Will the Supreme Court Anoint Trump the Tariff King?

The Supreme Court will hear reciprocal tariff oral arguments on Wednesday.

The Tariff King and the Supreme Court

The Wall Street Journal editorial board discusses The Tariff King and the Supreme Court

The Supreme Court on Wednesday will take up cases that will determine if Mr. Trump and every other President really has the power to act like a king (Learning Resources, Inc. v. Trump, Trump v. V.O.S. Selections).

It’s hard to overstate the importance of these cases for the U.S. constitutional order and economy. Article I vests Congress with authority over taxation and foreign commerce. This was a response to the British Crown’s taxation of the colonies without their consent.

For most of U.S. history, Congress alone determined tariff policy. But after the Smoot-Hawley tariff disaster of 1930, Congress delegated authority to the President to negotiate bilateral trade deals. It has since ceded more power now and then in statutes that stipulate specific and limited terms for imposing tariffs.

Enter Mr. Trump, who has waved away such limits. He claims the power to impose tariffs on any country at whatever rate he wants under the 1977 International Emergency Economic Powers Act (IEEPA). That law gives the President authority in a national emergency to “deal with any unusual and extraordinary threat,” including to “regulate” the “importation” of foreign property.

Mr. Trump this spring slapped tariffs on most countries around the world, declaring that the U.S. trade deficit and foreign fentanyl are national emergencies. He has since adjusted the tariff rates, often to punish or reward foreign governments. See his recent 10% border tax hike on Canada in retaliation for the government of Ontario’s TV ad quoting Ronald Reagan’s criticism of tariffs.

Such arbitrary taxation without representation is precisely what the Constitution’s Framers sought to prevent by vesting power over taxes and trade with Congress. Mr. Trump likes to say other countries pay his tariffs. But the tariff is paid by U.S. importers, which have to eat the cost or pass it along to customers.

As for the law, the U.S. has run a trade deficit for 50 years and deaths from fentanyl have been declining. How do these suddenly qualify as “national emergencies”? Even if the President deserves deference over what is an emergency, the Justices in Loper Bright (2024) stressed that courts needn’t defer to the executive’s statutory interpretation.

Start with IEEPA’s text. The Trump team says the power to “regulate . . . importation” encompasses tariffs. Federal laws also authorize agencies to “regulate” securities, pollutants and pharmaceuticals, among other things, but this doesn’t mean they can also tax them. By contrast, other laws give the President express authority to impose tariffs.

This includes tariffs on imports that threaten national security (Section 232), in response to “large and serious” balance-of-payments deficits (122), and discriminatory trade practices (301). Unlike these provisions, IEEPA isn’t part of a trade law.

As Justice Antonin Scalia wrote for the Court in 2001, Congress doesn’t typically “hide elephants in mouseholes.”

This “lack of historical precedent” is a “telling indication,” the Court has said, that a broad exercise of executive power is illegal. The Court’s major questions doctrine also requires express authorization from Congress for actions that are politically and economically significant. Mr. Trump’s tariffs certainly qualify.

The Justices have applied this doctrine when a President has sought to undertake a “‘fundamental revision of the statute, changing it from [one sort of] scheme of . . . regulation’ into an entirely different kind.” For instance, Joe Biden’s student loan forgiveness, Covid eviction moratorium and vaccine mandate. Mr. Trump’s tariffs are such a wholesale statutory rewrite.

The Trump team says Richard Nixon used IEEPA’s progenitor, the Trading with the Enemy Act, in 1971 to impose 10% across-the-board tariffs to address a balance of payments crisis after the collapse of the Bretton Woods monetary system. But this history argues against, not for, the President’s reading of the law.

After a trial court struck down the Nixon tariffs, Congress let the President address “large and serious” balance-of-payments deficits by imposing tariffs of up to 15% for up to 150 days—after which Congress must approve them. An appellate court later upheld the tariffs, but on the narrow grounds that they didn’t alter Congress’s nondiscriminatory trading scheme.

