Justice Brett Kavanaugh slammed the Supreme Court’s majority ruling striking down President Donald Trump’s sweeping “Liberation Day” tariffs, citing the ramifications the decision will have beyond the imposition of the tariffs themselves.
The high court ruled 6-3 that the International Emergency Economic Powers Act does not authorize the president to impose tariffs without congressional approval, with Justices Clarence Thomas, Samuel Alito, and Kavanaugh dissenting from the majority’s holding. In his lengthy dissent, which was joined by Thomas and Alito, Kavanaugh explained why he disagreed that IEEPA does not confer tariff power to the president in emergencies, but also stressed that the “interim effects” of the majority’s ruling could be “substantial.”
“The Court’s decision is likely to generate other serious practical consequences in the near term,” Kavanaugh said.
The dissent pointed to the unresolved issue of refunds for the unlawfully implemented tariffs and to how striking them down will affect international trade deals brokered by the Trump administration.
“Refunds of billions of dollars would have significant consequences for the U.S. Treasury. The Court says nothing today about whether, and if so how, the Government should go about returning the billions of dollars that it has collected from importers,” Kavanaugh wrote. “But that process is likely to be a ‘mess,’ as was acknowledged at oral argument.”
“A second issue is the decision’s effect on the current trade deals. Because IEEPA tariffs have helped facilitate trade deals worth trillions of dollars—including with foreign nations from China to the United Kingdom to Japan, the Court’s decision could generate uncertainty regarding various trade agreements,” Kavanaugh added. “That process, too, could be difficult.”
Kavanaugh argued that, similar to other laws, IEEPA’s broad grant of power to regulate importation includes the power to tariff.
“The sole legal question here is whether, under IEEPA, tariffs are a means to ‘regulate…importation.’ Statutory text, history, and precedent demonstrate that the answer is clearly yes: Like quotas and embargoes, tariffs are a traditional and common tool to regulate importation,” Kavanaugh said.
“Since early in U.S. history, Congress has regularly authorized the President to impose tariffs on imports of foreign goods. Presidents have often used that authority to obtain leverage with foreign nations, help American manufacturers and workers compete on a more level playing field, and generate revenue for the United States,” he added.
Kavanaugh also claimed that “IEEPA’s authorization for the President to impose tariffs did not grant the President any new substantive power” and pointed to other laws that authorize tariff powers to the president under different circumstances. He noted that the majority’s decision “is not likely to greatly restrict Presidential tariff authority going forward.”
Thomas wrote his own dissent, arguing that the majority erred in holding that a law granting the president the authority to tariff would violate two clauses of the Constitution that prevent Congress from delegating certain powers to the executive branch.
“Both Clauses forbid Congress from delegating core legislative power, which is the power to make substantive rules setting the conditions for deprivations of life, liberty, or property. Neither Clause prohibits Congress from delegating other kinds of power,” Thomas wrote.
“Because the Constitution assigns Congress many powers that do not implicate the nondelegation doctrine, Congress may delegate the exercise of many powers to the President. Congress has done so repeatedly since the founding, with this Court’s blessing. The power to impose duties on imports can be delegated,” he added.
Thomas also argued that “power over foreign commerce was not within the core legislative power,” also saying that “engaging in foreign commerce was regarded as a privilege rather than a right.”
SUPREME COURT STRIKES DOWN TRUMP’S SWEEPING ‘LIBERATION DAY’ TARIFFS
The Supreme Court’s ruling on Friday affects Trump’s sweeping Liberation Day tariffs that imposed duties of 10% on most countries and higher “reciprocal” rates on others, along with the tariffs imposed on Canada, Mexico, and China over their role in the fentanyl crisis. The president’s tariffs on aluminum, steel, and cars, among other products, are not affected by the ruling because they were implemented using a different law.
The 6-3 ruling is Trump’s most significant loss at the high court since returning to the White House last year, and a massive setback to one of the key pieces of his economic agenda. The Supreme Court has otherwise largely sided with Trump in cases that have tested the limits of executive power.