The Supreme Court delivered a crushing blow to President Donald Trump’s policy agenda on Friday, ruling that a Cold War–era law for economic emergencies does not give the executive branch a blank check to impose trillions of dollars in tariffs without congressional approval.
Chief Justice John Roberts, writing for himself and five other justices, held that Trump had exceeded his powers under the International Emergency Economic Powers Act of 1977, also known as IEEPA. “The President asserts the extraordinary power to unilaterally impose tariffs of unlimited amount, duration, and scope,” Roberts concluded. “In light of the breadth, history, and constitutional context of that asserted authority, he must identify clear congressional authorization to exercise it.”
The six-justice majority brought together the court’s three liberal members and three of their conservative colleagues: Roberts and Justices Neil Gorsuch and Amy Coney Barrett. But while they agreed on the outcome, they differed widely on the reasoning that led them there.
Justice Elena Kagan, writing for the liberals, argued that Trump’s invocation of IEEPA failed under the “ordinary rules of statutory interpretation.”
“Usual text-in-context interpretation dooms the tariffs the President has imposed,” she explained. “The crucial provision of IEEPA, when viewed in light of the broader statutory scheme and with a practical awareness of how Congress delegates tariff authority, does not give the President the power he wants.”
Roberts, on the other hand, argued alongside the other two conservatives that the tariffs were invalid under the “major questions doctrine.” Under that doctrine, the executive branch cannot invoke congressionally delegated powers in novel ways on matters of “vast economic and political significance” unless the courts decide that Congress has “spoken clearly” enough to authorize it.
In practice, the major questions doctrine has served one real purpose: It’s given the court’s conservative justices a freewheeling veto over Obama and Biden administration policies over the past decade. The doctrine has also received criticism in legal circles for its lack of a firm jurisprudential basis, for the uneven ways in which the court applies it, and for its vague and insubstantial nature. (What is a matter of “vast economic and political significance,” and what isn’t?)
While the differences between the justices may seem arcane, the implications for the court’s jurisprudence could be significant. The court’s conservatives missed a chance to bolster the doctrine’s legitimacy by applying it to a Republican president for the first time. Their failure also exposed fissures among the conservatives over the nature of the major questions doctrine itself.
Those implications pale in significance, at least in the short term, with the political and economic consequences. By its own terms, the ruling is a defeat for the president. Trump has used IEEPA tariffs—and the mere threat of imposing them—as his principal means of carrying out foreign policy. They became emblematic of his personalist rule, allowing him to punish and reward foreign nations at a whim.
Earlier this month, for example, Trump said he had initially imposed a 30 percent tariff on Swiss goods but raised it higher after a perceived slight from the “prime minister of Switzerland.” (Switzerland does not have a prime minister; he was likely referring to a member of the country’s seven-member executive council.)
“She was very aggressive, but nice, but very aggressive,” Trump said in a Fox Business interview. “‘Sir, we are a small country, we can’t do this, we can’t do this,’ I couldn’t get her off the phone.… And I didn’t really like the way she talked to us, so instead of giving her a reduction, I raised it to 39 percent.”
Tariff-related abuses have been a constant in Trump’s second term. When a Canadian provincial government aired advertisments during the World Series last fall that featured clips of Ronald Reagan explaining why tariffs were economically harmful, Trump furiously responded by raising them on Canada—all while claiming that Ottawa was trying to exercise some sort of malign influence on the court. Earlier that summer, Trump levied a 50 percent tariff on Brazilian imports after Brazil’s Supreme Court issued rulings against Trump ally and former President Jair Bolsonaro.
Tariffs have also been central to Trump’s second-term domestic agenda, behind only mass deportations in importance to the administration. Tariffs, the White House had argued, would reshore lost American industries, reduce prices for consumers, and lower the national debt. At one point, the Trump White House floated the idea of abolishing the IRS altogether and using tariffs to fill the gap.
The White House has asserted that Trump can fill the void with new tariffs through other congressionally delegated powers. It is true that multiple statutes explicitly give the president the ability to raise tariffs on imported goods. But the experience for Trump will likely be akin to driving a rented Honda Civic after crashing one’s Bugatti into a wall. Other laws impose conditions on when, how, and for how long the president can levy them. That makes them less suitable for a president who prefers to govern on casual whim instead of through a measured administrative process.
