The Supreme Court Can Choose the Constitution or Trump on Tariffs

It's time for the Court to uphold the Constitution

On Wednesday, the Supreme Court heard nearly two and a half hours of oral arguments in Learning Resources, Inc. v. Trump.¹ The question in this case is whether the International Emergency Economic Powers Act (IEEPA) authorizes a president to impose tariffs not specifically authorized by the law. More succinctly, Learning Resources, Inc. v. Trump is a case about the separation of powers. It’s a direct collision between Congress’s exclusive power over revenue, including customs duties, in Article I and the modern presidency’s appetite for economic command-and-control during perceived or purported emergencies.²

The Court now finds itself positioned to decide whether a president—any president—can unilaterally reshape America’s trade environment so long as the words “national security” are uttered in the right statutory doorway. The case arrived at the Court by way of the U.S. District Court for the District of Columbia.³ In May, Judge Rudolph Contreras held that the tariffs imposed under IEEPA were unlawful.⁴ The administration sought certiorari before judgment, allowing the Court to hear the dispute without intermediate appellate review by the U.S. Court of Appeals for the District of Columbia Circuit.

IEEPA was passed in 1977 to rein in, not expand, a president’s ability to act during foreign emergencies. The law allows the president to “regulate” imports and exports in response to “unusual and extraordinary threats” originating abroad. Before Trump’s actions in February and April, IEEPA had never been used to impose tariffs. The fracture point is that regulation is not taxation. Tariffs are historically grounded in Article I—Congress’s exclusive domain. Every founding-era revenue fight circles back to this distinction. If the Court allows “regulate importation” to mean “levy tariff-like charges on domestic purchasers,” then we’ve quietly amended the Constitution through statutory inference. A tariff imposed through emergency proclamation transforms Article II into a provisional tax power, something the Framers deliberately withheld.

The Solicitor General insists nothing transformative is happening here. The administration claims tariffs are merely another way to “regulate” importation, and taxing effects are incidental. It’s the judicial equivalent of calling a chainsaw a rugged comb. The government’s framing plainly unsettled several justices. Justice Sonia Sotomayor cut straight to the revenue heart of the matter, which is that if tariffs generate money from American consumers, why wouldn’t the Court consider them a tax? Justice Elena Kagan drilled into the allocation of constitutional power: tariffs are Congress’s baby. The Executive Branch—the powers of which are defined in Article II—doesn’t have tariff authority.

Justice Katanji Brown Jackson, meanwhile, was textualist in the most adult sense: if Congress meant tariff, why didn’t Congress say tariff? The government’s answer boiled down to “well, because Congress didn’t have to.” That’s not a comforting theory for anyone who worries about the growth of the Executive Branch.

On the other side of the spectrum, some conservative justices probed whether foreign affairs emergencies inherently broaden presidential power. That thinking isn’t new. The 1936 case, United States v. Curtiss-Wright Export Corporation, has been a fixture of foreign affairs jurisprudence since the New Deal and remains a favored citation for maximalist executive theorists. However, in the modern era, the Court has insisted that Congress cannot hand the Executive undefined “major questions” without explicit language. It’s a serious question with broad implications. Can presidents impose broad tariff regimes without Congress lifting a legislative finger?

This Case Is Bigger Than Tariffs

Remove tariffs from the equation and replace them with supply-chain mandates, export restrictions, technology licensing, foreign investment reviews, or raw material purchase requirements. Suddenly, you’re holding a blueprint for emergency-based industrial policy by decree. That’s where the alarms start ringing for anyone who cares about checks and balances. Congress’s legislative machinery exists precisely to force broad policy questions into public view. Emergency delegation shortcuts that debate. Lawmakers get to have it both ways. They can complain about executive actions they enabled and avoid voting on tradeoffs that their voters may dislike. In other words, emergencies become policy vending machines.

The “major questions” doctrine is a guardrail the Court has used to prevent agencies from discovering sweeping new powers in old statutes. It’s controversial, but the principle is simple. The principle is that Congress must speak clearly when delegating decisions of vast economic and political magnitude.

The Solicitor General argued that the major questions doctrine does not apply when the actor is the president rather than an agency, and that foreign affairs emergencies alter the doctrinal landscape. The Court seemed unconvinced. Several justices pointed out that “emergency” was the label the Biden Administration used in its student-loan forgiveness program—and the Court refused to bless it in that context.

Emergencies do not create constitutional magic or erase the lines between the separation of powers. Of course, one serious problem when it comes to the tariff power is that Congress has, to a large degree, abdicated its responsibility. If you’re waiting for Congress to reassert itself, cancel your calendar. The legislative branch has spent decades outsourcing uncomfortable choices to the Executive, especially in trade policy. Section 232 of the Trade Expansion Act and Section 301 of the Trade Act are habitual enablers.

