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?
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"
The SCOTUS decision should hinge, not on whether Congress delegated these tariff authorities to the POTUS, but on whether they CAN delegate those authorities.
We'd be in a big mess immediately, and for the foreseeable future, if SCOTUS effectively repealed Trump's tariff policies and said that Congress must take direct responsibility for each and every trade and tariff negotiation going forward.
Coffee, I can understand; we can’t grow our own. But beef? Makes no sense. It should be getting cheaper, since why import when we grow so much of our own?
Actually, the statute being used in this particular case is IEEPA, which never mentions tariffs, duties, or taxes of any kind, even once. That's the basis of the decision by the Federal Circuit. They said IEEPA authorizes emergency powers to stop importation of certain goods, which makes sense as an "emergency" power. But tariffs/duties aren't mentioned.
So here's an example of how IEEPA is supposed to work. Suppose we figured out that a particular computer chip manufactured in China had some kind of built-in virus that was going to be released on a certain date. Or that there was some highly dangerous parasite discovered on some food item we were importing. The President would have the authority to freeze importation of those items under IEEPA.
But if you were to read IEEPA as authorizing the imposition of unlimited tariffs or duties (despite neither being mentioned in that law) by the President at his sole, unreviewable discretion, that amounts to a complete delegation of the entire tariff/duty power granted expressly to Congress by the Constitution.
And that's what I think would be unconstitutional, just as it would be unconstitutional for Congress to delegate to the President the power to set tax rates at his own, unreviewable discretion.
But I don't think SCOTUS will get to the Constitutional issue. They'll say that IEEPA doesn't authorize tariffs, period. If other statutes do -- and the Administration has imposed some tariffs under other statutes that specifically authorize them -- different analysis.
Different countries treat us differently. You get that.
Yes, both R and D are coalitions of many different interests. Individual politicians are more distinct in their positions.
Capitalism = free trade and no thumb of government on the scales. Free enterprise is used to little or no tariffs.
Some politicians say “Free and Fair trade”. Historically other nations have had more tariffs than the US. One of the current arguments of tariff supporters is that the US should used tariffs as a bargaining chip to get others to reduce their tariffs. That has worked with Mexico. It has not worked with Canada...yet. There has been no coherent document on this bargaining chip approach.
Totally different from bargaining chip is the intentional use of tariffs to prevent free trade and subsidize manufacturing in the US. There has been no coherent document that explains this approach....just pep rally stuff.
Totally different from the above 2 approaches is using tariffs and a source of income to replace some of personal and corporate income taxes. There has been no coherent document on this approach.
Many documents illogically jump from one to the the other of the 3 approaches which defeats the reasoning for all 3.
Tariffs promote domestic industry, that is fact. Needs no proof at all. Conversely lowering tariffs unilaterally destroys the industrial base. We are all witnesses to those facts.
Your post scares me. Patriots and Conservatives have always been pro tariff and protectionist. You should know that. You are left wing globalist.
Capitalism + nationalism = prosperity
Capitalism + globalism = poverty
The question is whether Article I Section 8:
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
...gives Congress the power to delegate its own powers to the President in emergency situations where it still have oversight?
I don't think Congress gave the President total delegation of tariff powers; it gave the President emergency tariff powers subject to reporting back to Congress. The President is using the tariff in his foreign affairs role to rebalance trade after 80 years of reconstruction since the end of WW2.
SCOTUS might give the President more leeway in his diplomatic role than it might have if this were totally a domestic action.
-PJ
“The President’s actions regarding the tariffs are popular.”
I’m curious as to where you see that. The polls I’ve read have the tariffs disliked by over 60%, most recently Pew last month.
If Congress wants to legislate President Trump’s tariffs, they could have done them on Liberation Day, April 2, or shortly thereafter. Why wait to see how SCOTUS rules?
Capitalism does not need trade to exist. So your definition is of global capitalism, the kind Marx promoted.
You Free Traitors had 70 years to screw up the USA. Trumps pro America trade policy is in its infancy. If allowed the popularity will grow. You and your TDS cohorts in the media will be defeated.
Problem with that is congress would take 100 years to negotiate/renegotiate terms and fail to pass 90 percent of what they negotiate. They dont have the versatility to keep up with changing circumstances. Best you could get out of them is a reciprocal tariff law. "We charge you what you charge us". That would still be good but it doesnt allow for horse trading since all trading partners dont have equal strengths and weaknesses.
I know. That still doesn’t explain why it makes any sense to impose tariffs on commodities we can’t produce ourselves ... from countries that can’t afford what we produce anyway.
The other part is revenue generation. As a deficit hawk you must approve of that.
I’m fine with the revenue generation. That’s why I support tariffs in general.
That isn't relevant to whether the delegation is actually 1) authorized by the IEEPA, and 2) constitutional even if authorized by the IEEPA. Whether its good policy or not...doesn't matter.
Best you could get out of them is a reciprocal tariff law. "We charge you what you charge us". That would still be good but it doesnt allow for horse trading since all trading partners dont have equal strengths and weaknesses.
The President could then negotiate something different and send it to Congress for ratification. If Congress can't do it's job...too bad.
The argument is that the President's declaration of emergency itself is non-reviewable, which means it is meaningless as a limitation.
And "reporting back" to Congress isn't a limitation either. There would be a better argument if they actually expired after a certain period unless ratified, but they don't. All he has to do is report back -- that's it.
Congress theoretically could stop the President by passing a new law, which a President could of course veto. So essentially, you have changed the legislation process specified in the Constitution from requiring the agreement of both houses and the President to pass legislation, to requiring a 2/3 majority in both houses to stop the President from legislating on his own.
That's backwards.
I'd also ask -- if a Congress can delegate the authority to set tariffs to the President, why could it not also delegate the power to set income tax rates on the American people? There's no discernable legal distinction between those two things.
Congress can delegate tariff to the president on limited options as in anything else.
Tariffs are not taxes. If they were, why is the word tariffs used?
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