Trump’s ire toward the six justices for their ruling was immense and defamatory. “They’re very unpatriotic and disloyal to our Constitution,” he told reporters at the White House. “It’s my opinion that the Court has been swayed by foreign interests and a political movement that is far smaller than people would ever think.” In reality, the courts have signaled this exact outcome since last year.
The case, Learning Resources v. Trump, came from two small businesses that develop educational products for young kids and manufacture them in China. Their supply chain was affected by multiple tariffs imposed by Trump through his claimed IEEPA powers starting last April. The White House declared its initial wave of IEEPA actions to be “Liberation Day,” after it imposed a 10 percent global tariff on all imports and a variety of higher ones for specific countries.
Major American companies declined to challenge the tariffs in court at first, with some apparently hoping to persuade the Trump administration to grant them bespoke exceptions. It fell to smaller businesses like Learning Resources and, in a separate case, VOS Selections to argue that Trump’s actions went beyond what IEEPA authorized. While the law allows the president to “regulate … importation[s]” during a national emergency, the law made no mention of tariffs and no other president had tried to invoke the nearly 50-year-old law to levy them.
A federal district court sided with Learning Resources in May, while the U.S. Court of International Trade sided with VOS Selections in August. Both rulings signaled that the Trump administration was unlikely to prevail with its novel interpretation of the statute. No court was persuaded by Justice Brett Kavanaugh’s suggestion in an unrelated opinion last year that the major-questions doctrine did not apply to a president’s national-security powers.
The court agreed to hear the tariff challenges last year and set oral arguments for November. They were, generally speaking, a disaster for the Trump administration. It was a safe bet that the court’s three liberal justices would rule against Trump given the lack of legal authority for his actions. Some of the conservatives were also deeply skeptical.
Gorsuch, Trump’s first appointee to the high court, described the claimed powers through IEEPA as a “one-way ratchet in the gradual accretion of power in the executive branch and away from the people’s representative.” Roberts went out of his way to puncture the White House’s central myth about its trade policy. “Who pays the tariffs?” he asked Solicitor General D. John Sauer, who couldn’t give him a straight answer. (The correct answer is American businesses and individuals, not foreign governments. As four economists from the New York Federal Reserve explained at length earlier this month, “nearly 90 percent of the tariffs’ economic burden fell on U.S. firms and consumers.”)
Friday’s ruling transmuted that skepticism into law. Roberts noted that while IEEPA granted many explicit powers to the president, the word “tariffs” were not among them. “That omission is notable in light of the significant but specific powers Congress did go to the trouble of naming,” he explained. “It stands to reason that had Congress intended to convey the distinct and extraordinary power to impose tariffs, it would have done so expressly—as it consistently has in other tariff statutes.”
From here, however, the justices in the majority split apart. Roberts, in a portion joined by Gorsuch and Barrett, argued that the major-questions doctrine also foreclosed the tariffs. Trump’s sweeping interpretation of IEEPA “would replace the longstanding executive-legislative collaboration over trade policy with unchecked presidential policymaking,” the chief justice wrote. “Congress seldom effects such sea changes through ‘vague language.’”
But the court’s liberals declined to join that portion of the decision, instead only joining another section with a more traditional interpretation of the statue to provide the majority necessary to reach a decision. When lower courts look to the ruling as precedent in the future, they will only treat the portions supported by a majority of the justices as binding upon them.
Kagan, writing for herself and Justices Elena Kagan and Ketanji Brown Jackson, explained in a concurring opinion that she retained her opposition to the conservatives’ use of the major-questions doctrine in past cases. “The use of a clear-statement rule here is unnecessary because ordinary principles of statutory interpretation lead to the same result,” she wrote. “It is not just that the Government’s arguments fail to satisfy an especially strict test; it is that they fail to satisfy the normal one.”
In a concurring opinion of his own, Gorsuch tried to suggest that Kagan had seen the light on the major-questions doctrine and “all but endorse it today.” That prompted her to gently but firmly push back in a footnote in her own opinion that she hadn’t endorsed it at all. “Given how strong his apparent desire for converts, I almost regret to inform him that I am not one. But that is the fact of the matter.”
The conservative justices’ failure to rally around a major-questions doctrine ruling exposed other rifts. Barrett and Gorsuch sketched out some important differences about the level of precision that they believe the doctrine supposedly requires. Gorsuch, who prefers a much stricter separation between executive and legislative powers, could not convince Barrett to adopt the same approach.
