katyal, neal

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AN TD 11 25

My fellow Americans, this is Liberation Day … April 2, 2025, will forever be remembered as the day American industry was reborn.*

— President Donald John Trump

*This story originally appeared at TruthDig.

Donald Trump’s “Liberation Day” tariffs offer the Supreme Court a chance to turn the tables on an authoritarian president and claim a liberation day of its own. To strike down the tariffs, however, the court will have to use its favorite analytical tools — the conservative legal doctrines of originalism and textualism — to produce a liberal decision.

[

:{](https://youtu.be/9GVnXh4QG1k) in a televised Rose Garden ceremony before the iconic outdoor space was hideously remodeled as a concrete courtyard.

On Nov. 5, the Supreme Court heard oral arguments on the legality of the levies by way of a pair of consolidated lawsuits (Learning Resources Inc. v. Trump and Trump v. V.O.S. Selections) initiated by two groups of small businesses that claimed the tariffs placed crippling new taxes on them. In a hearing that lasted 2 hours and 40 minutes, the justices showed little deference to the administration’s defenses, whether originalist or textual, signaling they may finally be ready to regain a small but much-needed measure of judicial independence.}:

Since the appointment of John Roberts as chief justice in 2005, the court has deployed originalism and textualism to move aggressively rightward. When necessary to shield Trump from legal accountability, the court’s Republican supermajority has been willing to twist the doctrines almost beyond recognition, most notably in its July 2024 decision on presidential immunity, which had no basis in either the text or history of the Constitution. The court has also dramatically expanded its emergency “shadow docket” to greenlight significant parts of Trump’s political and economic agenda, lifting lower-court injunctions that had placed temporary holds on the mass firings of civil servants, the defunding of scientific research and racial profiling in immigration sweeps, to cite just a few examples.

But the Liberation Day tariffs may prove a bridge too far, even for the Roberts court. Styled as “reciprocal” measures designed to redress long-standing international trade imbalances, the tariffs imposed duties on imports from virtually every country in the world, ranging from a baseline of 10% to as high as 50% for Lesotho. Yes, Lesotho. Other nations receiving rates in the upper tiers included China, Vietnam, Taiwan, Thailand and Madagascar.

The Liberation Day tariffs may prove a bridge too far, even for the Roberts court.

In the aggregate, according to many economists, the new tariff rates exceeded those imposed by the disastrous Smoot-Hawley Act of 1930, which helped trigger and prolong the Great Depression. Since April, the rates have fluctuated wildly, depending on Trump’s mood swings and which countries have curried his favor with obsequious flattery and/or outright gifts (here’s looking at you, Switzerland and South Korea).

Trump has long been fixated on tariffs, touting them as magical cures for the nation’s budgetary woes. In his first term, he placed tariffs on steel, aluminum, solar panels and washing machine imports, and a host of other products made in China. Although the tariffs did little good for the economy and precipitated a trade war with China, they were authorized by a series of statutes passed by Congress since 1917 that delegated tariff-setting powers to the president, but which came with strict procedural, substantive and time limits on how those powers could be exercised.

During the 2024 presidential campaign, Trump repeatedly extolled the virtues of Gilded Age President William McKinley for his use of tariffs as a key driver of federal revenue before the ratification of the income tax with the 16th Amendment. If reelected, Trump promised to follow McKinley’s example. On April 2, he made good on the pledge.

In a sharp departure from the first-term levies, the April 2 tariffs were based on a complex and lengthy federal statute enacted in 1977 — the International Emergency Economic Powers Act (IEEPA), which permits the president to regulate international commerce after declaring an emergency under the National Emergencies Act. Trump had threatened to use IEEPA for tariffs in his first term, but wound up using it, as former presidents had, to impose sanctions on foreign countries and dignitaries who had incurred his displeasure, such as the leaders of the International Criminal Court, whose U.S. visas Trump suspended in September 2020.

It’s easy to understand IEEPA’s appeal for Trump and his advisers. Unlike other tariff-related statutes, IEEPA sanctions have no time limits. They can also be unlimited in scope, and require only a presidential emergency proclamation to trigger.

In keeping with IEEPA, Trump in the Rose Garden declared the country’s trade imbalances to be a national emergency and a threat to U.S. economic sovereignty, exclaiming, “For decades, our country has been looted, pillaged, raped and plundered by nations near and far, both friend and foe alike. But it’s not going to happen anymore.”

