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?
I’ve absolutely zero idea what Plan B might look like.
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either does anyone else, since the existence of it was just mentioned this morning.
I’d say just a plan B is not enough
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How can you judge plan that is not enumerated beyond its existence?
About as well as imagining that there is a plan B to begin with.
A person can assume a lot, when there’s nothing but assumptions to go on here.
All the noise about tariffs the fact about them countries stick it to the U.S. yet when we do it it’s somehow a bad deal.
Ignorant in motion.
There is a baseline tariff and tailored tariffs for each country. It is not haphazard at all.
No, more like traitorous globalism in motion.
About as well as imagining that there is a plan B to begin with. A person can assume a lot, when there’s nothing but assumptions to go on here.
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Well then, we must assume P. Navarro, 47’s senior counselor for trade and manufacturing, was lying ... to follow your argument.
I’m all on board with the POTUS agenda, but man! The price of coffee has nearly doubled!
Oh heavens, a politician lying!?
Of course even a lie can be purposefully placed to lead people around as well.
You seem awfully fixated on argument over mere speculations which are based on nothing tangible.
No, more like greed the democrats let them screw the U.S. for years proving kickbacks do pay off.
Demacoats and Rinos wink and count the cash.
It could be a bad deal. It could be a great deal.
But is it a Constitutional deal?
The Supreme Court is interested only in that question, not in the soundness of the policy.
Coffee and meat. Ground beef in TN $7.99 lb.
I just believe the Constitution and laws have to be followed, And I don't believe that the absolutely unfettered delegation authority that is being claimed under the IEEPA is constitutional.
I believe that separation of powers is the core structural safeguard in the Constitution, but too many conservatives only support that when it is convenient.
I fully support all of President Trump's efforts to rein in administrative agencies, including firing the heads of commissions, etc. I also agree with Supreme Court decisions that have ratcheted back the power of those administrative agencies, especially with the elimination of the Chevron doctrine. In short, I agree with Justice Scalia that these administrative agencies have become sort of junior varsity congresses that isn't authorized under the Constitution.
It is the job of Congress, not administrative agencies to pass laws. End of story.
But it isn't the job of the President to pass laws either, and that's what this claimed delegation does. The whole idea of Congress delegating significant authority to the president is an end run around the Constitution, and destroys separation of powers. I'd much, much rather have a Congress that was gridlocked and did absolutely nothing than a Congress that passed its authority to Presidents to do whatever they want.
You may love that idea now, when it is Republican in power. But you'd be singing a very different tune and if it was President AOC using the powers that you think the presidents should have.
Well, it's at least safe to assume that Plan B isn't as good as Plan A.
Perhaps there is more to it than meets the eye.
The President’s actions regarding the tariffs are popular. The tariff tax increase not possible in the Congress is seemingly accepted by the people.
SCOTUS declares the President’s action to be beyond the scope of the law he cited as permitting his action.
The Congress is then able to immediately legislate the tax increase in accordance with the popular President’s will.
We’ll see.
Over the decades, particularly after the Trade Act of 1930 (Smoot-Hawley), Congress delegated more authority to the President. This was done under the assumption that the President could make trade decisions more nimbly and would be less susceptible to special interest groups.
Laws passed by Congress, such as Section 232 of the Trade Expansion Act of 1962 and Section 301 of the Trade Act of 1974, allow presidents to impose tariffs under specific conditions, like national security threats or unfair trade practices
Congress has delegated tariff authority thru legislation. But you knew that.
I refer to this charade as "inconsequential" because no CEO with half a brain is going to make any major investment decisions for manufacturing products or sourcing raw materials based on a tariff policy that can change by the hour.
The shame of it is that Trump is using Tariffs as a potent Diplomacy tool and is getting great results. If the decision goes against him, Congress needs to keep this arrow in the diplomacy quiver.
Imposing tariffs to ensure balanced trade with every trading partner is retarded. The U.S. cannot possibly maintain balanced trade, for example, with very poor countries that supply us with raw materials and agricultural products that the U.S. doesn't even produce itself, yet can't afford to buy the expensive, advanced manufactured products that the U.S. exports.
"Let's sell a bunch of Ford F-150 pickup trucks and a Blackhawk helicopter to a village in Africa where they pick coffee and cocoa beans by hand for export to the U.S." -- said nobody, ever.
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