1/ There’s a strong chance the Supreme Court will release its IEEPA Tariff opinion this morning, so I want to go over why the case is so important and what I’ll be looking for in the opinion. TLDR: the Constitution’s separation of powers is at stake. **

2/ Obviously, one reason the case matters is because Trump 47’s tariffs are substantively massive enough to reshape global trade patterns. The IEEPA tariffs at issue in the case accounted for about $133.5 billion out of $250 billion in revenue (through mid-December). **

3/ If these tariffs are ruled illegal, presumably that $133B will need to be returned to the importers who paid it, that’ll be a big deal. Going forward, the admin will use other legal tools to cover some of the same goods, but those tools are mostly slower and more constrained. Excellent amicus from @scottlincicome, @cpgrabow, and @clark_packard persuasively argues that refunds will not be fiscally catastrophic, nor would they be administratively infeasible. (At the same time, managing their timing might give the admin a helpful tool for stimulating the economy ahead of the midterm elections.) supremecourt.gov/DocketPDF/24/2… **

4/ So the tariffs themselves are important, but the stakes for our constitutional system are much bigger. The admin says the president can take an ambiguous emergency power and use it as the basis to launch a world-changing program. Their logic amounts to: a long-ago Congress empowered the president to look after the nation, and the president can use this power as he sees fit, even if that means changing tariff rates every morning, and even if it means trying to correct a trade deficit problem by slapping tariffs on countries with which we have a trade surplus. **

5/ Today’s Congress is made thoroughly irrelevant if the admin’s interpretation wins the day. SCOTUS has shown that it doesn’t like that pattern in recent years, developing the Major Questions Doctrine and striking down numerous Biden and Obama policies as impermissible overreaches. The big question: is the conservative court willing to hold a Republican president to the same standard? Even if they don’t invoke the Major Questions Doctrine itself, the question facing the court is whether the executive branch ought to be allowed to circumvent Congress, even on the biggest policy initiatives. **

6/ Interestingly, another angle that the court could take doesn’t seem to have gotten much attention: bogus emergencies. For Trump to use IEEPA, he had to declare an emergency, and he goes through the motions of associating tariff changes with that emergency (even if the rationales often don’t make any sense). “National security” gets tossed around with great abandon, but courts have been very reluctant to second-guess the executive. After all, if there is a real emergency, they don’t want the executive to be hindered by excessive process requirements. Some, like John Yoo, have argued that the Court ought to use the IEEPA case to take a stand against abuse of emergency powers, but if the Court did so, that would be a big surprise. nationalreview.com/2025/11/trumps… **

7/ If a large majority of the justices gets together to knock out the IEEPA tariffs, they could strike an important blow for the ongoing relevance of Congress—that is, for the need to build coalitions on the way to undertaking massive policy initiatives. That would be a good start in deflating the massively overblown presidency, and perhaps in making our politics a little less crazy. On the other hand, it’s easy to imagine the justices narrowing this decision (or splitting a few different ways on the rationale) such that it would have limited big picture importance. We’ll see! **

8/ For more of my thoughts on the interpretive and constitutional issues at stake (mostly focused on the Biden student loan case), see my National Affairs piece. nationalaffairs.com/publications/d… **

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More from @PhilipWallach

Aug 29, 2025

1/ First impressions from the decision holding the IEEPA tariffs impermissible: p 30: When Congress wants to delegate tariff powers to the executive, it is good at being clear about that. It has done it many times! It did not do it here.

2/ p 31: "Regulate" and "tax" are legally distinct, with entirely different lineages, and there’s no sense pretending they are one and the same.

3/ p 33-34: This falls squarely within the major questions doctrine, which requires that big executive branch changes have clear statutory grounding, rather than being pegged on some ambiguity.

Read 14 tweets

Sep 17, 2024

I wanted to show how pervasive leadership dominance of the legislative process has gotten. After discovering the excellent data provided by @Libgober, I whipped up this graph—and, wow, it’s even more dramatic than I realized.

118th is still incomplete, so that last data point is in flux. But the takeaway here is clear: a vast majority of legislating in the House now happens through giant omnibuses. If you want your bill to move, you need to get it a ride—which means you need leadership’s help.

“Hitching a ride” is nothing new; there’s a very good 2001 book on the subject by Glen Krutz. But what was a very important phenomenon has now become nearly the whole shebang. ohiostatepress.org/books/titles/9…

Read 4 tweets

Sep 17, 2024

Congress is struggling: however you measure, the 118th is on pace to be the least productive in living memory. Instead of self-gov’t, we get exec-driven gov’t, with policies made up by White House lawyers and then bitterly fought out in court. So what can we do to fix it? 🧵

I’ve been privileged to work w/ former members and staffers of the House, scholars of the institution, and people with deep knowledge of the chamber’s rules. Our @HooverInst @SunwaterInst Task Force report is out today with our recommendations.

@HooverInst @SunwaterInst We want to empower all legislators to do the work the American people sent them to Washington to do. That means making it easier for bipartisan majorities to work their will, and it means re-centering committees, which are the engine of serious policy work in a healthy House.

Read 14 tweets

Oct 23, 2023

1/ As we consider where House GOP goes next, consider some ancient history: After McCarthy’s removal on 10/3, the GOP Conference met to pick his successor on Wed 10/11. Maj. Leader Steve Scalise defeated Judiciary Committee Chairman Jim Jordan in the conference vote, 113-99.

2/ That was very underwhelming, especially for the House GOP’s #2. (Scalise had, at best, lukewarm support from McCarthy.) But it was a decision, nevertheless, and the party might still have hoped to regain some kind of normal trajectory if it just made Scalise Speaker.

3/ Instead, the next day, 16 members came out against Scalise: Good, Mace (who had voted to oust McCarthy), Boebert, Cloud, Clyde, MTG, Massie, Max Miller, Moore, Ogles, Perry, Roy, Santos, Self, Smucker; and Gimenez, who was McCarthy or bust. washingtonpost.com/politics/2023/…

Read 18 tweets

Mar 18, 2020

1/ It’s taken me a little time to wrap my head around everything that’s happened, but I think I now have a sense of the politics of this crisis. Some observations.

2/ It strikes me that we in the U.S. have had 3 main phases to date. A) Denial - a sense that this virus was a bad thing happening in other places, and fundamentally didn’t have anything to do with us. B) Minimization - a sense that it just wasn’t going to be that bad for us.

3/ And now we’ve moved into: C) Public Health Rout - a sense that we have no choice but to do whatever our public health professionals say we can do. The last vestiges of the minimization mindset are being rooted out, and there is remarkably little thoughtful skepticism allowed.

Read 9 tweets