The Most Important Supreme Court Case of the Year (So Far)
The justices seem deeply skeptical about Trump's tariffs.
American patriots began their rebellion against the British Crown in part because Parliament, in faraway London, forced them to pay taxes on imported goods without their consent.
Their slogan, “no taxation without representation,” evolved into a foundational principle of the United States. The idea that government cannot extract revenue from the people without clear authority from legislators of their choosing was so important to the Founders that they wrote it into the first article of the Constitution. That provision assigned Congress the power “to lay and collect Taxes, Duties, Imposts and Excises.”
You wouldn’t think we’d be relitigating this on the eve of the nation’s 250th birthday. But we are, because President Trump has asserted the power to levy tariffs without any debate or vote in Congress.
Yesterday, the Supreme Court heard oral arguments in a lawsuit brought by small businesses and states who are affected by the tariffs and want to stop them. It’s a big deal for the economy. But it’s also a historic test of the judiciary’s willingness to act as an independent check on the executive.
Trump claims that striking down the tariffs would “destroy” the country. He probably intended that remark as pressure on the Court and its majority of six conservative Republican justices, including three he appointed during his first term.
The reassuring news is that, based on their questions and comments yesterday, a critical mass of the Court’s conservatives seems to understand the stakes and to be willing to stand up to the president.
“The really key part of the context here, if not the dispositive one ... is the constitutional assignment of the taxing power to Congress,” Justice Neil Gorsuch noted. “The power to reach into the pockets of the American people is just different and it’s been different since the founding and the Navigation Acts that were part of the spark of the American revolution, where Parliament asserted the power to tax to regulate commerce.”
If indeed the mood at oral argument translates into a ruling against the president, the Republican-majority court will have gone a long way toward countering the Democratic allegations that it is a partisan rubber-stamp for Trump.
That charge stems from a series of recent rulings on the Court’s so-called “shadow docket,” in which the conservative majority dissolved lower court injunctions and allowed Trump to freeze foreign aid, fire federal employees, and base some immigration enforcement tactics on race and language, pending resolution of the underlying lawsuits against those policies.
Each time, liberal justices vigorously dissented, arguing that the conservative majority was ratifying Trump’s excesses. Technically, however, these were what lawyers call “interlocutory” decisions, not judgments on those cases’ underlying merits.
The tariffs case is the first time the justices themselves are taking responsibility for a final decision on one of Trump’s signature policies—probably the signature policy of his second term. And they don’t seem fazed by the possibility that he’ll resist and trigger a constitutional crisis.
If so, that can only enhance the Court’s legitimacy. Indeed, if the conservative justices consciously saved political capital by avoiding confrontation with Trump until the most opportune moment, they chose a good issue on which to make their stand. Tariffs are not popular. If the Court rules against him it would be hard for the president to resist: doing so would entail trying to collect tariffs from hundreds of U.S. companies whose general counsels would be advising them that they don’t have to pay.
What’s more, the legal arguments in favor of the president’s position are extremely weak, which became increasingly evident as yesterday’s session wore on.
Trump claimed that Congress had delegated him the power to impose the tariffs through the International Emergency Economic Powers Act (IEEPA), a 1977 law authorizing the president to “regulate” the “importation” of “any property” to deal with “unusual and extraordinary threats” originating abroad.
Previous presidents have used the IEEPA to impose asset freezes, trade embargoes, and other economic sanctions against adversaries such as Iran. President Trump declared “unusual and extraordinary threats” caused by the U.S. trade deficit with multiple foreign partners, including allies such as Japan, as well as the flow of migrants and fentanyl from Mexico, Canada and China. Earlier this year, he imposed steep, coercive tariffs on them, citing the “regulate importation” language in the IEEPA.
No president has ever read the law that way before. That was only logical, since the statute was one of several from the post-Vietnam, post-Watergate period, during which Congress tried to limit executive power in both domestic and foreign affairs. One such episode on Congress’s mind in that period was President Nixon’s imposition of an “emergency” 10 percent tariff on trading partners in 1971.
At oral argument, Trump’s solicitor general, D. John Sauer, tried to sell the theory that the tariffs are just a form of import regulation—“regulatory tariffs,” as he called them.
