Joe Bishop-Henchman
@jbhenchman.bsky.social
Husband of Ethan, DC lawyer (tax and constitutional), policy, history, transportation, liberty
Watson v. Republican National Committee
www.scotusblog.com
November 10, 2025 at 3:01 PM
continuing resolution, keeping the current spending levels from the last passed budget
November 10, 2025 at 2:56 PM
continuing resolution, keeping the current spending levels from the last passed budget
This is a Senate deal, House not on board. Most Dems will oppose but it will need only 10 Senate Dems to support. The thinking is that the House will be pressured to pass what Senate passes.
November 9, 2025 at 11:56 PM
This is a Senate deal, House not on board. Most Dems will oppose but it will need only 10 Senate Dems to support. The thinking is that the House will be pressured to pass what Senate passes.
Sauer, in his final argument, sticks with his position that the tariffs are not an exercise of the power to tax, but of the power to regulate commerce.
November 5, 2025 at 5:45 PM
Sauer, in his final argument, sticks with his position that the tariffs are not an exercise of the power to tax, but of the power to regulate commerce.
In response to a question by Jackson, Oregon's Gutman says the tariffs do not address fentanyl because they are too indirect and aren't on traffickers. Jackson points out that embargoes and sanctions often are indirect, and a pressure points.
November 5, 2025 at 5:43 PM
In response to a question by Jackson, Oregon's Gutman says the tariffs do not address fentanyl because they are too indirect and aren't on traffickers. Jackson points out that embargoes and sanctions often are indirect, and a pressure points.
There’s an obvious reason that Congress hasn’t authorized imposing a 1% tariff to respond to an international emergency: what emergency would be addressed by such an action?
November 5, 2025 at 5:29 PM
There’s an obvious reason that Congress hasn’t authorized imposing a 1% tariff to respond to an international emergency: what emergency would be addressed by such an action?
Justice Kavanaugh says the challengers think the President could do embargoes and quotas but not a 1% tariff, leaving a donut hole, and asks how that makes sense. Justice Jackson jumps in to say Congress wanting to allow a halt to trade in an international emergency makes more sense than a tariff.
November 5, 2025 at 5:27 PM
Justice Kavanaugh says the challengers think the President could do embargoes and quotas but not a 1% tariff, leaving a donut hole, and asks how that makes sense. Justice Jackson jumps in to say Congress wanting to allow a halt to trade in an international emergency makes more sense than a tariff.
Katyal's 20 minute argument was about an hour.
November 5, 2025 at 5:21 PM
Katyal's 20 minute argument was about an hour.
Justice Barrett asking some questions about the administrative feasibility of refunds, warning it could be “a mess.” Katyal says that’s not a reason to not do it, but the Court could choose to only make relief prospective going forward.
November 5, 2025 at 5:16 PM
Justice Barrett asking some questions about the administrative feasibility of refunds, warning it could be “a mess.” Katyal says that’s not a reason to not do it, but the Court could choose to only make relief prospective going forward.
Katyal, with help from Justice Barrett, clarifies that licenses are not the same thing as tariffs. Licenses may involve fees but are fundamentally about government permission to do something.
November 5, 2025 at 5:10 PM
Katyal, with help from Justice Barrett, clarifies that licenses are not the same thing as tariffs. Licenses may involve fees but are fundamentally about government permission to do something.
Justice Kavanaugh asks whether the challengers’ argument comes down to whether the law says “tariff” or not, and if that makes sense since quotas and embargoes aren’t much different. Katyal says no, what matters is context and here the statute is not clearly aimed at tariff actions.
November 5, 2025 at 5:09 PM
Justice Kavanaugh asks whether the challengers’ argument comes down to whether the law says “tariff” or not, and if that makes sense since quotas and embargoes aren’t much different. Katyal says no, what matters is context and here the statute is not clearly aimed at tariff actions.
Justice Kagan says at the time of IEEPA, Congress thought it had a legislative veto. The statute originally had one, but legislative vetoes have since held a violation of the separation of powers. Interesting question.
November 5, 2025 at 5:09 PM
Justice Kagan says at the time of IEEPA, Congress thought it had a legislative veto. The statute originally had one, but legislative vetoes have since held a violation of the separation of powers. Interesting question.
Justice Alito jokes with Katyal - who is President Obama’s former Solicitor General - if he thought he would be the person to revive the non-delegation doctrine. bsky.app/profile/jbhe...