The new tariffs were off and running, except for two problems: First, Article I, Section 8 of the Constitution vests the power to tax in Congress, not the president. And second, while IEEPA gives the president the power to “investigate, block … regulate … nullify, void, prevent or prohibit” imports or exports concerning designated countries in a declared emergency, the words “tariff” and “tax” nowhere appear in the law.

These problems were front and center in the Nov. 5 oral arguments. From the outset, it was clear that Trump’s motor-mouthed solicitor general, D. John Sauer, was in deep trouble.

Sauer’s first task was to convince the court that the IEEPA tariffs were regulations, not taxes, and that any revenues they raised were incidental to the president’s powers under Article II of the Constitution to direct foreign policy. The contention seemingly convinced no one.

Justice Sonia Sotomayor was quick to point out the obvious. “This [Trump’s tariff regime] is a tax,” she remarked. “I just don’t understand your argument. You want to say tariffs are not taxes, but that’s exactly what they are. They’re generating money from American citizens, revenue.”

“Tariffs are taxes. They take dollars from Americans’ pockets and deposit them in the U.S. Treasury.”

Even the usually cards-to-the-vest chief justice joined in, observing that the tariffs constitute “the imposition of taxes on Americans, and that has always been the core power of Congress,” implying that allowing the administration to use IEEPA would violate the separation of powers, the very essence of the founder’s constitutional design.

Sauer did his best to parry the court’s skepticism, stammering and talking over the justices, “It [the tariff package] is a — it is a — if I may, it’s a foreign-facing regulation of foreign commerce.” He also argued unpersuasively that the tariffs did not run afoul of either the “major questions” or “nondelegation” doctrines that the Roberts court had used to scuttle Biden administration initiatives on student loans, environmental protection and COVID vaccine mandates in the absence of highly specific congressional delegations of authority.

By the time Georgetown University Law Center professor Neil Katyaltook his place at the lectern representing one group of plaintiffs, the case was all but over. “Tariffs are taxes,” Katyal told the court. “They take dollars from Americans’ pockets and deposit them in the U.S. Treasury. Our founders gave that taxing power to Congress alone. Yet, here, the president bypassed Congress and imposed one of the largest tax increases in our lifetimes.”

Katyal had originalism, textualism and the facts on his side. Tariffs are, in fact, taxes paid directly by importers or on their behalf by businesses operating as their agents directly to Customs and Border Patrol, which in turn passes the collected funds to the Treasury. Importers can either absorb the tariffs or raise domestic prices, adding to inflation.

In posts on Truth Social, Trump has boasted his tariffs will bring in “trillions of dollars” to the Treasury. He has also claimed the country will face economic disaster if the Supreme Court rules against him.

Despite the direction of the oral arguments on Nov. 5, it is possible that the Roberts court will find a way to rescue the president and uphold the sweeping IEEPA tariffs, or preserve at least some of them under other statutory authorities. This is, after all, a deeply compromised court that has shown in the past it is more committed to sustaining Republican power than it is to its own declared principles. In the meantime, we can hope, at least this one time, for liberation.

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2022 BULLOCK MONTANA CU

AMICUS NEAL KATYAL WHITEHOUSE MCCAIN VS MCCONN

11-1179-Senators-Whitehouse-and-McCain-Cert-Amicus

huh?

“We are consistently impressed by the quality and impact of amicus briefs authored by the Atlantic Legal Foundation. As Supreme Court practitioners, we know that amicus briefs matter to the Supreme Court. Our clients are incredibly grateful for the amicus support from Atlantic Legal Foundation in crucial cases that matter in the real world.” Neal Katyal former Acting Solicitor General of the United States Jessica L. Ellsworth & Katie Wellington Partners, Supreme Court Practice, Hogan Lovells US LLP “Atlantic Legal wrote an outstanding and valuable amicus brief focusing on the importance of sound science in regulatory proceedings. The writing and advocacy were superb – providing a credible outside perspective on the agency’s intentional exclusion of diverse scientific perspectives from a regulatory proceeding. I have no doubt that the panel gave considerable weight to Atlantic Legal’s perspective on the importance of sound science.” Brett A. Shumate Partner, Jones Day

