Which Conservative Justices Will Fall for Trump’s Tariff Power Grab?
Emergency powers “tend to kindle emergencies,” as a great justice of yore once observed.
AFTER LISTENING TO THE ORAL ARGUMENT in Learning Resources, Inc. v. Trump, and acknowledging that oral arguments don’t always give a clear signal of how justices will decide, I think the Supreme Court will rule against President Donald Trump’s imposition of tariffs. That said, it’s just remarkable that the vote will not be 9–0.
Trump is claiming sweeping powers to impose (and rescind and reimpose and re-rescind) tariffs under the International Emergency Economic Powers Act of 1977 (IEEPA), which was a revised version of the Trading with the Enemy Act of 1917 (TWEA). The acronyms “I-EE-pah” and “TWEE-ah” flew around the courtroom like trapped sparrows.
The question for the Court was whether IEEPA actually grants the president power to impose tariffs—though the word “tariff” does not appear in the text of the law and no president has ever before interpreted the statute to grant taxing power. The law does allow the president fairly wide latitude to “investigate, regulate, . . . direct and compel . . . prevent or prohibit” other actions in emergency situations. In the past, the law has been invoked to combat terrorism, narcotics trafficking, and cybercrime. Addressing the justices on Wednesday, Solicitor General D. John Sauer argued that because the law grants the power to “regulate” trade in certain emergencies, it must also include the power to tariff.
But that’s a huge leap and the reason should be obvious to conservative justices who have claimed to be suspicious of overweening executive power. During the oral argument for Biden v. Nebraska, the 2023 case that struck down President Biden’s student-loan forgiveness plan, Justice Brett Kavanaugh said that “some of the biggest mistakes in the Court’s history were deferring to assertions of executive emergency power,” while “some of the finest moments in the Court’s history were pushing back against presidential assertions of emergency power.”
Yet when it came to Trump’s imposition of crushing tariffs against every nation on the globe, Kavanaugh curled up at the feet of executive power like a purring cat. “The tariff on India, right? That’s designed to help settle the Russia-Ukraine war, as I understand it,” he said on Wednesday. “[I] don’t pretend to be an expert, but if that’s gone, you know, that’s a tool that’s designed—talk about foreign-facing—the most serious crisis in the world. And that’s out the window.”
Not quite. The tariff on India reportedly arose from Trump’s pique at Narendra Modi’s refusal to say (falsely) that Trump had negotiated a ceasefire between India and Pakistan and thus deserved the Nobel Peace Prize.
But let’s grant for the sake of argument that Trump’s 50 percent tariffs on India have a legitimate foreign policy purpose. How does Justice Kavanaugh account for the extra 10 percent tariff on Canada in retaliation for a TV ad that embarrassed Trump by accurately quoting Ronald Reagan’s opposition to tariffs? Or the 40 percent tariff on Brazil (a country with which we ran a trade surplus) for trying and convicting his fellow election stealer Jair Bolsonaro? Kavanaugh should reread his own words about unwise deferral to executive authority.
All of the courts that have considered this case have ruled against the president. As the Court of Appeals for the Federal Circuit ruled in August, imposing tariffs is a core congressional prerogative, and while the statute authorizes a number of discrete actions, tariffs were not among them.
The statute bestows significant authority on the President to undertake a number of actions in response to a declared national emergency, but none of these actions explicitly include the power to impose tariffs, duties, or the like, or the power to tax.
This would seem to be a core point and yet even the conservative justices who on Wednesday appeared to be leaning against the administration in the tariffs case (Gorsuch, Roberts, and Barrett) gave it short shrift. Yes, the president has broad authority in the conduct of foreign policy and the courts are right to steer clear of interference. But when the president claims sweeping authority to impose taxes (tariffs) without congressional approval, he obtains his own independent income stream and Congress becomes a nullity. Article I, Section 8 of the Constitution specifically vests power in Congress to “lay and collect Taxes, Duties, Imposts and Excises.” And Article I, Section 7 specifies that “All bills for raising revenue shall originate in the House of Representatives.”
The Constitution carefully apportions power between the legislative and executive branches. The president is commander-in-chief, but the Congress must declare war. The president appoints judges, ambassadors, and other officers and negotiates treaties with foreign powers, but the Senate must give advice and consent. And the Congress retains the power to borrow money on the credit of the United States, to create the armed forces, to invest in science and “useful arts,” to create the post office, to grant patents, and much more. Most relevant for the present case, it is Congress, not the president, that is granted power “to regulate Commerce with foreign Nations.” If the Court were to accept Trump’s grasp for unreviewable taxing power, the balance would be obliterated.
DURING WEDNESDAY’S ORAL ARGUMENT the advocates and justices discussed the emergency powers in question but didn’t dwell on whether the emergency was real or a Trump alternate reality—like the 2020 “stolen” election.
Trump has claimed several “emergencies” as justification for upending global trade. One is fentanyl. And while it’s true that fentanyl is a dangerous drug that enters the United States through Mexico, it is not the case that Canada is implicated—yet Canada is sanctioned along with Mexico and China. (More than 5,000 pounds of fentanyl were seized on the southern border in the first part of 2025, but only 64 pounds crossed from Canada; that’s the difference between a U-Haul’s worth of fentanyl and a backpack’s worth.)
More risible is the argument that America’s bilateral trade deficits with various countries comprise an emergency. The United States has been running trade deficits since 1976, and in that half-century, it has achieved the highest per capita GDP on the planet. With only about 4.5 percent of the world’s population, the United States accounts for more than 26 percent of global GDP. In any case, something that has been going on since before most Americans were born is hardly an emergency.
In 2023, the conservative justices were correct to brush back the Biden assertion of authority to forgive billions in student debt. As Chief Justice Roberts said during that oral argument, the total might have been “half a trillion” dollars. “If you’re going to give up that much . . . money, if you’re going to affect the obligations of that many Americans on a subject that’s of great controversy, they would think that’s something for Congress to act on.” That, in a nutshell, is the “major questions doctrine,” a judge-created rule of statutory interpretation that dates back to a 2001 opinion in which Justice Antonin Scalia wrote for the majority that Congress doesn’t “hide elephants in mouseholes”; that is, if Congress grants sweeping powers that have large economic or social effects, it should say so forthrightly.
But it shouldn’t require any newly minted doctrine to find that presidential power, like kingly power, cannot go unchecked. Resistance to arbitrary power fueled the American Revolution and inspired the Founding. When Patrick Henry worried that the president might easily become a king, James Madison sought to reassure him by noting that “the purse is in the hands of the representatives of the people.” In McCulloch v. Maryland (1819), Chief Justice John Marshall intoned that “the power to tax involves the power to destroy.” Our Constitution is premised on limiting the power of the state. Judicial conservatives claim to cherish this idea. Let’s see.