The vast majority of the argument was devoted to the question whether the statute authorizes tariffs *at all.* Less discussed was whether these particular tariffs are justified as necessary to "deal with" a genuine emergency, given that trade deficits have existed for 50 years.

One thing I've never seen before: during seriatim questions when only one justice is allowed to speak at a time, Sotomayor asked Kavanaugh to nod yes if he was planning to ask about an issue, so she wouldn't have to. He did, so she passed.

Scott Bessent, Howard Lutnick, and Jamieson Greer were sitting right behind me and kept poker faces throughout (I glanced back when Roberts pressed the SG on who pays for tariffs).

Kavanaugh focused heavily on precedents that may or may not have been on the minds of members of Congress when the statute at issue was drafted, and how much weight the Court should give those precedents. Roberts pressed the SG on whether the major questions doctrine applies.

Gorsuch focused on the constitutional concerns with interpreting the law at issue to give unilateral power to the president with no practical means of congressional veto. Barrett focused more on the linguistic meaning of "regulate" in the statute and whether it can cover tariffs.

www.cato.org/blog/supreme...

I think that's right, they could. Ultimately the point of the FVRA delegation bar is to make it a pain for the gov to evade FVRA, and forcing gov to both think about and actually affirmatively withhold some power of a US attorney at least accomplishes that function of making it more of a pain.

www.cato.org/blog/governm...

Full piece:

www.msnbc.com/opinion/msnb...

The court noted that Habba's actions might be ratifiable (they weren't exclusive duties, so the ratification bar didn't apply), but the government hadn't tried to ratify them. If the appellate court upholds this reading, it would close the biggest loophole in the Vacancies Act.

The court held that delegating *all* the duties of a vacant office to a *single* person violates the exclusivity provision. We at the Cato Institute advanced precisely this argument in an amicus brief to the Supreme Court:

www.cato.org/legal-briefs...

This opinion in the Habba case breaks that trend, holding that the exclusivity provision is a separate, enforceable bar on using delegations to evade the Vacancies Act. The government tried to delegate all the duties of a U.S. attorney to Habba, in case she was not a valid acting.

But perversely, the existence of the penalty provision has led courts to interpret the exclusivity provision as lacking any teeth. Courts have interpreted it as a general statement of intent, but have told litigants that the penalty provision is their only option to win in court.

Unfortunately, these two provisions combined to create the worst of both worlds. The penalty provision is almost never successfully invoked, because so few duties are exclusive. Courts have consistently held that any delegable duty is not exclusive.

www.cato.org/briefing-pap...

In another portion of the Vacancies Act, Congress added a specific penalty. If an invalid acting officer performs an exclusive duty of the office they purport to hold, that action "shall have no force or effect" and "may not be ratified."