BRIEF FOR UNITED STATES REPRESENTATIVES ROBERT BRADY, CHRIS VAN HOLLEN, ZOE LOFGREN AND CHARLES GONZALEZ

AS AMICI CURIAE IN SUPPORT OF RESPONDENTS James A. Ahlers Jerica L. Peters PERKINS COIE LLP 2901 N. Central Avenue Suite 2000 Phoenix, Arizona 85012 (602) 351-8000 jahlers@perkinscoie.com jpeters@perkinscoie.com John M. Devaney Counsel of Record Karl J. Sandstrom Brian G. Svoboda Elisabeth C. Frost PERKINS COIE LLP 700 Thirteenth Street, NW Suite 600 Washington, D.C. 20005 (202) 654-6200 jdevaney@perkinscoie.com ksandstrom@perkinscoie.com bsvoboda@perkinscoie.com efrost@perkinscoie.com Counsel for Amici Curiae

July 01, 2024

US Supreme Court lawyer and legal analyst Neal Katyal, speaking with MSNBC's Katie Phang on Monday,expressed fear that he suspects "there's something really dangerous" happening to the rule of law in the United States.

Phang noted how "stunned" legal experts were when Trump lawyer John Saul, during oral arguments in April, suggested that a president should be able to assassinate political opponents.

"Now the majority's saying that if the president says it falls within the purview of his official acts, does he now legally and officially say, 'I can commit murder?'" Phang asked Katyal.

"It's unfathomable that the Supreme Court which has been such an august body, Chief justice John Marshall, Justice Thurgood Marshall — people like that — are issuing a decision like this," the Supreme Court lawyer replied, "that allows for such things — as calling them official acts. And that's why I think you saw Justice Sotomayor [write], 'With fear for our democracy, I dissent.'"

Katyal continued, "And I can tell you, I've never seen language like this in a Supreme Court opinion or dissent. There is something really dangerous going on here, and something that is really threatening the entire basis of our constitution and separation of powers."

"My parents came to this country from another because of the principle that no one was above the law," the MSNBC legal analyst emphasized. "That's what we hold out as most dear. And now to have a Supreme Court opinion that blesses, to be sure, 100%, it blesses the president pressuring his justice department to falsely say that there were election irregularities. They say that's an official act."

"Once you go down that road, the pressure on presidents to do all sorts of untoward things is immense," the legal expert emphasized. Fortunately, for 200 years, we've elected people — Republicans and Democrats alike — who've colored within those lines. But I fear that the next one may not be so solicitous of our constitutional values and norms."

Watch the video below or at this link.

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an raw 12 22

Former acting Solicitor General Neal Katyal was the lawyer who appeared before the Supreme Court to argue in the Moore v. Harper case, and he not only came prepared, he came prepared to go after the justices with their own words.

As the counsel for Common Cause, Katyal walked through the ways in which the Supreme Court inserted itself into the state laws after previously saying that they were leaving laws up to the states to decide, which is yet another contradiction. That said, the courts claimed "states rights" for abortion but then blocked it for gun regulation.

The exchange between Katyal and Thomas began with the latter saying that he'd been wanting to ask the lawyer questions for 30 years, drawing laughter from the Court crowd.

Katyal fired back: "I've waited for this case for you because it goes to exactly how you interpret the constitution, with history." He went on to explain how the history of the courts shows just how wrong the Republican side is.

"You said this court normally doesn't second-guess state court's interpretation of their own Constitution," said Thomas. "Would you say that in the case of Baker v. Carr?"

"I don't think you declare it unconstitutional. Any number of things. To say they got their own Constitution wrong is just a matter of interpretation. That is -- " Katyal said as Thomas interrupted.

"It was purely an interpretation of their own Constitution," said Thomas.

"And violation of federal law," said Katyal

"Yeah. In the end, it was invalidating their interpretation of their redistricting principles," said Thomas.

"And Justice Thomas, it's the same point picking up on Justice Kavanaugh's questioning. Palm Beach, the court said that sovereignty was at its apex when talking about state constitutions and interpretations by state courts," said Katyal.

"Let me ask you this," Thomas stepped in again. "It may be a bit unfair. If the state legislature had been very, very generous to minority voters in their redistricting and the state supreme court said under their state constitution that this was -- it violated their own state Constitution of North Carolina, would you be making the same argument?"

