Tariffs! episode artwork

EPISODE · Mar 11, 2026 · 1H 12M

Tariffs!

from Supreme Betrayal: How the Supreme Court and Constitutional Law Have Failed America · host Mark Tushnet, Louis Michael Seidman

We take on the decision invalidating President Trump’s tariffs. Mike offers what he calls a democratic defense of a decision that would have, in his terms, preserved the status quo and let the tariffs go into effect, and offers a backup explanation that doing so would be more likely to generate a productive dialogue between Congress and the President possibly resulting in more precise delegations of authority to the President. Mark says that he doesn’t understand the democratic argument and isn’t convinced by the back up argument. Disagreement is more muted about the major questions doctrine, the second topic in the episode, where we agree that as a doctrine it empowers the courts rather than Congress, but that it might be a component of a common sense analysis of statutory language in its overall context. Finally we discuss possible explanations for how some of the justices voted, and here too a disagreement surfaces, with Mike arguing that what Mark calls superficial political explanations—country-club Republicans don’t like tariffs, Democratic appointees don’t like Trump—are important and Mark arguing that they are, well, superficial, and that interesting explanations for voting behavior lay deeper.

We take on the decision invalidating President Trump’s tariffs. Mike offers what he calls a democratic defense of a decision that would have, in his terms, preserved the status quo and let the tariffs go into effect, and offers a backup explanation that doing so would be more likely to generate a productive dialogue between Congress and the President possibly resulting in more precise delegations of authority to the President. Mark says that he doesn’t understand the democratic argument and isn’t convinced by the back up argument. Disagreement is more muted about the major questions doctrine, the second topic in the episode, where we agree that as a doctrine it empowers the courts rather than Congress, but that it might be a component of a common sense analysis of statutory language in its overall context. Finally we discuss possible explanations for how some of the justices voted, and here too a disagreement surfaces, with Mike arguing that what Mark calls superficial political explanations—country-club Republicans don’t like tariffs, Democratic appointees don’t like Trump—are important and Mark arguing that they are, well, superficial, and that interesting explanations for voting behavior lay deeper.

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Tariffs!

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How long is this episode of Supreme Betrayal: How the Supreme Court and Constitutional Law Have Failed America?

This episode is 1 hour and 12 minutes long.

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This episode was published on March 11, 2026.

What is this episode about?

We take on the decision invalidating President Trump’s tariffs. Mike offers what he calls a democratic defense of a decision that would have, in his terms, preserved the status quo and let the tariffs go into effect, and offers a backup explanation...

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