Today, I am focusing principally on the Supreme Court oral argument about the President’s authority to impose tariffs. The Supreme Court is confronting three issues, which need not all be decided. May Congress delegate tariff imposition powers to the President. If so, do the relevant statutes authorize the President to impose the statutes in question? Is so, is the necessary emergency in place/to what extent must the court defer to the Presidential determination in this case? If the tariffs are upheld, the court should answer all questions in the affirmative, which would have a very adverse effect on our constitutional democracy. There are many commentaries you can look at, but you may wish to consider the following items which are not limited to that oral argument.
I also include items about voting issues including the results earlier this week which give the resistance victories to consolidate and build upon for the nationwide midterm elections
You may wish to look at the following videos/audios
- November 4, 2025, ScotusBlog Advisory Opinions, Supreme Court Hears Oral Argument in Trump’s Tariff Case. Sarah Isgur is joined by David French, David Lat, and Latham & Watkins LLP partner Roman Martinez, but start at 7.40 minutes to avoid the sponsor pitches.
- November 5, 2025 Jews United for Democracy program entitled, Rick Hasan with Larry Mantle- Can Democracy Hold? The 2026 Midterm Challenge. Prof Hasan also discusses the implications of the election earlier this week. A replay is available at https://www.jewsunitedfordemocracy.org/past-events/
- November 6, 2025 Brian Lenhrer Show segment entitled Tariffs at SCOTUS with Aziz Huq. A replay is available at https://www.wnyc.org/story/the-supreme-court-hears-arguments-on-tariffs/ ,
You may wish to look at the following recent litigation documents:
- November 4, 2025 U.S. Supreme Court transcript of oral argument in Learning Resources, Inc. v. Trump, President of U.S. (permissibility of emergency tariffs). Notice there is almost no discussion of the existence of an emergency.
- November 4, 2025 order by federal judge Charles R. Breyer of the United States District Court of Northern District of California permitting filing of an updated preliminary injunction with respect the federalization and deployment of National Guard in California This is a consequence of the October 22, 2025 order by Ninth Circuit denying an en banc review of the three judge panel decision in Newsom v. Trump, 141 F.4th 1032 (9th Cir. 2025) that stayed pending appeal the district court TRO enjoining the Trump Administration from deploying members of the California National Guard in Los Angeles but permitted the district court to consider issuing a preliminary injunction.
You may wish to look at the following recent other documents in concert:
- November 4, 2025 Law Fare column by Benjamin Wittes, Anna Bower entitled, The Situation: Where’s the Lie? A key paragraph of this discussion of the DOJ pleading in support of the Comey indictment is
- Spoiler alert: That case is unspeakably, breathtakingly devoid of merit. To see it laid out in all its patchwork threadbaredness is to gasp with embarrassment for the prosecutors who have presented this to an American court. It is to understand why no career prosecutor in the Eastern District of Virginia would work this case and why Interim U.S. Attorney Lindsey Halligan had to import two sacrificial lambs from North Carolina to litigate the matter. To read it is to spend 48 pages understanding the depth of corruption in the Justice Department in the second Trump administration.
- November 5, 2025 Dorf on Law post by Eric Segall entitled, The Constitution in Crisis: The Supreme Need for Justice Robert Jackson’s Legal Realism. A key paragraph is the following Jackson quote
- [E]mergency powers are consistent with free government only when their control is lodged elsewhere than in the Executive who exercises them… In the practical working of our Government, we already have evolved a technique within the framework of the Constitution by which normal executive powers may be considerably expanded to meet an emergency. Congress may and has granted extraordinary authorities which lie dormant in normal times but may be called into play by the Executive in war or upon proclamation of a national emergency…In view of the ease, expedition and safety with which Congress can grant…emergency powers, I am quite unimpressed with the argument that we should affirm possession of them without statute. Such power either has no beginning or it has no end. If it exists, it need submit to no legal restraint. I am not alarmed that it would plunge us straightway into dictatorship, but it is at least a step in that wrong direction.
- November 6, 2025 Popular Information posting by Rebecca Crosby, Noel Sims, and Judd Legum entitled, Six election results that didn’t make the headlines. The posting refers to electoral results in the deep red states of Georgia, Mississippi, and Texas, as well as Maine and Colorado which I mentioned in an earlier post.
– Albert Feuer