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For nearly half a century since the law’s passage, no U.S. president invoked the International Emergency Economic Powers Act to unilaterally impose tariffs, a power the Constitution gives to Congress.
On Friday, six Supreme Court justices pointed out that fact in invalidating Donald Trump’s power grab, outvoting three lonely dissents.
During a Substack Live broadcast, Michael Popok and I dissected the emphatic, if long anticipated, ruling against a key pillar of Trump’s agenda for a little more than a half an hour.
Here are some of the most important takeaways from that conversation.
A stinging defeat, but an expected one
In November, Trump’s former criminal defense attorney turned solicitor general John Sauer had a rough reception before the Supreme Court, and legal experts uniformly agreed that Trump’s tariffs were on borrowed time.
At the court’s conservative wing, Trump-appointed Justice Neil Gorsuch tipped his hand by pointing out that duties on colonial trade “were part of the spark of the American revolution.”
Gorsuch made the same point in his concurring opinion, quoting Alexander Hamilton on the tariff power.
“Reflecting the same sentiment that helped fuel the Revolution, [Hamilton] asked: ‘[W]hat legislative power can be more sacred?’” Gorsuch wrote.
Fellow Trump appointee Amy Coney Barrett joined the six-member majority, including all three of the court’s liberal leaning justices and Chief Justice John Roberts, who wrote the majority opinion.
Tariffs are taxes
When arguing on behalf of businesses challenging the tariffs, attorney Neal Katyal began his remarks by stating: “May it please the Court, tariffs are taxes.”
The 6-3 opinion agrees that tariffs are “a branch of the taxing power.”
Since the Constitution gives Congress, not the executive branch, the power to impose tariffs, Trump’s announcement that he will seek other legal avenues to push through the tariffs are likely to hit the same constitutional wall.
Chief Justice Roberts wrote that Trump “must ‘point to clear congressional authorization’ to justify his extraordinary assertion of the power to impose tariffs.”
“He cannot,” Roberts added in the opinion.
In a footnote, Roberts said that the alternatives that Trump might seek to use “contain various combinations of procedural prerequisites, required agency determinations, and limits on the duration, amount, and scope of the tariffs they authorize.”
Gorsuch’s fiery concurrence
One of the Supreme Court’s most reliably conservative Trump appointees, Gorsuch appeared uniquely troubled with the implications of his tariffs for the separation of powers.
It shows in his concurring opinion, which ends with an explanation about why the Constitution gives the legislative branch this power.
“Yes, legislating can be hard and take time. And, yes, it can be tempting to bypass Congress when some pressing problem arises,” Gorsuch wrote. “But the deliberative nature of the legislative process was the whole point of its design. Through that process, the Nation can tap the combined wisdom of the people’s elected representatives, not just that of one faction or man.”
In a different part of his ruling, Gorsuch worried about the “continual and permanent accretion of power in the hands of one man.”
“That is no recipe for a republic,” he wrote.
Under questioning by Gorsuch, Sauer acknowledged that his theory would give a Democratic president the power to impose similar measures unilaterally to combat the climate emergency.
“[I]f history is any guide, the tables will turn and the day will come when those disappointed by today’s result will appreciate the legislative process for the bulwark of liberty it is,” he wrote.
What about the tariff refunds?
The majority opinion appears to be silent about the government’s obligations to provide $175 billion in tariff refunds.
But the dissenting justices — Brett Kavanaugh, Samuel Alito, and Clarence Thomas — were quick to point out that consequence.
“The United States may be required to refund billions of dollars to importers who paid the IEEPA tariffs, even though some importers may have already passed on costs to consumers or others,” Kavanaugh wrote.
During oral arguments, Katyal noted that federal law already has procedures in place for tariff refunds, and the majority justices likely avoided that question to let those avenues run their course. Whether or not there is an administrative burden had no bearing on whether the Trump’s tariffs were unlawful and unconstitutional.
And they were, the court emphatically found.
Read the Supreme Court’s majority opinion, concurring opinions and dissents here.
