SCOTUS Strikes Down Trump’s Tariffs, Failing to Solve Any Problems and Creating New Ones

The Supreme Court has struck down Donald Trump’s tariffs as applied under the International Emergency Economic Powers Act (IEEPA). As I predicted, the Court picked from a list of no good options on how to rule. Or more precisely, the Court split into three blocs of three, with each offering their unsatisfactory solution to one of the biggest political-economy and constitutional crises in decades.

One right-wing bloc—consisting of Chief Justice John Roberts and Justices Neil Gorsuch and Amy Coney Barrett—was in the majority. These justices rode business and consumer frustration with Trump’s sweeping tariffs to further entrench the deregulatory “major questions” doctrine, which they have used to strike down student debt relief, climate change policy, vaccine mandates, and more. What was novel here is that they were willing to apply this doctrine in the foreign affairs and MAGA contexts, which had previously gotten a pass.

A second right-wing bloc—consisting of Justices Brett Kavanaugh, Clarence Thomas, and Samuel Alito—dissented. They wanted to preserve the historic bifurcation between foreign and domestic affairs, and retain the major questions doctrine’s deregulatory impulse as a weapon only against progressive priorities at home, including climate and public health. In the world of trade and foreign affairs, in contrast, presidents should be given a fairly unconstrained hand.

While problematic in its implications, the dissenting bloc had the virtue of at least being historical. They noted, as we did extensively in an October issue brief, that the Congress that enacted IEEPA in 1977 was well aware of how presidents from Franklin D. Roosevelt to Lyndon Johnson to Richard Nixon to Gerald Ford had used predecessor authorities to impose tariffs and other restrictions in their attempts to rebalance global trade. That session of Congress not only refused to rein in those authorities, it replicated them anew—maintaining wide-ranging presidential authority to declare emergencies and address them (mostly) as they see fit.

The final bloc consisted of the three liberal justices. Their concurring opinions were in some ways the most frustrating. A major thrust of liberal criticism of the major questions doctrine is that broad delegations of power from Congress should be read broadly, while advocates of the doctrine have favored narrow interpretations. As Gorsuch noted of the liberals’ approach here, “now, when it comes to IEEPA’s similarly broad language granting powers to the President, they take a more constrained approach.” Again, the legislative history indicates that Congress in the 1970s knew that tariffs were a means of regulating importation, and had been used for that purpose from the 1930s to (then) very recent memory. By seeming to require the “magic word,” tariff, Justice Elena Kagan and company got uncomfortably close to endorsing the major questions doctrine they have fought so hard against in the past.

What comes next? Here’s the real kicker. As of this afternoon, Trump has announced his plans to reimpose the tariffs under the many other statutes that accord him trade powers. The Court also left unresolved whether and how businesses and consumers who were charged tariffs will be able to get refunds. So, the Court engineered a constitutional showdown without there being any practical upside for American families facing economic burden—which still only Congress can relieve. Instead, some in Congress are pledging today to codify Trump’s tariffs in statute.

In short, the practical implication may not be felt for years—as this precedent will be weaponized against future administrations that try to use government to improve people’s lives. Rebalancing the off-balance and power-hungry Supreme Court will be a major task for tomorrow’s leaders.

For a more granular walk-through of the 170 pages of decisions, see my X (Twitter) and Bluesky threads.