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Posted on 10/03/2025 10:00:35 PM PDT by bitt
Conservative law professor William Jacobson of Cornell University, publisher of the Legal Insurrection blog, appeared on the Jesse Kelly show this week and outlined an upcoming Supreme Court case for Trump that he describes as ‘very high stakes.’
The case has to do with the Trump tariffs, and depending on how the court rules, it could have a significant effect on Trump’s economic policy.
Jacobson suggests that it could be a very close call.
Transcript via Legal Insurrection:
Kelly (00:05): The Supreme Court is about to begin another term. I don’t understand these terms. I don’t understand what they’re doing when they’re not in terms, and I also don’t understand what’s coming in this term, but I don’t have to understand any of that because Bill Jacobson understands it all. Joining me now, Cornell University law professor, the Great Bill Jacobson. Bill, what is the Supreme Court term and what do they do when they’re not in their term?
WAJ (00:29): Well, they still do some work. They still have emergency motions, but the term really is just when they hear oral arguments. And it starts first week in October and it runs through potentially June. So that’s what they call a term. And they’re essentially off for the summer, but they’re working over the summer. So term is just a docketing method to get things on the calendar.
Kelly (00:53): Okay. So term is just a term. Just see what I did there, Bill. Alright, so what’s coming? What’s coming up for this term?
WAJ (01:01): Well, we’ve talked about this before, the tariffs, the Trump tariffs is probably the most economically significant case that we’re going to face. And that has to do with whether President Trump, when he imposed the emergency tariffs, exceeded his authority.
There are two issues there. One is did he properly invoke there being an emergency? I think the Supreme Court’s going to say that decision is up to the president. But the more interesting one, which is where he lost in the federal court below, is whether tariffs are even a remedy under this emergency statute. And what they held below in the federal court of appeals was that even if he properly invoked the emergency, tariffs is not one of the remedies. Tariffs are reserved for Congress. The statute doesn’t mention tariffs. So he exceeded his authority.
I think it’s going to be a close call. I don’t know which way that one’s going to go, but his entire economic agenda in many ways, or at least a significant part of it, is built around the tariffs. So this is a very high stakes case.
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This is one of the few issues where one can legitimately say, “conditions have changed since the founding,” as the transactional pace wildly exceeds the process of commerce in the late 18th Century. Trump has made tariffs an element of foreign policy, which is entirely a Presidential prerogative. Yet they are still a tax, which resides with Congress. So for once this is a legitimate debate about which I’m not terribly sanguine given the current makeup of the Court.
Nothing can stop what we are doing.
Then the only constitutional remedy is to amend the Constitution. We don't get to ignore the plain language of the Constitution just because "conditions have changed".
Trump has made tariffs an element of foreign policy, which is entirely a Presidential prerogative.
Presidential policy preferences don't "Trump" the plain language of the Constitution. The Constitution not only says that the power to levy "taxes" and "duties" belongs to Congress, but also expressly states that Congress has the power "to regulate commerce with foreign nations.
No matter how much some might wish the Constitution had given that power to the President so he would have full control over all aspects of foreign policy, it just didn't. The Constitution expressly gave to Congress the power to regulate commerce with foreign nations.
“There are two issues there. One is did he properly invoke there being an emergency? I think the Supreme Court’s going to say that decision is up to the president”
They do not even have authority to overturn an emergency. An emergency declaration is by it’s very nature, a move outside the normal legal framework, and no court can rescind it.
If a President uses an emergency declaration that is wrong headed, or unjustified, the SOLE remedy is that Congress can overturn his declaration with a 2/3 vote or with legislation he will sign. Failing that, they can impeach him and remove him from office.
But the Supreme Court has no jurisdiction to judge or evaluate an emergency declaration.