“I understand Justice Gorsuch to require Congress always to speak precisely to any major power that it intends to give away,” she wrote. “As I have said before, I think that other, ‘less obvious’ clues can do the trick. I do not see any such clues here; in fact, as the Court explains, the clues we have point in the opposite direction.” In other words, Barrett may be willing to reject major-questions doctrine challenges if Congress “speaks clearly” enough without spelling it out completely.
Those differences pale in comparison to those offered by the three dissenters. Kavanaugh, joined by Justices Clarence Thomas and Samuel Alito, stuck by his national-security exception from last summer to argue that the Trump administration was clearly empowered by Congress to impose the tariffs in question through IEEPA. Neither that, nor his claims that a medley of different statutes and lower-court rulings, thoroughly persuaded his colleagues.
In one instance, Kavanaugh claimed that a 1981 IEEPA case involving the Iranian hostage crisis had vindicated his approach to the major-questions doctrine. Roberts responded in a footnote by citing all the places where the previous court had explicitly said multiple times that its ruling was narrowly confined to the facts at hand. “This is not quite ‘no, no, a thousand times no,’ but should have sufficed to dissuade the principal dissent from invoking the case with respect to the quite distinct legal and factual issues present here,” he remarked.
Justice Clarence Thomas went even further to make the baffling and novel argument that Congress could not delegate “core legislative power, which is the power to make substantive rules setting the conditions for deprivations of life, liberty, or property” to the executive branch, but could freely delegate the “power to impose duties on imports” and some other powers. It is not clear how “duties,” which he distinguished from taxes and tariffs, would not fall under the “property” category.
He grounded this reasoning in a variety of sources, but most notably the purported powers of English kings before the American Revolution. “In Great Britain, the King had no unilateral legislative power, but he had much unilateral power over foreign commerce,” Thomas claimed, quoting from a range of scholarly and historical sources. “His power over foreign commerce included the power to ‘govern foreign trade,’ and to ‘prohibit any of his subjects from leaving the realm.’” That power, he concluded, implicitly transferred to the American presidency.
All of the other justices ignored Thomas’s claims except for Gorsuch, who either felt obligated to argue with every single other justice in this case, couldn’t stomach Thomas’s reasoning, or both. He firmly but politely explained that Thomas’s vision of the separation of powers bore no resemblance to the one explicitly laid out by the Constitution, or to the one described elsewhere by the Framers.
On Thomas’s royal argument, Gorsuch respectfully pointed out that it had no basis in English history. “That seems doubtful,” he wrote. “Tariffs may have been among the King’s prerogative powers during the reign of Edward I. But even before the year 1400, Parliament had achieved some ‘victory over the King in the matter of imposing import duties.’ And after the Glorious Revolution of 1688, as this Court has put it, Parliament ‘secured supremacy in fiscal matters.’” Thomas, in other words, was trying to grant executive powers to Trump that even medieval English kings could not wield.
As it stands, it is abundantly clear that the court’s liberal/conservative divide on the major-questions doctrine is less consequential than the emerging intra-conservative split over it. Friday’s decision would have been the perfect opportunity for the Roberts Court to prove, with the stakes at their highest and the illegality at its clearest, that it could apply one of its most controversial doctrines to Democratic and Republican presidents alike. It failed to do so.
The most immediate question is how much damage the court has done to itself in Trump’s eyes. Though it should have been clear that he would likely lose this case for months, the president reportedly reacted with shock and anger behind closed doors at the White House on Friday. His public remarks a few hours later were no less bitter and personally venomous.
“I think it’s an embarrassment to their families,” Trump said of Gorsuch and Barrett, whom he had nominated to serve on the court. He described them and the other justices in the majority as a “disgrace to our nation” and suggested that they shouldn’t attend his State of the Union address next week. It was a striking glimpse into the president’s perception that his judicial appointees must be personally loyal to him and his vision of the law.
Trump also indicated that he would, as expected, try to re-impose the tariffs through other statutes. But since those laws don’t go nearly as far as IEEPA would, he will likely face new legal hurdles and procedural frustrations. That could bring him right back to the Supreme Court down the road. The justices would then have another opportunity to disgrace themselves, their families, and the nation merely by interpreting an act of Congress as it is written, not as the president would like to read it.