Non-delegation is tough to win on: it hasn’t struck down a law since 1936, and was most recently rejected in a case where the FCC delegated rate-setting power to a private group. But this might be the case? Justice Kagan says “A tax with no ceiling would raise a very deep delegation problem.”
November 5, 2025 at 4:52 PM
Justice Alito jokes with Katyal - who is President Obama’s former Solicitor General - if he thought he would be the person to revive the non-delegation doctrine. bsky.app/profile/jbhe...
Alito says other authorities might allow the President to do the tariffs, should this case just repeat over and over? Katyal says the President can use Section 301 of the Trade Act of 1974 or Section 232 of the Trade Expansion Act of 1962, the proper authorities to impose tariffs.
November 5, 2025 at 4:49 PM
Alito says other authorities might allow the President to do the tariffs, should this case just repeat over and over? Katyal says the President can use Section 301 of the Trade Act of 1974 or Section 232 of the Trade Expansion Act of 1962, the proper authorities to impose tariffs.
Justice Alito asks if the plain language of a 1930 law authorizes the President’s actions. Katyal replies no, government hasn’t invoked it, that law applied only to most favored nation status, and it has lapsed. (We noted this in footnote 2 of our brief, on page 25.)
November 5, 2025 at 4:46 PM
Justice Alito asks if the plain language of a 1930 law authorizes the President’s actions. Katyal replies no, government hasn’t invoked it, that law applied only to most favored nation status, and it has lapsed. (We noted this in footnote 2 of our brief, on page 25.)
Justice Alito is pressing on Katyal’s argument that there is a category shift between regulation and taxes. He asks if the President could impose an emergency tariff on an enemy heavily tied to U.S. trade? Katyal says no, he can embargo or go to Congress.
November 5, 2025 at 4:40 PM
Justice Alito is pressing on Katyal’s argument that there is a category shift between regulation and taxes. He asks if the President could impose an emergency tariff on an enemy heavily tied to U.S. trade? Katyal says no, he can embargo or go to Congress.
It is clear that Justice Kavanaugh views the definition of “regulate importation” as key and whether the Nixon 1971 precedent authorizes what has happened here (and why Congress didn’t add tariffs to the statute afterward). He’s brought it up several times.
November 5, 2025 at 4:31 PM
It is clear that Justice Kavanaugh views the definition of “regulate importation” as key and whether the Nixon 1971 precedent authorizes what has happened here (and why Congress didn’t add tariffs to the statute afterward). He’s brought it up several times.
Barrett asks if it really is an emergency ("unusual and extraordinary") if we're tariffing every country. Sauer answers with a hypothetical about tariffing South Africa in the 1980s. He should've said Nixon did across-the-board tariffs in 1971 and the President determined the same remedy was needed.
November 5, 2025 at 4:21 PM
Barrett asks if it really is an emergency ("unusual and extraordinary") if we're tariffing every country. Sauer answers with a hypothetical about tariffing South Africa in the 1980s. He should've said Nixon did across-the-board tariffs in 1971 and the President determined the same remedy was needed.
Justice Barrett raising another challenge for the government’s case: IEEPA allows the President to regulate importation by “instructions, license, or otherwise.” So are tariffs “otherwise” or “license” and if license, why aren’t they structured that way?
November 5, 2025 at 4:15 PM
Justice Barrett raising another challenge for the government’s case: IEEPA allows the President to regulate importation by “instructions, license, or otherwise.” So are tariffs “otherwise” or “license” and if license, why aren’t they structured that way?
Justice Kavanaugh turns the argument back to Major Questions, would “regulate importation” be thought of as including tariffs. Presidents haven’t done that until now (except Nixon). But Congress ratified that Nixon decision, Congress here hasn’t.
November 5, 2025 at 4:06 PM
Justice Kavanaugh turns the argument back to Major Questions, would “regulate importation” be thought of as including tariffs. Presidents haven’t done that until now (except Nixon). But Congress ratified that Nixon decision, Congress here hasn’t.
Responding to Sauer’s claim that Congress could restrain executive power if it wanted to, Justice Gorsuch says there is a “retrieval problem” and “as a practical matter, in the real world, you can’t get that power back. A one-way ratchet away from the people’s representatives.”
November 5, 2025 at 4:04 PM
Responding to Sauer’s claim that Congress could restrain executive power if it wanted to, Justice Gorsuch says there is a “retrieval problem” and “as a practical matter, in the real world, you can’t get that power back. A one-way ratchet away from the people’s representatives.”