21, 2026 The Illegal News with Sarah Longwell
The Supreme Court struck down Trump’s sweeping tariffs in a 6–3 decision—including votes from two of his own appointees. Sarah Longwell and Andrew Weissmann explain why the Court said Congress, not the president, controls the power to tax, what the “major questions” fight was really about, and why Chief Justice Roberts appeared to take direct aim at Kavanaugh’s dissent.
= new reply since forum marked as read
