Posted on 09/17/2025 5:07:55 AM PDT by Miami Rebel
As SCOTUSblog readers are likely aware, tariffs are taxes charged on goods bought from other countries. In February, President Donald Trump imposed dozens of new tariffs. Now the Supreme Court will decide whether he had the legal authority to do so.
The stakes in the litigation are enormous. Tariffs are a crucial part of Trump’s agenda, with huge consequences in the United States and throughout the world. Indeed, after the U.S. Court of Appeals for the Federal Circuit struck down most of the tariffs, Trump said that their invalidation “would be a total disaster for the Country” and “would literally destroy the United States of America.” In the Trump administration’s petition to the Supreme Court, the solicitor general said “the tariffs are promoting peace and unprecedented economic prosperity” and “pulling America back from the precipice of disaster” and “restoring its respect and standing in the world.”
But the issue that the Supreme Court will decide is not whether the tariffs are desirable. Rather, the legal question is whether the International Emergency Economic Powers Act authorizes the president to impose tariffs via executive order.
The issue is thus one of statutory interpretation. Conservative justices long have embraced textualism and stressed that laws should be interpreted based on their plain meaning. As the Supreme Court declared in the 2004 case of Lamie v. United States Trustee, “It is well established that ‘when the statute’s language is plain, the sole function of the court—at least where the disposition required by the text is not absurd—it is to enforce it according to its terms.’” And just last term, in Stanley v. City of Sanford, Florida, Justice Neil Gorsuch wrote an opinion for the majority stressing textualism in interpreting statutes, sharply disagreeing with Justice Ketanji Brown Jackson’s approach of focusing on a law’s purpose to determine its meaning.
This is directly relevant to the tariffs case. Trump relies on the IEEPA, a statute adopted in 1977, to provide the legal authority for the tariffs he imposed. The IEEPA, though, does not mention tariffs. It authorizes the president to “regulate . . . importation” to “deal with any unusual and extraordinary threat.” As the Federal Circuit noted, other statutes that grant the president tariff authority expressly refer to “tariffs” or use synonymous terms. The court of appeals explained that “when drafting IEEPA, Congress did not use the term ‘tariff’ or any of its synonyms.” The court concluded that “[t]he absence of any such tariff language in IEEPA contrasts with statutes where Congress has affirmatively granted such power,” and where “Congress intends to delegate to the President the authority to impose tariffs, it does so explicitly, either by using unequivocal terms like tariff and duty, or via an overall structure which makes clear that Congress is referring to tariffs.”
Even beyond textualism, another doctrine created by the conservative justices, the “major questions” doctrine, undermines any claim of presidential power to impose tariffs under the IEEPA. In recent years, the six conservative justices repeatedly used the major questions doctrine – which requires clear guidance from Congress before a federal agency can act on a major question of economic or political significance – to strike down actions by the Biden administration.
In the 2022 case of National Federation of Independent Business v. Department of Labor, Occupational Safety and Health Administration, the Supreme Court, by a vote of 6-3, invalidated the Biden administration’s mandate that employers require vaccination or COVID-19 testing in workplaces of more than 100 employees. Although the court did not explicitly mention the major questions doctrine, that was the rationale: Congress had not given sufficiently specific authority for imposing the vaccine mandate.
In the 2022 case of West Virginia v. Environmental Protection Agency, the court held, again by a vote of 6-3, that the EPA lacked the authority to regulate certain greenhouse gas emissions from coal-fired power plants. Chief Justice John Roberts, writing for the majority, said that this was a major question of economic and political significance and Congress had not provided sufficiently specific authority for such regulation.
In the 2023 case of Biden v. Nebraska, the court, in another 6-3 decision, struck down the Biden administration’s student loan relief program. Even though a federal statute allowed the Secretary of Education to “waive or modify” student loan debt, the court, once more in an opinion by Roberts, said that this was a major question and there was not sufficient congressional authorization.
The Federal Circuit applied these precedents to hold that Trump lacked authority to impose the tariffs. It stated that imposing “tariffs of unlimited duration on imports of nearly all goods from nearly every country with which the United States conducts trade” is “both ‘unheralded’ and ‘transformative.’” Because “[t]he Executive’s use of tariffs qualifies as a decision of vast economic and political significance, so the Government must ‘point to clear congressional authorization’” for its actions. The Federal Circuit concluded that there was no such authorization in the IEEPA.
Nor can the conservative justices draw a distinction between the powers of the president and the authority of agencies, saying that the major questions doctrine applies only to the latter. In a series of recent rulings on the emergency docket involving removal of government officials – such as Trump v. Wilcox and Trump v. Harris – the six conservative justices have made clear that they accept the unitary executive theory, or the idea that the president has control over the entire executive branch. In Trump v. United States, the court stated (quoting a previous case): The president is “the only person who alone composes a branch of government.” In light of this, there cannot be a meaningful distinction between the powers of the president and the powers of the agencies.