Chief Justice John Roberts wasn’t buying it. He told Sauer he didn’t think Congress would have ceded such vast power through such indirect language.
“The justification is being used for a power to impose tariffs on any product, from any country, in any amount, for any length of time,” Roberts said. “It does seem like that’s major authority, and the basis for that claim seems to be a misfit.”
This was a reference to the “major questions doctrine,” which the Court had previously used to strike down Biden administration executive overreach on student loan forgiveness and other dubious stretches of statutory authority. This hint that Roberts wants to apply it consistently to a president of his own party was especially significant.
Trump’s policy might have a foreign policy goal, the chief justice noted, but it works through “the imposition of taxes on Americans, and that has always been the core power of Congress.”
Nor was Justice Amy Coney Barrett, a Trump appointee, convinced. “Can you point to any other place in the code or any other time in history where that phrase together—‘regulate importation’—has been used to confer tariff‑imposing authority?” she asked Sauer. He couldn’t come up with a satisfactory answer.
Trying to salvage his case, Sauer found himself jettisoning one of the administration’s main public justifications for the tariffs: the hundreds of billions of dollars they have already brought into the Treasury. In the run-up to the oral argument, the administration warned about having to refund all that money if the Court rules against Trump. Sauer’s brief mentioned estimates that the tariffs will bring in $4 trillion over the next decade, implying that revenue raising was a long-term goal of the policy.
Yet to the Court, he insisted that the purpose of the tariffs was not to help fund the government but to help the president negotiate better trade deals and bring back manufacturing: “the fact that they raise revenue is only incidental,” Sauer claimed.
In short, yesterday’s argument laid bare the pretextual nature of Trump’s legal claim, and exposed the authoritarian spirit at its core. Like many would-be political strongmen, the president professes that the country’s problems are so urgent, and his solutions so necessary, that there is no time to waste on legislative deliberation.
Trump himself basically confessed this in an interview with 60 Minutes: “If they take away the power of tariffs from us, and it has to be quick and nimble, you can’t have Congress, well, hundreds of people have to look. They can’t even agree to continue a country,” he said, alluding to the government shutdown. “You can’t have Congress here. This has to be quick and nimble.”
Justice Clarence Thomas was one of the few on the Court to evince any sympathy for Trump’s position, though even he seemed a bit half-hearted about it.
Late in the argument, he offered attorney Neal Katyal, who was representing the tariff opponents, a hypothetical question seemingly designed to make Katyal’s argument appear less reasonable.
“If one of our major trading partners, for example, China, held a U.S. citizen hostage,” Thomas asked, “could the President, short of embargoing or setting quotas, say the most effective way to gain leverage is to impose a tariff for the purpose of leveraging his position to recover our hostage?”
“No, your honor,” Katyal responded. Import quotas or an embargo might be authorized under the IEEPA, but “tariffs are different.”
This was exactly the right answer. Yes, striking down the tariffs might reduce Trump’s leverage in international negotiations. It might cost the government a lot of future revenue and create what Barrett conceded would be a “mess” over possibly refunding what it’s collected so far.
But there are limits on what people in power can do, even for the sake of laudable goals, lest they violate fundamental liberties as the Founders defined them. And one thing the Founders wanted to prohibit was taxing the American people absent clear authority from Congress—period.
In fact, if you had to express the essence of the Constitution in a phrase, it would be: the ends do not justify the means. The tariff case gives the Supreme Court an opportunity to reaffirm that principle. And from what we saw yesterday, the justices might just be about to seize it.
Charles Lane is a nonresident senior fellow at the American Enterprise Institute and a columnist for The Free Press.
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The Supreme Court is majority conservative. The Trump administration is not conservative. Imposing high taxes is not conservative. Restricting trade is not conservative. Interpreting the Constitution in novel ways is not conservative. The Republican Party may have redefined itself dramatically over the last decade, but the highly-educated conservative Supreme Court justices are loyal to ideas, not the party.
Tariffs cause short-term risk to the upper 10% portfolios for a goal of improving the long-term economic circumstances for the bottom 80%. The SCOTUS bench is 100% comprised of people in the top 10%. They have a conflict of interest on this matter.