prior probability

Why are the Insular Cases of yore relevant to the current batch of Trump tariff cases of today? Although the legal issues are different, the Insular Cases are still relevant today because they show us how the “constitutional law game” is really played. Let me explain.

As we saw in my previous post, Downes v. Bidwell, one of the leading Insular Cases decided by the Supreme Court in 1901, involved a genuine legal dilemma: two conflicting constitutional provisions. One part of the U.S. Constitution (the Uniformity Clause in Article I) declares that “all duties, imposts, and excises shall be uniform throughout the United States,” while another part of the Constitution (the Territory Clause in Article IV) gives Congress the “Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” In other words, Downes is a quintessential hard case.

The deeper problem with Downes, however, is that instead of trying to resolve this tension between these conflicting constitutional provisions, the Supreme Court ended up deciding — by a narrow 5 to 4 margin no less — that the Uniformity Clause does not apply to Puerto Rico in the first place! Why not? Because the newly-acquired territory of Puerto Rico was somehow not a part of the United States, or in the infamous words of one of the judges of the Supreme Court (Henry Billings Brown), the Island was “foreign to the United States in a domestic sense.”

Now, let’s fast-forward to 2 April 2025, when President Trump signed Executive Order 14257 (see here). Among other things, Trump’s executive order invokes the International Emergency Economic Powers Act of 1977 (IEEPA) to impose a baseline 10% tariff on all imports into the U.S. (except on most imports from Canada and Mexico). Two weeks later (16 April), a group called the Liberty Justice Center (LJC), a so-called “public interest” law firm like the ACLU or NAACP, decided to challenge President Trump’s executive order in court (V.O.S. Selections, Inc. v. United States), and just last week (28 May), the LJC won a major battle in this tariff legal war: a three-judge panel of the Court of International Trade unanimously ruled that President Trump does not have the authority to impose tariffs under IEEPA. (The case is now on appeal.)

For my part, when I first heard about this case back in April, I thought it was a no-brainer for two reasons: one is that the power to impose tariffs belongs to Congress under Article I of the Constitution, not the president, and in any case (pun intended), the other reason is that the text of IEEPA does not refer to tariffs or import duties. Likewise, when I first studied the Insular Cases in law school — it was my friend and classmate Carlos Soltero, not a professor, who first brought this line of cases to my attention — I too thought it was another no-brainer: Congress may have the power to “make all needful Rules and Regulations” for U.S. territories under Article IV of the Constitution, but at the same time, Congress is bound by the rules set forth in Article I when making such rules and regulations, right?

Somehow, however, five justices of the Supreme Court in Downes v. Bidwell found a way to allow the Congress to have its cake and eat it too — i.e. allow the Congress to violate the plain words of Article I of the Constitution when legislating for Puerto Rico — by inventing out of whole cloth a completely made-up legal rule that continues to be “good law” to this day: the so-called doctrine of “unincorporated” territories, a doctrine that is found nowhere in the Constitution itself. We can now begin to see the relevance of Downes to a case like V.O.S. Selections.

Simply put, the larger lesson of a case like Downes v. Bidwell is a cruel one: the judges of the Supreme Court are not always bound by “law”, especially when the stakes are really high. (Yeah, I still haven’t forgotten Bush v. Gore!) Sometimes, these “judges” are just legislators in robes: they will, pardon my frankness, make shit up during their secret deliberations in order to reach whatever result a majority of them happen to think is the most expedient one. In short, if you want to fight Trump’s tariffs, we will need the Congress to step in at some point. If you put all your eggs in the Supreme Court basket, you will most likely be let down.

In my next few posts, I will revisit Trump’s aborted attempt to unilaterally abrogate the U.S.-Mexico-Canada free trade treaty earlier this year. Although Trump eventually backed down, this now-forgotten chapter in Trump’s destructive trade war may shed light on Gödel’s Loophole, a logical contradiction hiding in plain sight inside the U.S. Constitution.

As I mentioned in a previous post, I see some possible parallels between Downes v. Bidwell, one of the infamous “Insular Cases” decided in 1901, and President Donald J. Trump’s controversial “Liberation Day” tariffs. Although Downes v. Bidwell involved an act of Conrgess (the Foraker Act of 1900), while the Trump tariff cases involve presidential executive orders, one important parallel is that both sets of cases involve trade.

In Downes v. Bidwell, the plaintiff (Samuel Downes) had imported a shipment of oranges from Puerto Rico, a newly-acquired U.S. territory, into the Port of New York. When his shipment arrived, the U.S. customs inspector for the port of New York (George Bidwell) imposed import duties on Downes’ shipment under the Foraker Act of 1900. (Among other things, the Foraker Act established a civilian government for Puerto Rico, which had been acquired by the United States in 1898 and was under U.S. military rule until the passage of this law. In addition, the Foraker Act also levied customs on all imports from Puerto Rico into the United States.)

