Phil Magness explains how Justice Clarence Thomas went awry in his dissenting opinion in Learning Resources. Here’s his conclusion:
In 1774, Thomas Jefferson prepared a lengthy legal treatise outlining the causes of the colonies’ protest against the crown. Its text became something of a rough draft for the Declaration of Independence’s list of reasons for their separation from Britain. As Jefferson wrote, “The exercise of a free trade with all parts of the world, possessed by the American colonists, as of natural right, and which no law of their own had taken away or abridged, was next the object of unjust encroachment.” Jefferson followed this indictment with a detailed survey of the acts of the British Parliament that intruded upon American commerce with the world, both by taxation and regulatory restriction. Jefferson clearly situated these offenses under the legislative acts of a parliament in which the colonists had no representation. As he concluded his section on trade restrictions, “The true ground on which we declare these acts void is, that the British parliament has no right to exercise authority over us.”
Justice Thomas and his defenders would be wise to consult Jefferson’s words as they apply to the present tariff controversies.
Also unimpressed with Justice Thomas’s Learning Resources dissent is John Grove. A slice:
By overtheorizing the textual basis of nondelegation, Thomas’s vision would seem to allow Congress to drastically transform the constitutional order authorized by the document’s ratifiers.
Today, the Liberty Justice Center filed, Burlap and Barrel, Inc. v. Trump, a lawsuit challenging Donald Trump’s massive new Section 122 tariffs. LJC is the same group that I worked with on V.O.S. Selections v. Trump, the IEEPA tariff case decided by the Supreme Court last month. I am not one of the attorneys on this new case. But I completely support it and its objectives. This case is the second challenging the Section 122 tariffs, following one filed by 24 state governments, last week.
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In a recent Boston Globe article, I explained why the enormous Section 122 tariffs are illegal. In addition to going beyond the statutory text, they also run afoul of the “major questions” doctrine, and nondelegation limits on Congress’ power to delegate its authority to the executive.
Phil Magness tweets: (HT Scott Lincicome)
At a 1984 Senate Finance Committee hearing they asked Marty Feldstein if Section 122 could be used to impose tariffs to counteract the trade deficit. He answered no, and succinctly explained why this was a confusion of terms.
Trump’s new tariffs are illegal.
But for those beginning adulthood when the virus hit, Covid is impossible to forget. I spent 17 months of college at home, enduring a blur of camera-off Zoom classes and unmuting to “raise one’s hand.” When I returned in fall 2021 for my junior year, Harvard allowed no more than 10 people to socialize in a dorm room at once, despite mandatory vaccination, weekly testing and 10 days of isolation in a hotel room if we got sick. We had to wear masks at all times, including in the dining halls. It was harder to recognize people, communicate with friends and understand lectures.
It didn’t help that my college and a slew of others launched anonymous hotlines for students to report Covid rule violations. Most students shrugged off the mask mandate, but some stared daggers if your mask wasn’t perfectly fitted—or if you flashed a bare face on a walk outdoors. Campus inched closer to a surveillance state than a college community.
Kimberlee Josephson writes wisely about economic productivity.
Bill Nye “The Science Guy” invokes everything except science in his criticism of the Environmental Protection Agency’s rescission of its 2009 finding that greenhouse-gas emissions endanger public health (“The EPA Is Wrong About Greenhouse Gases,” Letters, Feb. 25).
Contrary to the EPA 2009 predictions: There has been a decline in smog levels from 1980 to 2024. There has been no trend in hurricane numbers or intensities since 1973. The Intergovernmental Panel on Climate Change finds no change in global flooding. There has been no trend in the EPA heat wave index since 1895, except for the 1930s. Several studies show a decline in net mortality from heat and cold. U.S. wildfires have declined sharply since 1926, and global wildfire acreage declined 24% between 1998 and 2015. Global droughts have declined about 0.5% per decade since 1950. Global per capita food production has increased 40% since 1980. And the latest peer-reviewed research reports no acceleration globally in sea-level rise. The Science Guy’s argument is fact-free.
David Henderson exposes “Ellen Wald’s misunderstandings about gasoline shortages and oil markets.”