IEEPA’s broad text was grafted onto that culture of delegation. Congress wanted flexibility, not blank checks. However, when you write “regulate importation” in sweeping terms and trust future presidents to behave modestly, you are voluntarily ceding terrain that constitutional design had fenced off for you.⁵

This case reflects a broader transformation. America’s economic governance has evolved from congressional statute to executive proclamation. If the Court allows this use of IEEPA to stand, presidents will be able to wield tariffs like pressure valves in industrial disputes, supply-chain anxieties, or diplomatic confrontations. Congress will do little more than play the role of commentator, not engineer. I’m not going to sit here and say that the economy has weakened solely because of the tariffs the administration has imposed. However, Trump is ignoring everything we know in modern economics about trade policy while wildly misusing IEEPA to impose destructive trade policy. In this particular case, there’s an amicus brief signed by several economists, some of whom are from opposite ends of the political spectrum. You have free market economists like Don Boudreaux, a senior fellow at the Mercatus Center and an adjunct scholar at the Cato Institute, and Jason Furman, who served as chair of the Council of Economic Advisers under President Obama. The three most recent directors of the Congressional Budget Office—Douglas Holtz-Eakin, Doug Elmendorf, and Keith Hall—and the two immediate past chairs of the Federal Reserve—Ben Bernanke and Janet Yellen—signed the brief.⁶

The government’s claim that the revenue aspect is incidental is doctrinally clever but economically naive. Tariffs are taxes. Period. Full stop. They raise money from domestic purchasers to alter consumption behavior. Tariffs are regressive. They can distort supply chains. They are disguised as tax policies, but are, in this particular administration, actually trade nationalism. There’s a reason the Constitution draws a bright line around revenue bills. Taxes transfer wealth across the economy. They allocate pain. They pick winners. When a president does that through tariffs, he is effectively imposing consumption taxes without congressional assent.

At oral argument, several justices asked pointedly: What are the limiting principles? The government offered only broad prudential factors—a polite way of saying, “You can trust us.” Congress tried that argument with war powers, too. It ended with decades-long authorizations that Congress repeatedly failed to update.⁷

If presidents can wield tariff power without Congress, then the president controls a shadow tax code. That should make everyone—including the so-called “constitutional conservatives” of a decade ago—deeply uncomfortable. What’s more, emergencies are powerful because they compress nuance.⁸ A sprawling emergency justification becomes a constitutional passport.⁹ Once issued, no one checks whether any particular passenger belongs in first class.

If you picture trade as a purely foreign affairs instrument, you’re missing the domestic battlefield underneath it. Tariffs reallocate income within the United States. They shift economic geography. They reward certain industries and punish others. They create winners among some worker demographics and losers among others.

Something else is at stake: the judiciary’s willingness to bless emergency-driven economic nationalism. If the Court affirms this power, future administrations will be tempted to impose retaliatory tariff schedules on strategic competitors, favor politically sympathetic domestic firms, squeeze supply chains for geopolitical leverage, and weaponize imports against disfavored states or sectors. None of those outcomes is impossible under a Court-approved emergency tariff regime.

Nearly every justice pondered how Congress checks this power. The Solicitor General’s answer was an amendment to IEEPA. In the real world, Congress now struggles to pass meaningful legislation. I’m literally writing this on the 37th day of a government shutdown caused by Congress’s inability to perform one of its most basic functions. Expecting Congress to meaningfully claw back executive tariff authority is like expecting a deflated balloon to reinflate itself from the inside.

The Court must assume enforcement will fall on its shoulders. It is confronting a century-long pattern of power drift to the Executive Branch. This particular Court has, of course, had no problem pulling back power from the Executive Branch. Just last year, the Court shifted its position on the Chevron deference in Loper Bright Enterprises v. Raimondo.¹⁰

If You Care About Separation of Powers, You Absolutely Should Care About This Case

I’ve written it before, but let me do so again. Every president—regardless of party—views the power left by his or her predecessor as a floor, not a ceiling. I keep writing this (or saying it, depending on the forum) in the hopes that my friends who work on Capitol Hill will begin to take it seriously. The power that is being absorbed by this administration is setting dangerous precedents, particularly in trade policy.

The Court has traditionally deferred to presidents in the area of foreign affairs, but that executive deference (or Curtiss-Wright deference, whatever you want to call it) has unavoidable tension with the powers given to Congress over revenue. If the Court allows this use of IEEPA to stand, a president can declare an emergency that foreign supply chains are a threat and use tariff power to encourage domestic semiconductor manufacturing, discourage pharmaceutical imports, subsidize rare earth mining indirectly, or price-punish “unreliable” trade partners. Those might be worthwhile objectives, but those issues should be debated in Congress.