A couple of years later, Congress enacted IEEPA to cabin the President’s national-security powers. If IEEPA confers the broad tariff authority that the Trump team claims, Section 122 and other similar tariff delegations by Congress would be superfluous.

The Trump Administration tries to leapfrog all of these statutory obstacles by citing the President’s Article II foreign-policy authority. Few conservatives are more deferential to presidential overseas authority than we are. But the power of the purse still belongs to Congress and can’t simply be wished away with the words “foreign policy.” Tariffs are taxes on Americans.

If the Court blesses this unlimited presidential tariff power, future Presidents will be able to cite emergencies to justify tariffs to pursue all kinds of policy goals. An all-too-likely example is a climate emergency to tax imports of countries with high CO2 emissions.

There Are No Emergencies

I have made every one of the arguments the WSJ just made. And the en banc (full) appeals court struck down the tariffs.

Realistically, it was the only possible ruling. The Supreme Court can set new law, lower courts cannot.

If the Court does make Trump a tariff king, I can tell you the result in advance. The next Democrat president will declare a climate emergency and wreak havoc in doing so.

Anyone with an ounce of common sense should be rooting against Trump and his tax on consumers and businesses, often for no reason other than political.

How Will the Court Rule?

I am confident how the Court should rule. But I am no longer sure how the court will rule.

The Court may very well wish to set new precedent. It would be unwise for reasons stated, but Justice Roberts seems fearful of Trump.

I am wondering if there is some sort of ruling that pleases no one. The tariffs on Canada and Brazil for clearly political reasons are absurd. Will the Court really allow those?

Please consider what I wrote on June 10 in Justice Department Asks Appeals Court to Let Trump Tariffs Remain for Longer

The word tariff is not even in the act. Nor are synonyms like duties.

Second, there is no emergency. An emergency is a sudden unexpected crisis. Trade deficits have existed for decades.

Third, there is no unusual or extraordinary threat. Trump has even imposed tariffs on nations with which we have no trade deficit including islands inhabited only by penguins.

Fourth, there is lack of a clear authorization by Congress to grant Trump such authority. The applicable principle involved is called “major

Full Appeals Court Rules 7-4 Against Trump’s Reciprocal Tariffs

On August 29, I commented Full Appeals Court Rules 7-4 Against Trump’s Reciprocal Tariffs

The 7-4 ruling from the U.S. Court of Appeals for the Federal Circuit upheld a lower-court decision that undercuts a core tenet of President Trump’s economic agenda. The majority found the president overstepped his authority under a 1977 law known as the International Emergency Economic Powers Act, or Ieepa.

In ruling against Trump, the appeals court majority, in an unsigned opinion, said Ieepa “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.” Nowhere in the statute does the term “tariff” or synonyms like “tax” and “duty” appear, the court observed.

When “Congress intends to delegate to the President the authority to impose tariffs, it does so explicitly,” the court said. “This is no surprise, as the core Congressional power to impose taxes such as tariffs is vested exclusively in the legislative branch by the Constitution.”

The court said the “unheralded” and “transformative” nature of the tariff policy triggered the major questions doctrine—a term the Supreme Court coined when striking down Biden administration policies, such as student debt relief, the justices saw as reaching far beyond the regulatory authority Congress had granted the executive branch.

Recall that the Court ruled against Biden on student loans largely on the basis of the “major question”. There are even more reasons to strike the idea here.

However, a ruling against Trump is by no means certain.

The Court can find an excuse to do what it wants here simply by stating Congress gave away its rights in the IEEPA. It can defer to Trump on alleged “emergencies”.

Oral arguments are on Wednesday. A ruling may take weeks.

Related Posts

July 9, 2025: Trump Slaps Brazil With a 50 Percent Tariff Over Treatment of Political Ally

The tariff Bizarro World gets more bizarre.

October 25, 2025: Trump Cancels Trade Talks with Canada Over a Ronald Reagan Ad

Reagan was right then, and he is right now.

October 26, 2025: Are Trump’s Hurt Feelings Over Tariffs Now a National Emergency?

Trump just upped tariffs on Canada by 10 percent.

If there is any sanity, the Court will not allow political tariffs.