What is the meaning of this or that word in this particular text? How should we read words? What happens when reasonable people disagree about the meaning of a sentence? Fundamentally, these are the sort of issues which the lawyer is faced with when conducting textual analysis. They are not new issues, but are inherent in the act of lawyering itself, and successful lawyers will, more often than not, be able to persuade the Court that the interpretation they suggest is the correct one. That’s the issue of practical lawyering. In our day, it is basically tied to the issue of theories of interpretation. That is, of whether the text and only the text should control interpretation, whether shifting societal values should affect the meaning of the law, or if changing common good considerations should condition the law’s interpretation.[1] I will, as the argument develops, contend that the originalists and common-good lawyers have commonalities in a shared respect for enacted text, and that the oral arguments show some commonalities in their approach. That said, I will reach that point after some lengthy discussion of the oral arguments themselves.
It was thoughts such as these which occurred to me when I was listening to the oral arguments in the Supreme Court in the much discussed tariffs case, Learning Resources, Inc. v. Trump.[2]So, what is the legal question at issue in that case? It is whether the International Emergency Economic Powers Act of 1977[3] grants the President the power to impose tariffs. The textual issue is whether the phrase “regulate importation” includes the power to impose importation fees (to use a neutral term). Justice Barrett observed that as a matter of language choice, the phrase had not ever been used to “confer tariff-imposing authority”.[4] Interestingly, Justice Kagan seemed to agree with Justice Barrett on this point.[5] However, Justice Alito differed from his fellow textualist Justice Barrett in seeming to think that the regulating importation is equivalent to the imposition of tariffs.[6] To my mind, he seemed to be swayed by the argument that the phrase “regulate importation” is a capacious term in that he drew an analogy to a hypothetical statute that confers authority to the National Park Service to regulate admission to a park in which the term “regulate” would reasonably be held to allow the agency to impose a fee for entry.[7] So, arguing from analogy, as a matter of “bare statutory language” he felt that the term was wide enough to encompass tariffs.[8] He also felt that the nature of the statute, as one intending to confer emergency powers, was “phrased more broadly than other statutes” (the factual issue of the existence of an emergency being separate from the legal question of the wideness of the words themselves).[9]
On this divergence among the textualists, Emily Bazelon in the New York Times, in my view, makes a comment which goes to the heart of the matter, though one might disagree about her interpretation of the problem. Bazelon observes that for the textualist, if she does not think that a word purported by an authority to be the source of a power in its meaning does not embrace that power, it is automatically excluded.[10] So, verbal analysis is king. If a word does not mean what it is purported to mean, “For textualists, that should be a death knell”.[11] However, among the textualists on the Court there is clearly a disagreement. Justices Barrett and Alito, for example, “clearly read the same words differently”.[12] She, therefore, interprets this situation in this way: “To me, it’s a great example, among many, of why textualism does not point to The One True Answer of how to interpret a law in the way that adherents of this method often claim it does”.[13]
What was the point of me rehearsing all this? Clearly, it is not the specific issue of whether the President has the statutory authority to impose tariffs which I intend to take up here. But rather, I see here a clear example whereby we might briefly consider the problems texts themselves raise when we interpret them. The oral argument Attorney General Sauer made in the tariffs case relied heavily on the correct meaning of “regulate importations” being, in his words, “capacious”.[14] Either the Justices agreed with this, or they disagreed with this. Indeed, even though Justice Barrett said that she agreed that ‘regulate’ had was a broader term in that definitionally it was capable of a wider range of meanings than, e.g., ‘void’, in considering the statute itself (in its legislative context) she implicitly disagreed that Congress in actuality had given the word a capacious meaning.[15] What I mean to say is that interpretation is, in part, about determining at what level of generality it is right to read a given provision. The bare text itself does not tell us how to do this. We must bring additional tools to bear on the text where it presents ambiguities of meaning, as it does in the tariffs case, which (of the nature of the thing) go beyond the bare text itself. The intellectual problem regarding textual analysis is, therefore, how we are to do this and how far it is valid to use external aids to interpret a text. It is in this sense that Bazelon and progressive theorists criticize textualists in saying that the textualist approach does not, in Bazelon’s words, provide “The One True Answer” to legal interpretation.[16] I think in assessing the validity of this view, we need to determine the limits of reading a text in terms of fit and justification.
