President Donald Trump chose not to abandon his chaotic tariff strategy Friday after the Supreme Court rejected his claim of unlimited taxing power, instead naming a slew of new tariffs under other legal authorities that he claims will take in even more revenue than his current tariff regime.
While it is unfortunate that Trump declined to end his tariff policies or even promise to seek approval of his strategy from Congress, the Supreme Court’s 6-3 decision was a huge victory for the Constitution and separation of powers.
The stakes of the Supreme Court’s tariff decision went far beyond the $200 billion in revenue the Treasury Department has collected since Trump announced his tariffs last April, stretching to every issue the federal government touches, from energy to higher education to public health. A decision in favor of Trump’s tariffs would have created an unchecked, supremely powerful executive branch unrestrained by federal courts or Congress. That is not what the Founding Fathers intended.
Chief Justice John Roberts’s majority opinion is short, simple, and irrefutable. Article I, Section 8, of the Constitution unequivocally states that “Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises.” The Supreme Court has long recognized that tariffs are “a branch of the taxing power.” Indeed, Roberts notes, the federal government long depended on tariffs as a main source of revenue. Even Trump’s lawyers were forced to admit that “the president enjoys no inherent authority to impose tariffs during peacetime.”
Trump and the dissents argue that the International Emergency Economic Powers Act of 1977 transferred Congress’s tariff power completely from Congress to the executive without review by federal courts. They claim the IEEPA, which does not contain the word tariff and was specifically passed by Congress after President Richard Nixon abused the law’s predecessor to implement tariffs, is vague enough to infer that Congress meant to include that power.
Before this case, the Supreme Court’s conservative majority had built a new “major questions” doctrine, replacing an outdated Chevron doctrine that gave too much power to the executive branch. First in National Federation of Independent Business v. OSHA (overturning President Joe Biden’s emergency COVID vaccine mandate), then in West Virginia v. EPA (overturning Biden’s carbon emissions cap), and finally in Biden v. Nebraska (overturning Biden’s emergency student debt forgiveness program), the Supreme Court held that the executive branch may not decide issues of vast economic or political significance unless Congress has clearly authorized it to do so in the statute.
The dissenters would create a “foreign affairs context” exception to the major questions doctrine. Any policy, under the dissent’s reasoning, that touched foreign policy would give the executive branch latitude to interpret congressional grants of authority. Roberts wisely rejected what would have amounted to an end run around the major questions doctrine. He tartly concluded, “There is no major questions exception to the major questions doctrine.”
Trump has had ample time to take his tariff policy to Congress. Not only have Republican majorities passed a big reconciliation bill since Trump instituted his “emergency” tariffs, there was even talk among Republican senators about including new tariff authorities for Trump in the legislation. But the White House clung to the theory that Trump already had infinite tariff powers.
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In his press conference Friday promising new and higher tariffs, Trump declared, “I have the right to do tariffs. I don’t need congressional approval for tariffs.” This is not what the Constitution says, it is not what Congress intended when it passed IEEPA, and the 6-3 majority rightly set the president straight.
The Supreme Court may, in ruling as it has, have done Republicans and Trump a considerable favor, if only he could accept it. Tariffs have militated against voters’ biggest concern: prices. Tariffs add to the cost of everything we buy from abroad. Trump is underwater in pulling about the economy, and prices are a big factor in that public disappointment. Republicans need to turn public perceptions around if they are to stand any chance of a successful media election campaign. Eliminating unnecessary, damaging, and unconstitutional tariffs would do the economy and the majority party a power of good.