Primary sources of delegated tariff authority
Section 301 of the Trade Act of 1974: Grants the president the power to respond to a foreign country's unfair trade practices, such as violating a trade agreement, by imposing tariffs or other trade restrictions
Section 232 of the Trade Expansion Act of 1962: Authorizes the president to restrict imports if the Commerce Department finds that the quantity or nature of those imports threatens to impair U.S. national security. This authority has been used to impose tariffs on steel, aluminum, and other products.
International Emergency Economic Powers Act (IEEPA) of 1977: Grants the president broad powers to regulate imports during a declared national emergency. In 2025, President Trump invoked this authority to impose tariffs against multiple countries. A federal court has since ruled against the use of IEEPA for general tariffs, and the case is awaiting review by the Supreme Court.
Section 122 of the Trade Act of 1974: Allows the president to impose a temporary tariff of up to 15% for 150 days to address a serious U.S. balance-of-payments deficit. Trade Promotion Authority (TPA): Periodically granted by Congress to authorize the president to negotiate trade agreements with foreign governments.
This news comes at a time that is critical for Trump's efforts to save our economy from bankruptcy with tariff policy.
Trump has never been a candidate whose claim to office rests on a call for austerity. As the nation rushes headlong toward a fiscal cliff, President Trump has not attempted to trim the life-threatening deficit by cutting spending, rather, he wants to grow our way out of deficits. The principal means to that end, presumably available to any president, is to deploy tariffs.
This fundamental decision to opt for growth rather than austerity was reflected in Donald Trump's first administration and is even more clearly evident today. The heartbreaking failure of DOGE to effect any meaningful cut in federal spending confirms the impossibility in today's political environment to cut spending sufficiently, even as we, and Congress, stare into the abyss.
Senator Rand Paul and Elon Musk found the courage to tell us that the "big beautiful bill" was certainly big but hardly beautiful. It was the product of our politics when Congress was grotesquely dysfunctional. Even as I deplored the profligacy of the law, I warned that its passage was a matter of economic life and death. Donald Trump himself campaigned for the bill as the key to economic prosperity with scant reference to deficit or debt. We were going to grow our way out of debt and deficits into prosperity.
As the big beautiful bill was debated, it was not the time to break ranks because the bill, as a spending bill, was wrong on austerity. At that time our only option was to support it or face disintegration.
What was a president to do? Apart from one (or perhaps two) chances to get legislation through a dysfunctional Congress, there was no hope of effecting spending cuts. But there was one tool that only Donald Trump, as president, recognized: tariffs. Congress had passed laws that facially permitted the executive to impose tariffs: (1)Tariff Act of 1930, § 338 (19 U.S.C. § 1338); (2) Trade Expansion Act of 1962, § 232 (19 U.S.C. § 1862; (3)Trade Act of 1974, § 301 (19 U.S.C. §§ 2411–2420; (4)International Emergency Economic Powers Act (IEEPA) of 1977 (50 U.S.C. §§ 1701–1707.
Armed with these statutes, President Trump embarked on a campaign, not just to redress unfair trade balances with tariffs but to use tariffs to bludgeon foreign corporations to transfer their manufacturing facilities to the United States, both to avoid tariffs and to avail themselves of entry into the huge American consumer market. With much fanfare the president heralded trillions of dollars of foreign investment committed to America. Happy days were here again.
With these announcements it looked like Donald Trump had miraculously found solutions to our desperate fiscal condition but then the Court of Appeals held that many of the tariffs must be enjoined. With this ruling the entire edifice of the Trump administration for the American economy is threatened with ruin. The matter is now scheduled to be taken up shortly by the Supreme Court. We shall see.
If the Supreme Court denies the president's policy of restructuring the American economy by using tariffs, then the criticisms of Sen. Rand Paul, for example, must be reconsidered. In any event, Congress will have to find the fortitude to act contrary to what it was put on earth to do, to stop giving borrowed money away, and to start imposing austerity. The implications for the Republican Party and the 2026 midterm elections are ominous. Worse, the implications for the American way of life are equally ominous.
