Supreme Court’s tariffs ruling reveals two political orders

The American people have grown used to reading about Supreme Court cases decided by a 6-3 vote. In almost all of those rulings, the court’s six conservatives are arrayed on one side, with its three liberals on the other. But Friday’s decision striking down many of Donald Trump’s tariffs scrambled the deck, showing that at least some of the court’s conservatives are not yet willing to set fire to the Constitution. 

That the president’s immediate reaction to the ruling was to call it a “disgrace” and denounce the justices who had the temerity not to fall in line behind him indicates that this country is caught between two political orders.

The first, represented by the court’s decision, is the remnant of a constitutional democracy in which rules still matter. On this side are the three liberal justices — Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson — along with conservatives Amy Coney Barrett, Neil Gorsuch and Chief Justice John Roberts, who authored the ruling. The second is an emerging authoritarian order in which the will of a single person is all that matters, an order the three dissenters in the case — Samuel Alito, Brett Kavanaugh and Clarence Thomas — seem ready to embrace.

Don’t be taken in by any triumph of the first political order. The court’s tariff ruling, while a welcome break from its pattern of pro-Trump decisions, is but one skirmish in an existential struggle.

The administration had argued before the court that the International Emergency Economic Powers Act (IEEPA) authorized the president to “regulate…importation” by imposing tariffs in response to an emergency. Trump argued that the influx of drugs from Canada, Mexico and China — the countries whose tariffs were challenged in the case — had created ‘”a public health crisis.’”  

The plaintiffs were Learning Resources and Hand2mind, small businesses that contended the law did not allow Trump’s “reciprocal or drug trafficking tariffs,” and Roberts agreed, citing the plain language of the Constitution. As he put it, the first clause of Article 1, Section 8 specifies that “The Congress shall have the power to lay and collect Taxes, Duties, Imposts and Excises.”

Despite the president’s repeated claims that Americans don’t pay for tariffs, the chief justice made it clear that tariffs are taxes — and that only Congress, exercising the “one great power upon which the whole national fabric is based,” had the authority to impose them. And under the court’s so-called “major questions doctrine,” Congress cannot relinquish power to the executive branch on matters of vast economic and political significance without an explicit delegation. 

None of this power was provided by the IEEPA.

In a notable dig at the president, Roberts observed that, before Trump, “No president has invoked the statute to impose any tariffs — let alone tariffs of this magnitude and scope.” He concluded by affirming his allegiance to the Constitution and to the judiciary’s authority to say what the law is.

In a concurring opinion, Gorsuch stated the stakes more plainly by posing a rhetorical question: If the president’s argument was given credence, then “what do we make of the Constitution’s text?” 

Thomas, Alito and Kavanaugh apparently didn’t make much of it. The trio has frequently used the major questions doctrine to advance Trump’s effort to consolidate his power, and in their dissents, they bent over backward to show allegiance to the president.

Kavanaugh took the unusual step of offering the president a roadmap for getting around the court’s decision, predicting that it “is not likely to greatly restrict Presidential tariff authority going forward.” And in a particularly revealing moment, Thomas said that because “the power to impose duties…originated as a ‘prerogative right of the [British] King,’” it also should be a prerogative right of America’s would-be king.

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Even more than he loves tariffs, Trump loves absolute power. In remarks to the press soon after the court’s ruling, he told reporters, “Other alternatives will now be used to replace the ones that the court incorrectly rejected. We have alternatives, great alternatives. Could be more money. We’ll take in more money. and we’ll be a lot stronger for it.”

The president denounced the court for taking months to render a “totally defective” decision. His contempt for the justices in the majority was on full display. The ruling, he said, was written by people who are not “smart.” He accused them of being swayed by foreign interests and said he “couldn’t care less” if they came to his State of the Union address, which he is scheduled to deliver to a joint session of Congress and the American people on Tuesday. In the voice of an authoritarian, he said, “We have a right to do what we want to do.”

Later, on Truth Social, he offered a typically Trumpian reading of the tariff decision. He insisted that although “they did not mean to do so, the Supreme Court’s decision today made a President’s ability to both regulate Trade, and impose TARIFFS, more powerful and crystal clear, rather than less… Based on longstanding Law and Hundreds of Victories to the contrary, the Supreme Court did not overrule TARIFFS, they merely overruled a particular use of IEEPA TARIFFS.” 

“In order to protect our Country,” he added, “a President can actually charge more TARIFFS than I was charging in the past under the various other TARIFF authorities, which have also been confirmed, and fully allowed.”

In outright defiance, Trump also announced a new round of tariffs: 10% on all imports starting Feb. 24, citing authority he claimed was granted by the 1974 Trade Act. 

Trump’s infatuation with tariffs is longstanding. The term itself “is a beautiful word,” he is fond of saying, and he often cites the example of President William McKinley, who levied tariffs to generate revenue before the nation had an income tax.

But the president’s belief in tariffs is not rooted in a vision of the public good. They instead offer Trump a tool to leverage America’s global economic dominance. “By manipulating tariffs, and by granting or withholding waivers, he could easily coerce capitulation from companies affected by them,” journalist Steve Chapman explained shortly after the 2024 election. “It’s another weapon for an aspiring authoritarian. No one is likely to understand the potency of this weapon better than Trump. In his hands, the president’s role in trade could be ruthlessly exploited for purposes having nothing to do with trade. He loves tariffs…for the power they promise.” 

That’s why the president reacted so vehemently to the court’s ruling. If the justices had sided with Trump, they would have abandoned the cause of constitutionalism entirely and embraced his authoritarian project. 

At least for the moment, we have dodged that bullet.

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