Perhaps the conservative justices can try and say that these principles don’t apply to matters concerning foreign policy. In his filing in the Supreme Court, Solicitor General D. John Sauer says that the major questions doctrine has not been applied “in the national security or foreign policy contexts, because the canon does not reflect ordinary congressional intent in those areas.”
But, to be consistent, the conservative justices should balk at that argument. The text of the Constitution itself and its original meaning are clear: Congress has the power with regard to tariffs. Article I, Section 8 of the Constitution states that “[t]he Congress shall have power to lay and collect taxes, duties, imposts and excises,” as well as to “regulate commerce with foreign nations.” As Gorsuch argued in his recent opinion in Federal Communications Commission v. Consumers’ Research, the power to tax – and tariffs are a tax – rests solely with Congress.
Of course, the conservative justices can abandon their textualism, their major questions doctrine, and their originalism and uphold Trump’s tariffs. In doing so, they would be making clear that they follow these doctrines only when reviewing the actions of a Democratic president, as they did during the Biden administration. But then they would be showing that their jurisprudence is not principled, and is instead just rhetoric to support conservative results when it supports the conclusions they want to reach.
Besides its economic significance, that is what makes the tariffs case so fascinating in the Supreme Court. Will the conservative justices adhere to what they have said and held recently, or will they just rubber stamp whatever Trump does?
When your evil religion gets shot down please don’t get violent.
The Trade Act of 1974 gives POTUS tariff authority. Not that it will get that far.
At root, the President did what the Congress could not. The President imposed a massive tax increase to end the deficit and collect funds to decrease the debt.
The Congress has tacitly agreed to the President’s help that created the legislatively impossible tax increase.
Perhaps the SCOTUS will decide while feeling the favorability of a tax increase breeze blowing around the Capitol
Since you’re an expert on the matter, perhaps you can tell me what the hell tariffs would do to “fix” this.
Select Tariff Authorities
Section 122 of the Trade Act of 1974 – Permits the president to impose import measures, including an import surcharge, to address a balance of payment deficits between the US and other countries.
Section 201 of the Trade Act of 1974 – Permits the president to impose temporary duties to address a substantial cause or threat of serious injury to a US industry.
Section 232 of the Trade Expansion Act of 1962 – Empowers the president to act if certain imports threaten to impair US national security.
Section 301 of the Trade Act of 1974 – Allows the president to restrict imports if a foreign country violates any trade agreement or burdens or restricts US companies.
Section 337 of the Tariff Act of 1930 – Seeks to address unfair trade practices, particularly intellectual property infringement, in the importation or sale of goods in the US. Protects domestic industries by issuing exclusion or cease-and-desist orders against violative imports.
Section 338 of the Tariff Act of 1930 – Authorizes the president to impose new or additional duties against imports from countries that discriminate against US commerce.
What is interesting is that absolutely no pro-tariff person has written a thorough, thoughtful article explaining and supporting the 2025 tariff actions.
In contrast, Tom Homan and others have written clean and thoughtful discussions on immigration. I tend to be more pro-immigration. But Homan’s words are respected. Much has been written about DOGE and cutting waste, fraud and abuse. Much has been written on other topics that is thoughtful. One can agree or disagree but either way respect the discussion.
But on tariffs the discussion is like cheerleaders at a pep rally.
Unless Plan B invokes the Nuclear Option to push Tariff's through Congress then I've absolutely zero idea what Plan B might look like.
The tariffs have been the basis of multiple successful trade negotiations - where have you been, exactly? All of that would be thrown up in the air.
Not to mention all of the revenue that would be lost, which is not exactly chump change.
How can you call that inconsequential? Regardless of whether you agree with the policy or the strategy, saying it is of no consequence is absurd.
Listing a bunch of things you’ve never read isn’t an argument.
What you’re suggesting is that laws can be made by a wink-and-a-nod-arrangement between the legislative, executive, and judicial branches.
I hope for the sake of our Constitutional republic that that s not so.
Free Traitors are absurd.
Nice comeback Potsie.
I wonder if Plan B is the Trade Act of 1974?
There are towns all over NC with dead town that once made furniture, textiles and pharmaceuticals. Mining towns are dead too
Too much of our political discourse, even just between those of us on the right, is limited to exactly that. Whatever "side" you're on is all that matters, no matter how crappy the argument on the particular issue.
Explain how Free Traitors are “on the right”? You guys are leftists.
100 years ago the GOP made it clear they were THE Protectionist party. So was the GOP of 1924 a left leaning party? Hell no.
Total trade embargo is Plan B.
That would seem to be perfectly constitutional.
Nobody can present a clear and concise rationale for this tariff policy because there is none. It has been a haphazardly adopted mess, and counter-productive in many ways. The problem here is that it is being orchestrated by people like Navarro and Lutnick — economists and financiers who don’t have a clue about what it takes to develop and manufacture a product of any kind.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.