By Ilya Somin
Saturday, February 21, 2026
In a 6–3
decision yesterday, the Supreme Court rightly ruled that, under the
International Emergency Economic Powers Act of 1977, the president does not
have the power to “impose tariffs on imports from any country, of any product,
at any rate, for any amount of time.” The ruling is a major victory for the
constitutional separation of powers, rule of law, and millions of American
consumers and businesses harmed by these tariffs.
This decision spared America from a dangerous,
unconstitutional path. Under President Trump’s interpretation of the law, the
president would have had nearly unlimited tariff authority, similar to that of
an absolute monarch. That undermines basic constitutional principles. The
Framers of the Constitution had sought to ensure that the president would not
be able to repeat
the abuses of English kings, who imposed taxes without legislative
authorization.
The three cases decided yesterday (one of which I helped
litigate as co-counsel for small businesses challenging the tariffs) all grew
out of Trump’s April 2025 “Liberation Day” executive order that imposed 10
percent tariffs—supposedly justified by trade deficits—on almost every nation
in the world, plus massive additional “reciprocal” tariffs against dozens,
using authority the president claimed Congress had given him in IEEPA. The
so-called “reciprocal” tariffs even targeted nations that impose no tariffs on
U.S. imports, such as Israel and Switzerland. Trump also used IEEPA to impose
massive 25 percent tariffs against Canada, Mexico, and China, ostensibly
imposed in response to fentanyl inflows from those countries. (These tariffs
were challenged in a case filed by 12 states, though not in ours.)
Trump’s position had multiple flaws. IEEPA does not even
mention tariffs, nor any synonyms such as duties and imposts. The
law does authorize the president to “regulate” certain types of international
transactions in the event of an “emergency” that amounts to an “unusual and
extraordinary threat” to the United States. But the tariff authority and the
power to “regulate” foreign commerce are listed in separate clauses of the
Constitution. And, as Chief Justice John Roberts noted in his opinion for the
Court, the tariff authority is part of the power to tax, an authority the
Framers of the Constitution carefully reserved to Congress because they had
“just fought a revolution motivated in large part by ‘taxation without
representation.’” Furthermore, during the previous nearly 50-year history of
IEEPA, Roberts continued, “no President has invoked the statute to impose any
tariffs—let alone tariffs of this magnitude and scope.”
Rogé
Karma: Get ready for zombie tariffs
Tariffs can, of course, be used for “regulatory”
purposes. The dissenting opinion joined by three of the Court’s conservative
justices—Samuel Alito, Clarence Thomas, and Brett Kavanaugh—makes much of this
point. But that does not mean they are themselves regulations. As Roberts
emphasizes, “the U. S. Code is replete with statutes granting the Executive the
authority to ‘regulate’ someone or something.” But that does not mean all such
laws also delegate the power to tax. “Taxes, to be sure, may accomplish regulatory
ends,” Roberts recognizes. “But it does not follow that the power to regulate
something includes the power to tax it as a means of regulation.”
Three of the justices in the majority—Roberts, Neil
Gorsuch, and Amy Coney Barrett—also concluded that the Trump administration’s
interpretation of IEEPA goes against what has become known as the “major
questions” doctrine, which requires Congress
to “speak clearly” when authorizing the executive to make “decisions of vast
economic and political significance.” Since 2021, the Supreme Court has used
the doctrine to strike down several presidential initiatives, such as President
Biden’s $430
billion student-loan-forgiveness policy and a COVID-era moratorium
on evictions. As Roberts noted, the doctrine applies with particular force
“where, as here, the purported delegation involves the core congressional power
of the purse.” And, as he also points out, “the economic and political
consequences of the IEEPA tariffs are astonishing,” to the point where they
“dwarf those of other major questions cases.” Even the massive Biden
loan-forgiveness plan seems small by comparison.
Roberts, Gorsuch, and Barrett rejected the argument that
the doctrine does not apply because tariffs are a “foreign affairs” power.