Let me elaborate. There is agreement among all the Justices, at least in the oral arguments, that the question is that of verbal meaning. For the textualists, they have a general methodological commitment to have the verbal meaning of the text control its effect, stare decisis excepted. However, there is clearly a disagreement between them about the very meaning of the terms. At this point, two differing things may be said. First, that disagreement is part and parcel of textual analysis and that it does not disprove textualism, but rather merely shows that reasonable people may disagree as in any other part of life. Disagreement does not negate the truth of the thing, for the specific truth-content of the thing is what is in dispute. All this is true so far as it goes, but it is incomplete. For the existence of such disagreement itself shows that the pure semantic content of a text does not intrinsically contain the solution to the dispute. Rather, there must be a normative argument made to justify the rectitude of either side of the argument. Given, justification itself does not resolve stubborn disagreement, however, the fact that justification must be resorted to proves that, in the nature of things, a text itself is not self-illuminating. That a text may be perspicuous is a particular quality of any given text, but not inherent to the nature of texts. So, at bottom, interpretation is undergirded by normative considerations which require us, even as we are focussed on finding the accurate textual meaning, to consider other factors which condition and illuminate that meaning. Fidelity to the text itself requires looking beyond it to normative values which undergird the text.
This is, essentially, an idea I am indebted to Dworkin for, though I add that I am not a Dworkinian.[17] The hearing affords us several examples of the fit and justification process, and I will refer here only to a handful of these. So, as to fit, the Justices attempt to have their interpretations of the phrase “regulate importations” accord with the prior law, which is most evident with Justice Barrett’s line of questioning. However, Justice Alito’s also questioning, in that it considered precedent and the semantic content of the phrase also sought to fit the interpretations he was interrogating into the prior law. As for justification, Justice Gorsuch (for those sceptical of the Solicitor General’s arguments) indicated that he found it difficult to allow the argument for the President whilst also abandoning any “intelligible principled test” to prevent Congress abdicating its legislative authority or its authority over the declaration of war etc.[18] Justice Gorsuch, as a part of justification, also notes that in the practical exercise of Congressional authority, it is unlikely that the President would assent to any Bill reducing his power to impose tariffs. “What President’s ever going to give that power back? A pretty rare President”.[19] “So Congress, as a practical matter, can’t get this power back once it’s handed it over to the President. It’s a one-way ratchet towards the gradual but continual accretion of power in the executive branch and away from the people’s elected representatives”.[20]
Justice Gorsuch’s third justificatory reason is a historical-contextual reading of the Constitution in that he notes that during the American Revolution it was the non-local Parliament “asserted the power to tax to regulate commerce. [Also] We had a lot of pirates in America at the time. And […] Americans thought even Parliament couldn’t do that; that that had to be done locally through our elected representatives”.[21] Whereas tariffs effectively impose a tax on Americans, because domestic importers either have to absorb the cost or pass it directly on to the American consumer, the tariff power may be characterized as a “power to reach into the pockets of the American people”, a tax.[22] Congress alone has the constitutional allocation of the taxing power.[23]
Justice Alito likewise engaged in justificatory questioning, notably where he interrogates Mr. Katyal about whether the President would impose tariffs in a national emergency which threatened war with a foreign power.[24] He seemed, at the time, sympathetic to the capacious reading of the phrase “regulate importations”. For he pressed Mr. Katyal, and seemingly performed a reductio ad absurdum:
“[JUSTICE ALITO:] Could a President under this provision impose a tariff as a way of trying to stave off that war, or would you say, no, the President lacks that power under this provision?
MR KATYAL: Couldn’t do tariff but could do quota, embargo, all of those things.
JUSTICE ALITO: Could do all those things, but the President could not impose a tariff.
MR KATYAL: Because there’s a cat–
JUSTICE ALITO [cutting off Mr Katyal]: That’s the one thing he couldn’t do.”
The exchange continues in that vein, with Mr. Katyal responding to Justice Alito that whereas the Hon. Justice seemed to be incredulous that the President lacked such a power even if the purpose for its exercise was not tax-related but rather because he “wanted to deter aggression that would bring the United States into war”,[25] Justice Alito had himself said that it is the action done and not the subjective purpose which is that by which the legality of an action is judged.[26] Nevertheless, Justice Alito’s reasoning seems to imply an argumentum a maiori ad minus, an argument from the greater to the smaller; which is to say, if the President has all these many powers, it is reasonable that he has the tariff power which is analogous to them. This is quintessentially justificatory reasoning.
In reading the transcript of the oral argument, I found it hard not to see the affinities in the sort of arguments which were made and some elements of the common good framework which Adrian Vermeule has proposed.[27] I mean to develop here my comments on the fit and justification approach. The arguments all attempted to fit the proposed interpretations into the existing structure of law, while forwarding justifications, variously grounded in the separation of powers, deference, national security, “in light of a political morality of the common good”.[28] This includes arguments about the role of the political branches in law, a determination which requires determinations about “a morality of institutional roles”, which is part of the wider political morality of the common good.[29] In this sense, it seems that the common good framework is, in the majority of cases, difficult to distinguish from the originalist-textualist approach.