Downes then challenged Bidwell’s action under the Uniformity Clause of the U.S. Constitution (Article I, Section 8, Clause 1), which declares that “all duties, imposts, and excises shall be uniform throughout the United States.” Since the Foraker Act singled out Puerto Rico for import duties, Downes argued the Foraker Act was unconstitutional. Puerto Rico, however, was a territory, not a State, and the Territory Clause of the U.S. Constitution (Article IV, Section 3, Clause 3) gives Congress the “Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.”

In other words, Downes v. Bidwell involves two conflicting constitutional provisions. On the one hand, the Uniformity Clause in Article I creates a level economic playing field inside the United States by requiring all internal excise taxes, import duties, etc. to be the same “throughout the United States,” but at the same time the Territory Clause in Article IV appears to give Congress plenary power over U.S. territories, including the power to impose import duties. How do we resolve this conflict?

In addition to this particular tension, the Insular Cases as a whole present the following open-ended constitutional question writ large: even if Article I trumps Article IV (i.e. even if the Congress is bound by the rules set forth in Article I when making rules and regulations for U.S. territories), was Puerto Rico legally part of the United States at the time this case was decided, or was it “foreign in a domestic sense” as the Supreme Court would enigmatically rule in 1901? Suffice it to say that a similar internal constitutional conflict and open-ended question will emerge when we take a closer look at the current batch of Trump tariff cases in my next post.

That is the title of my most recent work-in-progress with Alain Alcouffe (University of Toulouse). Below the fold is our revised introduction (footnotes omitted):

You may have heard by now that two different federal courts have invalidated most of President Trump’s tariffs. Below are some relevant links via the Volokh Conspiracy blog:

1. We Won Our Tariff Case!
2. Federal Circuit Issues Brief Administrative Stay in Our Tariff Case
3. From Stanford Prof. Michael McConnell on the Tariff Decicions

Both cases, however, are now being appealed, and in the meantime, Professor Jack Goldsmith (Harvard Law School) has identified in this blog post some technical flaws and doctrinal soft spots in these recent rulings. To the point, although the text of the International Emergency Economic Powers Act (IEEPA) does not refer to tariffs or duties at all, this law confers on the president the sole — and, by logical implication, non-judicially-reviewable — power to declare national emergencies in response to “any unusual and extraordinary threat” against the United States.

Alas, who gets to decide what constitutes an “unusual and extraordinary threat”? For my part, I see some possible parallels between the current batch of tariff cases and Downes v. Bidwell, one of the infamous “Insular Cases” decided in 1901. I will discuss these parallels next week. Bonus link: Why Trump likes tariffs.

Alain Alcouffe and I now wish to conclude our series of blog posts on “Adam Smith and the salons of Paris” with a question and with a tentative observation. Specifically, did the salons of pre-revolutionary Paris have any influence on Smith’s intellectual development? Or more generally, why does it matter whether the Scottish philosopher attended some soirées or soupers at these salons during his 1766 sojourn in the French capital? After all, although some scholars claim the salons played a central role in Europe’s literary and intellectual circles, others have painted a less rarified and more snobbish picture of these sumptuous spaces as frivolous and light-hearted affairs. (See, for example, the scholarly work by Antoine Lilti posted below.) Whichever of these competing pictures of the pre-revolutionary salons is the more accurate one, our tentative conclusion is that Smith’s mere presence in these salons may represent a turning point in his intellectual development. Why? Because the salons were not just a special space to exchange ideas or engage in polite conversation; they also epitomized the opulence and luxury of 18th-century Europe and thus may have informed Smith’s argument on the “Progress of Opulence in different Nations” (see Book III of Smith’s Wealth of Nations) and his overall view of “commercial society” more generally. But just how much influence, and in which direction? Those questions will be the subject of future research.

In addition to the Parisian salons of Madame du Deffand, the Duchesse d’Enville, and the Comtesse de Boufflers (see our previous posts in this series), the Scottish philosopher and political economist Adam Smith also visited several other noteworthy places in the City of Light during his Paris sojourn in 1766:

• On 2 March, he attended a play at the Comédie-Italienne in the former Hôtel de Bourgogne on the rue Mauconseil (see Horace Walpole’s travel journal).
• On 15 March, he visited the Scots College in Paris (Collegium Scoticum or Collège des Écossais) on the rue du Cardinal-Lemoine (ibid.).
• On 7 April, he dined at the townhouse of Lady Mary Chabot (ibid.). (Nota bene: Although we are not 100% certain, Alain and I believe Lady Mary Chabot might refer to Lady Mary Apollonia Scholastica Stafford-Howard (1721–1769), the daughter of William Stafford-Howard, 2nd Earl of Stafford, and the second wife and widow of Guy Augustus de Chabot-Rohan (1683-1760), who was also known as the comte de Chabot; in the meantime, we are still researching the precise location of the Chabot townhouse.)
• On 4 June, he most likely celebrated the birthday of King George III at the British Embassy in Paris, which was located in the Hôtel de Brancas, also known as the Hôtel de Lassay (a close-up of which is pictured below) on rue de l’Université. (Today, the Hôtel de Lassay is used as the official residence of the President of the French National Assembly and is located in the 7th arrondissement of Paris.)
• In addition to the above places, at some point in time during his Paris sojourn Smith also most likely attended the salon of the Baron d’Holbach on the rue Royale-Saint-Roch, and he may have also paid Madame Riccoboni a visit at her apartment on the rue Poissonnière.