"Yes," Katyal said.

"Justice Gorsuch said it seems as though it depends on -- though it depends on what ox is being gorged. You would be making the same argument?" Thomas asked again.

"This Court never second-guessed state interpretations of their own constitutions," Katyal explained, returning to his argument that the Court has never gone to war with the states like this before. "If it's a general clause and it benefits or hurts minority voters, Justice Sutton says that's the process the states deal with. There is a special safeguard here which is the second half of the elections clause which allows Congress to supplant whatever that errant state decision is."

"What is the source of the authority for the state of North Carolina's Supreme Court to be involved in a federal election?" Thomas asked. "I understand there's no disagreement about a state legislature, but this is a federal election and it's similar to the problem we had with the presidential election in Bush v. Gore."

Bush v. Gore had a provision in it that said it would only apply to that case and should never be used as case law.

"It's just like *Smiley*, your honor. It's the exact same thing. It's a federal issue. The North Carolina court is interpreting the elections clauses and powers and the question is whether or not they have misread it or not and so I think that's the source of the substantive -- alleged substantive violation here. The spirit of your question, for 233 years, this court's never gotten involved and said, hey, we're going to, you know, say the North Carolina court got it wrong or their provision was too abstract for enforcement or anything like that. Rather, this court has always stayed on the sidelines, let the state process unfold subject to that other part of the trident check, Congress, in the second half of the elections cause."

Meanwhile the debate didn't fare well with the opposing counsel, who faced off against Justice Sonia Sotomayor. At one point she told him, "It seems that every answer you give is to get you what you want, but it makes little sense."

Listen to the argument below orat this link.

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an 12 22

Wednesday, December 7, the U.S. Supreme Court began hearing oral arguments in the case Moore v. Harper — which deals with partisan gerrymandering in North Carolina and a far-right legal idea known as the independent state legislature (ISL) theory. The ISL, in its most extreme version, argues that only state legislatures should have any say in how elections are governed in individual states — not governors, not judges, not state supreme courts.

Critics of the ISL have been stressing that totally removing a state’s executive and judicial branches from the equation is anti-checks and balances and anti-democracy. It remains to be seen how the High Court will ultimately rule in Moore v. Harper, but legal writer Joe Patrice, in an article published by Above the Law on December 7, stresses that some of the best questioning during the oral arguments came from President Joe Biden’s appointee, Justice Ketanji Brown Jackson.

“Going into this morning’s oral argument on Moore v. Harper,” Patrice explains, “it didn’t really seem like free and fair democratic elections had much of a future in this country. If one were so inclined, the smart money said the Supreme Court would functionally cancel democratic elections…. Across hours of oral argument, Justice Jackson asked the most succinct and ultimately damning question that might save the day. Or at least minimize the impact.”

During the oral arguments, Jackson obviously had a problem with the idea of excluding a state’s executive and judicial branches from governing elections.

The Biden appointee told her colleagues, “I guess I don’t understand how you can cut the state constitution out of the equation when it is giving the state legislature authority to exercise the legislative power.”

With that comment, Patrice argues, Jackson showed just how “absurd” the ISL is.

“She actually asked this question in different phrasings a few times, but it’s really the only question anyone needs to answer,” Patrice explains. “If state constitutions create state legislatures, then how can state legislatures violate state constitutions? It ceases to be a constitutionally ordained legislature at that point!”

Patrice continues, “It’s a chicken and egg problem — except it’s more like which came first, the chicken or my dinner tonight — with a single obvious answer. If the state constitution sets guardrails of voting rights and the proper deference required to courts and the executive, then the legislature can only work within that. The GOP argued that, because the word ‘Legislature’ is in the U.S. Constitution, it elevates state legislatures above the constraints of their own state laws for this purpose, but no one — original or otherwise — ever entertained that idea. Indeed, it would be absurd to think the Framers, at the time, intended to dictate to the states how their governments should function. ‘Legislature’ is whatever the state chooses to create with all the checks and balances attendant to its own laws — just like it’s been for over 200 years.”

Patrice also praised attorney Neal Katyal, who gave the High Court justices aggressive oral arguments against the ISL.

