The Tariff Wears Two Hats: What the SCOTUS Majority Overlooked

On the question of President Trump’s emergency tariffs, the Supreme Court has spoken. In the Court’s view, the International Emergency Economic Powers Act (IEEPA) does not authorize the president to impose tariffs during a declared emergency, namely, the massive trade deficits that threaten our economic security.

But the Court’s decision in Learning Resources, Inc. v. Trump was highly fractured. Only three justices—Kagan, Sotomayor, and Jackson—held that the law, under normal principles of statutory construction, does not give the president authority to impose tariffs. Justice Kavanaugh’s dissent, joined by Justices Thomas and Alito, quite persuasively demonstrates why that is not the case. As Justice Thomas noted in his separate dissent, the power to “regulate…importation” has throughout American history “been understood to include the authority to impose duties on imports.”

The other three justices who formed the majority holding—Chief Justice Roberts and Justices Gorsuch and Barrett—resorted to the major questions doctrine. This principle of statutory interpretation holds that Congress must speak with super clarity on issues of “economic and political significance” for the Court to approve a delegation to the executive. The turn to the major questions doctrine implies that the statute, under normal principles of statutory construction, authorizes the president’s action, a point that Justice Gorsuch explicitly conceded in his concurring opinion.

But here’s the rub. The Court has never previously applied the major questions doctrine in the foreign policy arena—and for good reason. Under Article II of the Constitution, the president has the core responsibility for foreign policy. Chief Justice Roberts acknowledged as much, stating in the part of his opinion that garnered only three votes that “as a general matter, the President of course enjoys some ‘independent constitutional power[s]’ over foreign affairs ‘even without congressional authorization.’” That’s quite an understatement. The failure to recognize the full measure of that fundamentally important piece of constitutional law is the first fatal flaw in the chief justice’s opinion.