Justices seemed skeptical of the administration’s arguments. Although that’s a positive sign, I also know that living in a world where we trust the Court to uphold the Constitution is a dangerous place to be. I’m reminded of Ian Malcolm in Jurassic Park, who famously said, “Life, uh, finds a way.” After all, the Court effectively rewrote the Takings Clause of the Fifth Amendment, despite its clear wording in Kelo v. New London (2005). It also rewrote the Affordable Care Act to make the individual mandate a tax in National Federation of Independent Business v. Sebelius (2012) to justify upholding the law. So, while I’m cautiously optimistic, I refuse to get my hopes up.¹¹

What might the Court do? A narrow decision could say that IEEPA authorizes regulatory trade restrictions during emergencies, but tariffs with revenue-generating effects require explicit congressional authorization. This would preserve emergency flexibility while reaffirming Congress’s Article I power over revenue.

A broad decision could conclude that tariff-like import restrictions are inherently regulatory in the foreign affairs domain and that IEEPA grants the president discretion to calibrate them. That would effectively create a presidential industrial policy tool chest. This decision would be a worst-case scenario, as it would further blur the lines between the Legislative and Executive branches.

A more substantial ruling could invoke the major questions doctrine and require Congress to speak with unmistakable clarity before the Executive Branch may alter the tariff environment on a large scale. That would force Congress to legislate again.

At the end of the day, this is a separation of powers dispute dressed in trade drag. Congress writes the nation’s tax code. Whoever is president executes it. Courts referee the boundary. If the Court redraws the line to allow executive tariff power in emergencies without clear limits, Congress becomes a spectator in the arena of industrial economics. That’s not what the Framers built.

Still, this oral argument reiterated three truths about modern American governance. This is remedial for those who follow Congress, but it’s worth repeating. The first is that Congress is not legislating its own priorities. Members prefer to offload politically risky decisions to the Executive Branch. The second is that presidents are eager to fill the vacuum. Emergency powers are malleable tools for expansive agendas. Lastly, for better or for worse, the Supreme Court is now the only person in the room tasked with deciding whether “regulate importation” means “rewrite the tariff code.”

The Court’s eventual opinion won’t just decide whether a particular tariff schedule survives judicial scrutiny. It will determine whether future administrations can utilize emergency statutes to implement policy on a large scale, without congressional approval. Congressional oversight is another question. However, under the current majorities in the House and the Senate, serious oversight is unlikely. We’d be lucky to get a floor speech against the administration’s mercantilist views on trade.

If you value checks and balances, you should hope the Court remembers that emergencies end, but the precedents they produce tend to live forever.

1. Trump v. V.O.S. Selections was merged with Learning Resources, Inc. v. Trump.

2. In this instance, we have an “emergency” that’s not really an emergency that the administration insists is an emergency, so it can impose tariffs unilaterally through an emergency statute. The only emergency I can see is that we have economically illiterate people running the country.

3. Trump v. V.O.S. Selections was initially heard in the U.S. Court of International Trade. That court sided with the small businesses that brought the case against the administration. The U.S. Court of Appeals for the Federal Circuit heard the appeal and also sided with the businesses.

4. In February, IEEPA was used to impose tariffs on Canada, Mexico, and China. IEEPA was subsequently used to impose the so-called “Liberation Day” tariffs in April. Countries affected by the April tariffs include China (yes, again), the European Union, Israel, Japan, Norway, Switzerland, South Korea, and Taiwan.

5. No Congress should ever simply trust an administration. Trusting this administration is a particularly perilous notion because officials are frequently testing constitutional and statutory limits of their power. In other words, this administration is a case study to show Congress where laws need to be tightened and/or clarified to prevent the decay of the rule of law.

6. Holtz-Eakin and Hall were selected by Republican Speakers of the House and Senate President Pro Tems to run the CBO. Elmendorf was selected by a Democratic Speaker and President Pro Tem. Bernanke was President Bush’s pick to chair the Fed. Yellen served under President Obama.

7. The 2001 authorization for the use of military force (AUMF) passed in response to the September 11, 2001 terrorist attacks carried out by al-Qaeda has been used as the legal authorization for military action in at least 22 countries. The core countries are Afghanistan, Pakistan, Iraq, Syria, Somalia, Yemen, and Libya. However, there are at least 15 other countries in which the military conducted operations under the 2001. These countries include Kenya, Mali, Cameroon, Turkey, the Philippines, and Georgia (the country).

8. This is true whether we’re talking about IEEPA, the National Emergencies Act, or some other emergency statute.

9. The emergency declaration underlying these tariffs is tied—rhetorically, at least—to fentanyl trafficking and national-security concerns about foreign supply chains. Those are real policy challenges. But the statutory question is not whether fentanyl is dangerous. Virtually no one would argue that it’s not. The question is whether invoking fentanyl allows presidents to slap tariff regimes on unrelated goods simply because they originate in countries with dual-use pharmaceutical exports.

10. This reversal was long overdue. I should note that the Chevron deference applied only to agencies, not the president.

11. My Significantly Better Half™️ would say that this is a defense mechanism I have to avoid being let down later, but I think she’d agree with me here.