“At the top of Katyal’s argument,” Patrice notes, “he cited the two centuries of election law and declared that it would be ‘a whole lot of wrong’ if ‘Legislature’ meant what the GOP asked for as opposed to how Justice Jackson posed her question…. Make no mistake, Chief Justice Roberts is on record buying into a watered-down version of this theory and will, after today’s battering, probably cobble something together that shields Republican legislatures without straining the outer bounds of basic notions of constitutional governance.”

Patrice adds, “But whatever compromise the conservatives try to mold will remain haunted by Jackson’s straightforward question. Which came first, the state constitution or the state legislature? It’s the constitution. It’s always going to be the constitution.”

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an 8 22 ah

Since leaving the White House, former President Donald Trump hasn’t been shy about lambasting former U.S. Attorney General Bill Barr— who he now despises for refusing to go along with the Big Lie and Trump’s false, totally debunked claim that widespread voter fraud occurred in the 2020 presidential election. Trump now views Barr as a Republican who, like former Vice President Mike Pence, didn’t have the courage to stick by him.

But before the election, Barr’s critics often slammed him for being a Trump loyalist who defended Trump vigorously after former Special Counsel Robert Mueller delivered his final report on Russian interference in the 2016 presidential election. Attorney Neal Katyal, in an op-ed published by the New York Times on August 30, offers some reasons why a recently released March 24, 2019 memo paints such a troubling picture of Barr and his relationship with then-President Trump.

The memo, released by the U.S. Department of Justice (DOJ) on August 21, details Barr’s justifications for the DOJ clearing Trump of obstruction charges. These days, Trump views Barr as a traitor to the MAGA cause. But in 2019, he praised Barr as someone who had the backbone to come through for him in a way that former U.S. Attorney General Jeff Sessions didn’t.

“The memo released last week by the Justice Department closing the book on the report of Special Counsel Robert Mueller and his inquiry into Russian interference in the 2016 election is a frightening document,” explains Katyal, a former solicitor genreal who is often featured as a legal expert on MSNBC. “Critics have rightly focused on its substance, slipshod legal analysis and omission of damning facts. But the process by which that memo, sent in March 2019, came to be is just as worrisome.”

The attorney continues, “Delivered to the attorney general at the time, Bill Barr, the memo was written by two political appointees in the Justice Department. Mr. Barr used the memo to go around the special counsel regulations and to clear President Donald Trump of obstruction of justice. If left to fester, this decision will have pernicious consequences for investigations of future high-level wrongdoing.”

Katyal goes on to offer some more reasons why he finds the March 24, 2019 memo so troubling.As Katyal sees it, the memo is an example of the United States’ system of checks and balances being undermined during the Trump years.

“The 2019 memo tendentiously argued that Mr. Trump committed no crimes — leaving the final decision on the matter to Republican-aligned appointees instead of to the independent special counsel,” Katyal notes. “The challenge in devising the regulations was to develop a framework for the prosecution of high-level executive branch officials — which is harder than it sounds, because the Constitution requires the executive branch to control prosecutions. So, we are left with one of the oldest philosophical problems: Who will guard the guardians?”

During Mueller’s investigation, many MAGA Republicans tried to paint him as a Democratic partisan — even though the former FBI director was a conservative and a lifelong Republican who had been on very friendly terms with the George W. Bush Administration. But during the Russian investigation, Mueller’s admirers often praised him for valuing country over party. When Democrats and Never Trump conservatives used the word “institutionalist” to describe Mueller in 2017 or 2018, it was meant as high praise.

A special counsel in a federal investigation, Katyal stresses, needs to be someone who is independent rather than partisan — which Special Counsel Mueller was. But Barr, Katyal laments, undermined Special Counsel Mueller’s work in the end.

“We created the role of special counsel to fill a void — to concentrate in one person responsibility and ultimate blame so that investigations would not be covered up from the get-go and to give that person independence from political pressure,” Katyal writes. “It is outrageous that Mr. Barr acted so brazenly in the face of this framework. The point of requiring a special counsel was to provide for an independent determination of any potential criminal wrongdoing by Mr. Trump. But the political appointees in his Justice Department took what was the most important part of that inquiry — the decision of whether he committed crimes — and grabbed it for themselves. This was a fundamental betrayal of the special counsel guidelines not for some principle, but because it protected their boss, Mr. Trump.”

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