This is easy to say in hindsight. There was a non-zero chance the decision could have went the other way. Also, companies aren't stupid. They don't buy insurance against things that are impossible.
And the supreme court doesn't hear cases that are 100% obviously illegal.
Companies don't want to deal with the headache for many things. It's not a given over what time horizon and how much work is involved to get the refund. It's totally sensible to sell the claim for 70 cents on the dollar for example.
The supreme court absolutely hears cases that are obvious. They do it for several reasons - to create clarity, to narrow scope, to set a very clear precedent, and other reasons.
This was a case that split both the liberal and conservative blocs. Obama’s former SG, Neal Katyal, went up there and argued for limiting presidential power over the economy. One of the justices quipped about the irony of Katyal’s major contribution to jurisprudence being revitalization of non-delegation doctrine, which has always been a conservative focus.
If it were close, I think he would have voted the other way. The folks on the court appear extremely inclined to take the other side on things just as a mental exercise, or to be able to write something on the record that they find interesting.
It was close to zero.
Thomas joined fully with Kavanaugh’s dissent. He wrote separately to articulate his view of the scope of non-delegation doctrine. He pointed out tariffs and taxes are different, in that tariffs implicate international relations, which is primarily within the province of the president. His analysis is extremely cogent. I was actually talking with my wife (we’re both Fed Soc people) that the administration should have pushed that angle much harder in the argument.
Did you read the Federal Circuit en banc decision? You don’t get two Obama appointees to vote in favor of the Trump’s administrations unprecedented tariffs when the legal issue “isn’t close.”
And, surely you understand that many see using the due process clause to make his argument was a stretch. Just saying "his analysis is extremely cogent" doesn't make it so.
I don’t know enough about the ethics laws to know if it was strictly illegal, but it does create a smell.
Suppose a county engineer has influence on whether oil drilling will be allowed (they don’t make policy but consult those who do), and prior to approval their relatives buy up a lot of land in the area. That engineer may not have been the deciding factor, but it seems like it runs afoul of ethics laws/standards.
Also, the SCOTUS is not a criminal court, it is a constitutional court. If a case is heard there, both sides have not agreed on "obvious illegality". That is unsuprising since in general one side (in this case, the administrative branch of the US Government) is being accused of illegal behavior - when it comes to constitutional rather than criminal questions, most parties do not just accept their guilt, but push as far as they can towards exoneration.
Frequently, however to everybody else, the case concerns obvious illegality.
In insurance, you pay [-$10] to avoid a potencial negative risk [-$100].
Here you get money [+$10] instead of waiting for a potencial positive benefit [+$100].
Very slightly related https://en.wikipedia.org/wiki/Reverse_mortgage
There is an argument in about two months' time as to whether or not the Birthright Citizenship clause of the 14th Amendment actually guarantees birthright citizenship in the US. There is no serious legal argument in favor of the interpretation being advanced by the Trump administration, that it does not. And yet here we are.