Note: This blog post is based on the first draft of part 6 of my forthcoming paper with Alain Alcouffe, “Adam Smith and the salons of pre-revolutionary Paris” (footnotes omitted):

In addition to the celebrated salons of Madame du Deffand (see here) and the Duchesse d’Enville (here), it is also likely that Adam Smith visited the Paris salon of Madame la Comtesse de Boufflers, Marie Charlotte Hippolyte de Saujon (1725-1800), who was not only one of the most prominent salonnières of the Ancien Régime; she was also one of the most prominent Anglophiles in Paris, a femme de lettres who corresponded with and hosted such great Enlightenment figures as David Hume and Jean-Jacques Rousseau.

Among other things, Madame la Comtesse de Boufflers and her consort, the 6th Prince of Conti, Louis François de Bourbon (1717-1776), also hosted twice-weekly soirées and dinner parties (soupers) in their townhouse on the grounds of the Prince of Conti’s urbane Parisian compound, known as Le Temple. Historian Ernest Mossner describes their sumptuous soupers thus:

On Mondays the Prince de Conti was accustomed to give suppers to fifty or a hundred people. In the centre of the grand assembly room, the Prince and the Comtesse received their guests with formal dignity. The men stood in three ranks, the ladies sat on dainty chairs in a circle. But it was in the small Salon of the Four Mirrors that the distinctive reputation of the Temple was made. Mme de Boufflers was the soul of the salon, and Anglomania its prevailing atmosphere. Tea in the English fashion was served early in the evening as the last rays of the sun, reflected in the mirrors, tinted the walls with living colours. In the tradition inaugurated by the Regent to encourage free conversation, no servants were present. The ladies, wearing dainty aprons, lighted the lamps under the urns, poured the tea, cut the cakes, and passed the plates. For-incidental music, there might be a singer or a player upon the lute or the harpsichord. In the painting of Tea in the English fashion at the Prince de Conti’s made by Michel Barthelémy Ollivier in 1766, the child prodigy Mozart is seated upon a high chair before an open harpsichord. (Mossner 1980, p. 459, footnote omitted)

For visual reference, below is a reproduction of another 1766 oil painting by Michel Barthelemy Ollivier, Supper of Prince de Conti at the Temple:

The Prince of Conti’s lavish Paris compound, Le Temple, was located in the Marias district of the French capital (in today’s 3rd arrondissement), about 2.4 kilometers (1.5 miles) from the intersection of the rue de Seine and the original rue du Colombier. It was originally a medieval fortress built by the Knight Templars in the 12th and 13th centuries. Years later, Le Temple would be used to imprison Louis XVI, Marie Antoinette, and their children after the storming of the Tuileries palace in 1792. Although this historic structure was later destroyed during the tumult of the French Revolution (Mossner 1980, p. 459), it was immortalized on Plate 9 of the 1739 Turgot map of Paris, a close-up of which is presented below:

As it happens, we know that Smith and Madame la Comtesse de Boufflers met on more than one occasion. Although neither Boufflers nor the Prince of Conti are mentioned in Smith’s surviving Paris correspondence, other evidence indicates that Smith was personally acquainted with her and was a guest at her salon. In a letter addressed to her close friend and confidant David Hume, which is dated 6 May 1766, the Comtesse de Boufflers writes: “Je vous ai dit, ce me semble, que j’ai fait connoissance avec M. Smith, et que, pour l’amour de vous, je l’avois fort accueilli.” (“I told you, it seems to me, that I became acquainted with Mr. Smith, and that, for your sake, I warmly welcomed him.”) 

In other words, the Comtesse de Boufflers tells Hume that she “warmly welcomed” Smith (“je l’avois fort accueilli”). This declaration implies that Smith must have attended her famed salon at least once in the spring of 1766, i.e. during his second visit to Paris. In fact, Smith may have visited the Temple and Madame de Boufflers more than once, for in another letter addressed to David Hume, this one dated 25 July 1766, the Comtesse reports: “Je fait prier votre ami Mr Smith de venir chez moi. Il me quitte à l’instant.” (“I prayed for your friend Mr Smith to pay me a visit. He’s leaving me right now.”)

I have been following this case closely and have blogged about it before. (See here, here, here, and here.) In brief, Francesca Gino, the disgraced Harvard Business School (HBS) professor who was celebrated for her research on honesty and ethical behavior (!), had been accused of faking her research results. (See, for example, the YouTube video below.) Now, according to this report in yesterday’s (26 May) edition of the Harvard Crimson, Harvard University has revoked her academic tenure and ended her employment at HBS. For my part, I explore the possibility of extending tort liability to data fraud in my 2017 paper “Legal Liability for Research Fraud“.

A day that will live in infamy: 26 August 2021 was the third largest single-day loss of life for our US armed forces in Afghanistan — 11 Marines, one sailor, and one soldier were killed in Kabul during our precipitous abandonment of our Afghan allies. Incredibly, no one in the chain of command was held accountable for the deaths of our fallen heroes.