In 1983 President Reagan imposed a tariff on heavyweight motorcycles:
https://en.wikipedia.org/wiki/1983_motorcycle_tariff
In 2002 Bush imposed a tariff on steel:
https://en.wikipedia.org/wiki/1983_motorcycle_tariff
So, it seems to me, that the President can impose tariffs on imports.
There is a more important point about jurisdiction in this case. The Congress gave itself the power to declare the emergency ended by a joint resolution of the Congress. Thus jurisdiction over whether the emergency was properly invoked rests not with the Supreme Court but with the Congress. Furthermore impeachment is unnecessary because a joint resolution just requires a majority vote in both houses.
Roberts has been compromised since obamacare. I will be amazed if the court gives the president a pass. BUt never fear,our president is brilliant. You can be sure he already has a fall-back position. It’s just who he is.
Exactly,neiter the supreme court or the criminal democrat party can stop what is coming.President Trump will save AMerica and its happening right in front of our eyes.
Let Trump have control of tariffs on foreign goods and congress have controlled over domestic tariffs (taxes).
Does this mean that Trump may lose the ability to place fees on H-1B visas?
TAriffs are the responsiblity of Congress?
Oh boy, here we go.
If they vote against him, which I have a feeling Barrett will, then I guess he has a couple of options.
1. Go to congress and ask them to ratify his ability to put on tariffs.
2. Try some other approach.
Maybe so, but Congress has made a career out of delegating powers to the Executive and in this case, it can be reasonably construed that conditional nature of it preserves the final call sufficiently.
Presidential policy preferences don't "Trump" the plain language of the Constitution.
Obviously, yet we still have National Parks, National Forests, etc. pursuant to illegal treaties, which are obviously not "forts, dock yards, arsenals, magazines, and other needful buildings." (I do suggest you read the article and the one that follows it; you might actually realize that the Constitution was written under the duress of foreign interests which later developed a domestic parallel cohort.) This is not to mention the EPA, OSHA... all in the name of the Commerce Clause. I suggest you not lecture me on the topic.
The Constitution expressly gave to Congress the power to regulate commerce with foreign nations.
Duh. Congress, realizing that, empowered the President to manipulate tariffs citing emergency powers. Foreign levies were bleeding us to death economically. Death is bad, don't you think? So Trump called the situation what it is and took action. Hence, it's not all that bad, but I do agree that an amendment is necessary. So I suggest you hold your breath until the Slave Party realizes that obstructing said amendment is to their advantage to tie Trump's hands in executing foreign policy to settle wars, among other things. The situation is not as black and white as you imply.
You are correct. Thank you for the list.
As Aa Joe pointed out, we already have several pieces of legislation governing these options. Each relationship with each nation has its specific terms. In some respects, these are analogous to treaties negotiated by the President pursuant to Article II. Yet as we have seen with Trump using the levies in a dynamic fashion as negotiating ploys with which to demonstrate that he is serious about this (as opposed to the behavior of previous Presidents), these changes are so dynamic that a 2/3 blessing out of the Senate alone, never mind a 3/4 concurrence from the States would be so unwieldly that it would deprive the Presidency of its legitimate foreign policy execution.
Hence, while it is desirable to come up with broad Constitutional language by which to define said powers, it is unlikely that such a move would leave the President with sufficient options while retaining Congressional oversight on the degree of taxation (tariffs at the time the Constitution was written being the principal source of Federal revenue). This is why I stated in my first post that this is a knotty legal problem of which I doubt the geniuses we have in the current Congress are sufficiently capable, never mind the SCOTUS. My suspicion is that in this case the latter will punt unless Roberts himself is still in his pique.
Well stated… as usual. Ominous is not word I like to hear relating to our future. But it has been hanging over us for decades now.
I'm surprised...
That Cornell has a CONSERVATIVE LAW PROFESSOR!!! 😀
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