The Supreme Court Isn’t a Rubber Stamp

Of all the kingly and capricious powers that Donald Trump enjoys exercising as president, the ability to threaten arbitrarily large tariffs is his favorite. Who could ever forget “Liberation Day” in April 2025, when America declared economic warfare on the rest of the world? Or, at least it was his favorite power—before the Supreme Court ruled today that many of the tariffs he had imposed in the past year were illegal. The ruling is a political embarrassment to the administration, which might now have to issue refunds on up to $142 billion of tariff revenue. But the Court’s decision is less significant economically—with time and effort, Trump can largely reconstitute the tariff regime that was just overthrown—than it is democratically. The Court, despite its conservative majority, has enforced the limits on arbitrary presidential authority that congressional Republicans were too timid to enforce themselves.

The case, Learning Resources, Inc. v. Trump, concerned the president’s extraordinary use of the 1977 International Emergency Economic Powers Act, which grants the president the power to regulate imports during declared national emergencies. IEEPA has been routinely used to impose sanctions but never to impose tariffs. Trump seized on that ambiguous language to impose tariffs by executive order, with no involvement of Congress (which is given the exclusive power to collect taxes and tariffs in Article I of the Constitution). After declaring national emergencies over fentanyl smuggling and illegal immigration, Trump imposed tariffs on goods entering from China, Canada, and Mexico, among other countries. The threat of such arbitrary tariffs have been a primary tool of economic and diplomatic coercion, used to extract trade agreements in which countries, including allies such as Britain and Japan, accept higher tariffs on their goods. A GOP-controlled Congress meekly watched as the executive branch seized one of its core enumerated authorities. Among Republicans, the erstwhile party of Ronald Reagan and free trade, only a few registered public dissent.

[David Frum: The Supreme Court delivers Trump a humiliating gift]

The Court ruled that Congress had not really inadvertently turned over its tariff authority to the president when it passed IEEPA. The opinion itself is fractured and awkward. Three conservative justices—John Roberts, Amy Coney Barrett, and Neil Gorsuch—joined with the three liberal justices to strike down Trump’s IEEPA tariffs on narrow textual grounds. “Based on two words separated by 16 others in Section 1702(a)(1)(B) of IEEPA—‘regulate’ and ‘importation’—the President asserts the independent power to impose tariffs on imports from any country, of any product, at any rate, for any amount of time. Those words cannot bear such weight,” the controlling opinion, written by Roberts, declares.

The Court heard oral arguments in November but was slow to issue its ruling. Now we can see why. Seven of the nine justices wrote opinions, spanning 170 pages, largely consumed with sniping at the arguments of their colleagues. Most of this concerns whether or not the tariffs should also be invalidated because of the “major questions” doctrine. This is a relatively new legal standard developed by conservative jurists that invalidates presidential actions that assert sweeping new authority on important policy matters based only on vague delegations from Congress. This has been used to great effect to stymie Democratic priorities such as Barack Obama’s Clean Power Plan, Joe Biden’s student-loan cancellations, and COVID-19 vaccine mandates. The liberal justices, who have previously criticized major questions as a doctrine that will “magically appear” when needed by conservatives, refused to sign on to its application in this case. The dissenting conservatives—Justices Brett Kavanaugh, Clarence Thomas, and Samuel Alito—who were sympathetic to major questions in its prior applications are more credulous this time. Gorsuch pillories both groups in his own opinion, saying that the conservative dissent “engages in a little grade inflation” while the liberals “all but endorse” the theory they had previously denounced.

Judicial fatalism—the idea that the Supreme Court is a rubber stamp for Trump—is a fashionable belief on the left. Although it was always doubtful, it ought now to be dispelled. The skepticism toward executive-branch overreach that stymied Democratic administrations is still being applied to a Republican administration. If the conservative justices had succumbed to the partisan instincts ascribed to them, they would have authorized a complete breakdown in the separation of powers. And not just for the present administration: A future Democratic president would have had the power to invoke a climate-change emergency and implement a large carbon tax on all imports—all without congressional involvement.

Trump has previously catastrophized the consequences of an adverse ruling. If the Supreme Court ruled against him, he predicted last month on Truth Social, “WE’RE SCREWED!” In a hastily called news conference today, he attacked the justices who ruled against him as “very unpatriotic and disloyal to our Constitution.” The litigation over tariff refunds will indeed be a headache for Trump, but he will have plenty of other legal options to reimpose tariffs. Jamieson Greer, Trump’s top trade official, had indicated that contingency plans would “start the next day.”

The president can, after completing investigations, impose tariffs on goods that threaten national security or in response to unfair trade practices. Some of these are already in effect, which is why Americans will still face a 9.1 per cent effective tariff on imported goods even after the IEEPA-based tariffs are voided. These options are more cumbersome than the original route the president chose, but less legally vulnerable.

More exotic, untested authorities are also available to Trump. Section 122 of the Trade Act of 1974 allows the president to impose tariffs of up to 15 percent for a period of 150 days to deal with trade deficits. (Trump said today that he would be invoking this to impose a 10 percent duty.) A more byzantine authority, Section 338 of the Tariff Act of 1930, lets the president impose duties of up to 50 percent on countries that discriminate against American goods. The next year will be a blitz of actions under obscure laws. “We’ve gone from a relatively simple universe to a much more complicated one,” the Georgetown University law professor Kathleen Claussen told me.

[Rogé Karma: Get ready for zombie tariffs]

For all these reasons, American consumers and importers should not expect permanent tariff relief. And the trade deals struck in the past year are unlikely to be unwound for the same reason. Congress has simply given a president committed to putting tariffs on the rest of the world too many options to do so. Trump could have chosen these other routes, but they require more time and deliberation than the IEEPA approach did—and lack the transgressive thrill of punishing entire countries on a whim. Throughout Trump’s reign, Republicans have done a poor job of defending actual American republicanism, but at least one branch of government is capable of doing so.