This is how the government turns protected speech into a federal crime.
Photo illustration by Slate. Photos by Collection of the Supreme Court of the United States via Getty Images and STILLFX/iStock/Getty Images Plus.was a major political event, striking a blow at the Trump administration’s economic agenda while demonstrating the Supreme Court’s willingness to stand up to executive overreach.
Perhaps as interesting for understanding the dynamics at play on the court, however, are the different approaches to statutory interpretation taken by the two liberal concurrences, one authored by Justice Elena Kagan and the other by Justice Ketanji Brown Jackson. Much has been written about thethat Kagan and Jackson have adopted in their roles as members of the court’s liberal minority: While Kagan takes a more institutionalist approach aimed at moderating the conservative majority, Jackson keepsto warn the public about what she sees as the court’s failure to rein in the current administration. These justices’ concurrences in the tariffs case reveal that these tactical differences are reflected in the justices’ views on statutory interpretation as well—with Kagan trying to beat the conservative majority at its own textualist game, while Jackson dismisses the majority’s “pure textualism” altogether. This difference might sound academic. But it illustrates the deeper disagreements between the justices about how to counter their colleagues on the right. Should the liberal justices try to prove that the conservatives aren’t following their own rules? Or should they demonstrate why those rules are flawed and arbitrary in the first place?did not entirely divide Kagan and Jackson. Along with Justice Sonia Sotomayor, they refused to join the portion of Roberts’ opinion applying the major-questions doctrine to strike down Trump’s tariffs. Under this doctrine, when the executive is asserting a consequential power ostensibly delegated to it by the legislature, the statute granting that authority must do so explicitly. Roberts applied it into conclude that Trump could not claim an unlimited tariff power from an emergency statute known as the International Emergency Economic Powers Act that lets the president “regulate … importation.”In a concurrence, Kagan—a longtime critic of the doctrine—wrote that it was unnecessary here, because the issue could be resolved by looking to the words of the statute alone. This approach, known as textualism, is closely associated with Justice Antonin Scalia and other conservative jurists. It focuses tightly on the plain text of a law andFor example, Kagan’s concurrence noted that the text of IEEPA “says nothing about imposing taxes or tariffs.” She pointed to the “ordinary meaning” and dictionary definition of the word, arguing that the power to tax and raise revenue cannot fairly be made to fit within these definitions. Citing to the majority, Kagan also noted that none of the 98 other combinations of nouns and verbs in IEEPA can be read to grant a tariff power. Interpreting the power to “regulate … importation” as alone providing such an authority would be an awkward reading of the statute.In short, Kagan would have resolved this case as a good textualist, operating within the methodological terms set down by the majority’s opinion, minus the major-questions thumb on the scale. As such, Kagan remains true to her famed concession to Scalia when she proclaimed, “Finally, insofar as Kagan cited to legislative history, she did so only briefly and in a footnote. She noted that the Senate and House reports respectively refer to the president’s authority under IEEPA to “control or freeze” and to “regulate or freeze” any property-related transaction involving “a foreign interest.” These descriptions do not suggest in any way that Congress “intended to cede its taxing power.” But the point for Kagan in bringing up this legislative history was merely to provide “yet more proof” of statutory meaning already deciphered through “straight-up statutory construction.”Jackson joined Kagan’s opinion in full. But she also wrote her own concurrence, which elevated legislative history far beyond what Kagan seemed comfortable with. In her separate opinion, Jacksonwith the congressional reports in order to ascertain “Congress’ objective” before going to the statute’s text, reversing the order of Kagan’s analysis. First, Jackson pointed to the legislative history of IEEPA’s predecessor statute, the Trading With the Enemy Act. The 1941 amendments to TWEA originated the language allowing the president to “regulate … importation” in the context of national emergencies. According to Jackson, the reports make clear that the purpose of this addition was simply to reaffirm the president’s ability to “control” foreign assets in relation to the “existing system of foreign property control .”In other words, the president’s power to “regulate … importation” was understood solely as the ability to freeze foreign-property-related transactions during a national emergency. This is a far cry from a general ability to tax foreign importations. And, according to Jackson, the language to “regulate … importation” merely carried over into IEEPA, with the legislative history of the latter reaffirming the language’s specific and limited purpose of permitting the president to “freeze” foreign-property-related transactions.Armed with this evidence from the legislative history, Jackson explained that “interpreting the text of IEEPA becomes an easy task.” As she noted, each of the listed verbs in the statute defining the president’s powers, namely to “investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit,” is consistent with the president’s ability to “freeze” foreign-property-related transactions. To read the wordTherefore, Jackson, unlike Kagan, did not resolve the interpretive issue here on the majority opinion’s textualist terms. In fact, the justice directly attacked both the majority opinion and the dissent’s refusal to look at legislative history at all. Strikingly, Jackson suggested that legislative history may often shedThis is not the first time Jackson has directly taken on a majority opinion grounded in strictly textualist interpretation, suggesting a solidifying approach more willing to squarely challenge the conservative majority’s core judicial philosophy. In a case from last term,, the court had to resolve whether retirees are protected from discrimination under Title I of the Americans With Disabilities Act. Looking only to the text of the statute and its definition of a “qualified individual,” the majority opinion authored by Justice Neil Gorsuch held that the ADA prevents discrimination only against individuals who currently hold or seek to hold a given job.the majority’s reading of the statute, defining its methodology as “the distorted lens of pure textualism.” She argued that seeking to resolve a case by reading ambiguous statutory language alone misunderstands the judicial role. Instead, the duty of a judge is to ascertain “whatwanted, as best we can ascertain its intent.” She pointedly dismissed “pure textualism” as “incessantly malleable,” a framework “somehow always flexible enough to secure the majority’s desired outcome.” And she cited legislative history to show that members of Congress intended to include retirees in the ADA’s protections. suggest that Kagan and Jackson increasingly diverge not merely in their tactical relationship to the court as an institution. Instead, Kagan is portraying herself as a defender of a textualist status quo threatened by theories like the major-questions doctrine. Jackson, by contrast, rejects “pure textualism” in favor of legislative history and purpose. She is no longer just questioning the court’s application of textualist theories; she’s rejecting the majority’s very approach to the
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