Striking Down Tariffs: A ‘Coup’ Prevented, Not Attempted

By Tim Chapman & Timothy Harper

Wednesday, June 04, 2025

 

Last Wednesday, the United States Court of International Trade unanimously ruled that President Trump’s across-the-board tariffs exceeded the president’s power under the International Emergency Economic Powers Act (IEEPA). Right on cue, Stephen Miller, President Trump’s deputy chief of staff, posted on X, “The judicial coup is out of control.” Unfortunately, Mr. Miller has it backward. The Court of International Trade didn’t engage in a coup. It stopped one.

 

Article I of the Constitution states, “All legislative powers herein granted shall be vested in a Congress of the United States.” The very first listed (Section 8) is the “Power To lay and collect Taxes, Duties, Imposts and Excises.” When the founding generation was debating the merits of the Constitution, they questioned whether Congress should have power over both “internal” and “external” taxation, or whether it should be limited to “external” taxes alone, meaning taxes on imports and exports. They did not question whether the president would have unilateral taxing power. The plain text of the Constitution would have made such a notion absurd.

 

The IEEPA, passed in 1977, grants the power to “regulate” international trade to “deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States.” As the court explained in its decision on Wednesday, if IEEPA grants the president the power to impose tariffs whenever he sees fit, IEEPA would be “an unconstitutional delegation of power.”

 

The nondelegation doctrine is a fundamental principle of constitutional law that states that Congress cannot delegate legislative power to the president; instead, it must direct the president’s actions with sufficient detail to ensure that he is merely applying the law, not creating it. This principle has been significantly diluted by justices of the left for nearly a century, allowing the executive branch to exercise vast rulemaking power in violation of the Constitution.

 

Reviving the nondelegation doctrine is one of the many limitations on the federal government’s bloat for which conservatives have been advocating. In 2019, Justice Neil Gorsuch wrote a dissent in a case called Gundy v. United States in which he, joined by Chief Justice John Roberts and Justice Clarence Thomas, argued that, if Congress could transfer legislative power to the executive branch, “it would frustrate ‘the system of government ordained by the Constitution.’” Both Justices Samuel Alito and Brett Kavanaugh have expressed a willingness to join similar reasoning.

 

And they should. The courts play an essential role in our constitutional system. Their responsibility is to ensure that the other two branches follow the law. First and foremost, that means enforcing the Constitution’s limits.

 

Political commentator and activist Charlie Kirk posted on X in response to the court’s decision, “With activist judges, what is even the point of having a president?!” He goes on, “While the Constitution grants Congress the power to impose tariffs, Congress delegated much of that power to the Executive branch,” and that “Courts have given the executive branch broad authority to negotiate trade, that is until now.”

 

But courts have no authority to rearrange the Constitution’s distribution of power any more than Congress does. As Justice Gorsuch explained in his Gundy dissent, the Founders knew that “Article I’s detailed and arduous processes for new legislation . . . were bulwarks of liberty.”

 

If conservatives will not stand up for the Constitution and the liberties it protects, no one will.

 

The ultimate ramifications of the court’s decision remain to be seen. Its decision has been temporarily put on hold by the appellate court, with briefs due from the parties over the coming week. But one thing is certain: striking down these tariffs as unconstitutional was not an act of judicial activism. On the contrary, these three judges (two of whom were appointed by Presidents Reagan and Trump) defended the Constitution’s separation of powers.

 

The court did not attempt a coup. It stopped one.