The Roberts Court Invokes Congress and the Constitution

On Friday, the Supreme Court issued a sharp rebuke to the Trump Administration, rejecting the President’s attempt to use the International Emergency Economic Powers Act (IEEPA) to impose tariffs on foreign nations. President Trump had asserted the “extraordinary power to unilaterally impose tariffs of unlimited amount, duration, and scope.” Yet in Learning Resources, Inc. v. Trump, Chief Justice John Roberts, writing for a six-justice majority, concluded that IEEPA “does not authorize the President to impose tariffs,” period. In this conclusion, the Chief Justice was joined by the Court’s three liberals — Justices Sotomayor, Kagan, and Jackson — and two of Trump’s three appointees to the Court —Justices Gorsuch and Barrett. Justice Kavanaugh dissented, joined by Justices Thomas and Alito.

Learning Resources was the first case in which the Supreme Court reviewed one of the second Trump Administration’s policy initiatives on the merits, and, as was so often the case during Trump’s first term, the Administration came up short. However much authority the President may have to impose tariffs under other statutes, and however much deference the executive branch is due in other contexts, the Trump Administration’s “Liberation Day” tariffs were a bridge too far.

Under IEEPA, the President is authorized to “regulate . . . importation . . . of . . . any property” from foreign nations to deal with “any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States,” once the President declares the existence of a national emergency. Shortly after assuming office, President Trump declared that “large and persistent” trade deficits and the importation of illegal drugs from Canada, Mexico, and China constituted national emergencies, and he invoked IEEPA to impose tariffs of varying amounts on every one of the nation’s trading partners.

There is little question that IEEPA delegates sweeping authority to the President to address foreign economic threats, including the power to “regulate” the “importation” of foreign goods. There was also no question that the President has no inherent constitutional authority to impose tariffs on his own. All such power must be delegated by Congress (at least during peacetime). Thus, the question for the Court in Learning Resources was whether IEEPA authorized the President to impose these tariffs, providing him a procedural shortcut not available under other tariff laws.

While the language of IEEPA is broad, it makes no mention of tariffs, duties, or the use of fiscal tools to control foreign trade. For the majority of the justices, this omission was conspicuous. The text of IEEPA empowers the President to “investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit . . . importation or exportation.” “Absent from this lengthy list of powers is any mention of tariffs or duties,” the Chief Justice observed, adding, “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.”

The Court also noted how IEEPA has been interpreted and used since its enactment in 1977. Hardly an obscure statute, IEEPA is routinely invoked by the Executive Branch. It is a powerful and highly useful tool of foreign policy. And yet, in its half-century of existence, no President had ever relied on IEEPA to impose tariffs or even asserted the authority to do so.

The Trump Administration nonetheless maintained that the power to “regulate . . . imports” necessarily entails the power to impose tariffs. After all, imposing a tariff is one way to limit the volume of imports. This claim has some force and was argued for at length by Justice Kavanaugh in dissent. Yet the Administration could not identify any other statute ever enacted under which the power to “regulate” something included the power to tax it. So, while it is fair to note that the federal government’s power to impose import duties may be understood as an exercise of the power to “regulate” commerce with foreign nations authorized under Article I, section 8 of the Constitution, the question at hand was how to interpret a particular statute. Constitutional understandings aside, in over two hundred years, Congress had never used the word “regulate” to delegate a taxing power to the executive branch.

While six justices agreed that IEEPA does not authorize the imposition of tariffs, they did not agree on their rationale. The Chief Justice, joined by Justices Gorsuch and Barrett, argued this was another “major questions” case, as the government was claiming “broad, expansive power on an uncertain statutory basis,” utilizing a long extant statute in a new and unheralded way, implicating matters of great economic and political significance. In such cases, the Chief Justice explained, the Court has long required a clear statutory warrant for the assertion of such power —and no such statutory warrant could be found here. The liberal justices, led by Justice Kagan, agreed with the bottom-line, but rejected the need to invoke major questions concerns. In a separate opinion concurring-in-part and concurring-in-the-result, she maintained instead that “ordinary tools of statutory interpretation” were enough to resolve the case. As she has in the past, Justice Kagan suggested the major questions doctrine should not be a thing.

Although Justice Kavanaugh dissented on the merits, he joined the Chief Justice’s embrace of the major questions doctrine, just not as applied here. According to Kavanaugh, IEEPA clearly authorized the President to impose tariffs — because imposing duties is one way to regulate imports — and because major questions concerns should have less force in the context of foreign affairs. Yet should the question be unquestionably domestic, such as the authority of an administrative agency to expand its regulatory authority into new realms, Justice Kavanaugh indicated he is still on board. This was significant, in no small part, because it indicates that the major questions doctrine is here to stay, and (contrary to the fears of some progressive commentators) is to be deployed against conservative initiatives as much as progressive ones.

The Court’s broad ruling against the Trump Administration is significant, not least because of the frequent complaint that the Court has been too quick to side with the Administration on interim orders ( a critique I addressed in a prior column). The current Court is more conservative than courts of the recent past, but Learning Resources shows it is more than willing to reject overbroad or otherwise unlawful assertions of executive branch authority.

 Looking at how the case was argued and how the Court characterized the Administration's claims, it is hard not to suspect that the brashness, arbitrariness, and expansiveness of Trump’s use of IEEPA worked against the Administration’s position. Once imposed, the tariffs were repeatedly modified, creating the impression that they were an expression of presidential whim. Although the Court did not question the President’s claimed national emergencies, it would be understandable if multiple justices doubted that persistent and long-standing trade deficits really qualify as such, and there was no reason for anyone to believe these tariffs were calibrated to address that problem.

Given the broad deference presidential administrations generally receive from the courts on matters touching foreign affairs, and the serious arguments that could be made on the Administration’s behalf here (as laid out in Justice Kavanaugh’s dissent here and Judge Taranto’s dissent in the decision below) it is also fair to wonder whether the outcome might have been different had the Administration been more surgical in its use of IEEPA. Narrower, more carefully crafted tariffs would have been no less unprecedented, but they might have survived judicial review. Here, however, the President asserted “the independent power to impose tariffs on imports from any country, of any product, at any rate, for any amount of time. That was just too much to swallow.

President Trump did not take kindly to the Court’s decision and has announced that he will invoke other statutory authorities to reimpose as much of his tariff regime as he can. There are multiple statutes on the books that give the President authority to impose tariffs, but they also come with procedural requirements and other constraints that make them less attractive vehicles for this purpose. And some of the authorities President Trump now wishes to invoke, such as that under Section 122 to address “balance-of-payments deficits,” may face legal headwinds of their own. Andrew McCarthy makes a powerful case that these new tariffs would be illegal, and it does not help that the Trump Administration conceded the point when defending its use of IEEPA.

Learning Resources does not mark the end of the Trump Administration’s costly and economically unproductive tariff agenda, but it does mean that any tariffs the Administration imposes will be those actually authorized by law. It is also a powerful signal that the Supreme Court will continue to police the outer bounds of executive power, even as it erodes constraints on the President’s control over the executive branch. Here, as in so much of the Court’s recent work, the message is that ultimate policy authority lies in the hands of Congress, and that a President can only do things like increase the cost of imported goods if Congress has delegated such power. It is a limited lesson, but one that remains particularly essential.

Jonathan H. Adler is the Tazewell Taylor Professor of Law and William H. Cabell Research Professor at the William & Mary Law School.