For sure, they are not identical and in certain hard cases divergences between an originalist and a common-good lawyer may emerge. The clearest example of such a divergence is that on the 14th Amendment where an originalist is likely to interpret the due process clause more narrowly regarding abortion, as in Dobbs, than the common-good lawyer (like Vermeule)[30] on the question of whether it is constitutionally prohibited. However, the common-good lawyer is a “presumptive textualist” and uses similar tools to resolve hard cases,[31] particularly when it is a matter of purely positive law, as the question in Learning Resources is. The only problem is that some originalists are wont to pretend that they are only concerned with the ‘fit’ half of the fit-justification method; whereas, it is impossible that they do not engage in some level of justification. In this sense, it is quite right to say that purely verbal analysis of legal meaning with very limited tools is not the One True Answer to the lawyer’s problems. Indeed, it never has been, not even when the lawyer has claimed it has. Fidelity to the letter of the law itself often requires that the originalist engages in justification. I think this is perhaps some positive ground on which the discussion between the originalists and the common-good lawyers might develop. For whilst they do have differences, they are both, in a very real and meaningful sense, textualists. I think the oral arguments in the case at hand go some way in showing this. It is on the grounds of textualism and how best to conduct it that the discussion between originalists and common-good lawyers may develop. They have talked past each other for several years now, and it is well that the discourse should move on from the present stalemate.
Photo credit: Public Domain.
[1] cf. Adrian Vermeule, Common Good Constitutionalism (2022 Polity Press)
[2] Learning Resources, Inc. v. Trump (Docket No. 24-1287)
[3] 50 U.S.C. § 1702
[4] Learning Resources, Inc. v. Trump (Docket No. 24-1287), Transcript (Heritage Reporting Corporation, 5 November 2025) p. 25 lines 14-19, p. 26 lines 9-25, p. 27 lines 1-21
<https://www.supremecourt.gov/oral_arguments/argument_transcripts/2025/24-1287_b07d.pdf> accessed 19th November 2025.
[5] Ibid, p. 30 lines 10-25, p. 31 lines 1-8: “JUSTICE KAGAN: Yes, but if I can just stop you there, regulatory power, I mean, yes, it says “regulate,” but I’ll broaden out Justice Barrett’s question: Is there any place that you can find in the entire Code where “regulate” used just as “regulate” includes taxing power?
GENERAL SAUER: We don’t assert that. We say it includes tariffing power when it’s combined with “importation.” And that’s just the most natural way to –
JUSTICE KAGAN: Right. Because the natural understanding of “regulate,” even — even though, in fact, we can regulate through taxes, but when the Code uses “regulate,” we don’t typically understand it to refer to duties or taxes or tariffs or anything of the kind.
And then, if you look at the flip side of this and you look at all the tariff statutes that Congress has passed, I mean, they use language about revenue-raising, tariffs and duties and taxes, all the language that does not appear in the statute you rely on.”
[6] Ibid. p. 110 lines 5-25, p.111-112
[7] Ibid p. 110 lines 16-22, p. 111 lines 5-9
[8] Ibid 110, lines 5-10
[9] Ibid 127, lines 11-20
[10] Emily Bazelon and David French, ‘A Fresh Way for the Supreme Court to Split’ (New York Times, 6 November 2025) <https://www.nytimes.com/2025/11/06/opinion/supreme-court-tariffs-venezuela-national-guard.html> accessed 19th November 2025
[11] ibid
[12] ibid
[13] ibid
[14] Transcript, fn. 4, p. 11 lines 23-25, p. 12 lines 1-3
[15] Ibid p. 28, lines 20-24
[16] Emily Bazaelon, fn. 10
[17] See, in general, Ronald Dworkin, Law’s Empire (1986, Belknap Press)
[18] Transcript, fn. 4 p. 66 lines 4-14, p. 68 lines 6-10
[19] Ibid p. 72, line 20
[20] Ibid p. 74, lines 14-20
[21] Ibid p. 183, lines 11-25, p. 184 lines 1-7
[22] Ibid p. 183, lines 15-16
[23] Ibid, lines 11-15; U.S. Const. Art. I, §6, cl. 1: “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States”.
[24] Ibid, p. 115, lines 13-16
[25] Ibid, p. 116, lines 10-12
[26] Ibid, lines 16-19
[27] Adrian Vermeule, Common Good Constitutionalism (2022, Polity Press) 69
[28] Ibid.
[29] Ibid.
[30] Ibid, 190n103 where Adrian Vermeule expressly states: “[…] Suffice it to say I believe there is a straightforward argument, not on originalist grounds, that due process, equal protection, and other constitutional provisions should be best read in conjunction to grant unborn children a positive or affirmative right to life that states must respect in their criminal and civil law. This view is not a mere rejection of Roe v. Wade, but the affirmation of the opposite right, and would be binding throughout the nation.”
[31] Ibid.
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