First and foremost, tariffs impose taxes that are paid by Americans, and thus
they are not purely a matter of foreign policy. As Gorsuch pointed out in a
concurring opinion, many claimed delegations of congressional power—including
the powers to impose taxes and spend money, and Biden’s attempts to use
emergency powers to combat the coronavirus pandemic—have an effect on foreign
policy. But it does not follow that they all fall into some sweeping “foreign
affairs” exception to major questions.
The three liberal justices—Elena Kagan, Sonia Sotomayor,
and Ketanji Brown Jackson—did not rule on the major-questions issue, because,
as Kagan noted in a concurring opinion, they believe that “ordinary tools of
statutory interpretation” are enough to invalidate the IEEPA tariffs. Like
Roberts, they found that the sweeping nature of the power claimed by Trump
helps doom his position. As Kagan puts it, “What Congress has never done in a
tariff provision is what the Government claims it did here—conferred power on
the President to impose a tariff of any amount, for any time, on only his own
say-so.”
Underpinning the major-questions issue is that of
“nondelegation”: constitutional constraints on the extent to which Congress can
delegate legislative authority to the executive. The Court did not address this
issue, because it did not need to in order to resolve the case. But Gorsuch, in
his concurring opinion, made a strong argument that the president’s claim to
almost unlimited tariff authority would violate nondelegation. If there are any
meaningful limits to delegation at all, a grant of unconstrained power to
impose tariffs would violate them.
The three dissenting justices, in different ways, argue
for a sweeping exemption for tariffs from both the major-questions doctrine and
nondelegation. Thomas’s solo dissent is particularly expansive, arguing that
nondelegation only really applies to “rules setting the conditions for
deprivations of life, liberty, or property.” Such a position would run
roughshod over the text and original meaning of the Constitution, and create a
dangerous form of near-monarchical presidential power.
***
In addition to upholding the separation of powers, the
decision is a victory for the
rule of law, which requires that major legal rules be clearly established
by legislation, not subject to the whims of one person. Since first imposing
the Liberation Day tariffs, Trump has repeatedly suspended and reimposed
various elements of them. He has also imposed or threatened to impose IEEPA
tariffs for a variety of other purposes, such as countering the supposed threat of
foreign-made movies, punishing Brazil
for prosecuting its former president for attempting to launch a coup to
stay in power after losing an election, and most recently castigating eight
European nations opposed to his plan to seize Greenland. Such gyrations
undermine the stable legal environment essential for businesses, consumers, and
investors, and create endless opportunities to reward cronies and punish
political adversaries. Studies
show that firms contributing to the Republican Party were
disproportionately likely to receive exemptions from tariffs imposed during
Trump’s first term, while firms contributing to Democrats were more likely to
have to pay. If allowed to stand, the IEEPA tariffs would have created much
greater opportunities for such corruption.
The more direct consequences of letting the tariffs stand
would have been devastating, too. The Tax Foundation estimates
that these tariffs would have added an average of some $1,000 a year in taxes
per household (the biggest tax increase in decades), reduced GDP by about 0.4
percent a year, diminished real wages, and imposed additional harm in the form
of higher prices throughout the economy. Both a recent
Kiel Institute for the World Economy study and one
conducted by the Federal Reserve Bank of New York find that 90 percent or
more of the cost of the tariffs would have been borne by American businesses
and consumers, not foreign producers. Multiple other
studies reach similar conclusions. The taxes are
regressive and would disproportionately harm the poor and lower-middle
class, because these groups spend a higher percentage of their income on goods
subject to tariffs. The actual effects might have been even larger than
economists’ estimates, as the estimates do not fully consider the effects of
retaliation by trading partners and reduction in consumer choice. In
combination, it was the biggest tax increase in decades, and would have led to the
biggest trade war since the notorious Smoot-Hawley tariff, which gravely
deepened the Great Depression.
David
Frum: The Supreme Court delivers Trump a humiliating gift
Some of the damage has already been incurred: U.S.
businesses had paid more than $133.5
billion toward these illegal tariffs as of mid-December. They may face
a difficult process for reclaiming their funds. But the Trump
administration promised to repay them in lower-court filings, and failing to do
so now would in itself be a serious violation of the law.
The administration
may try to reimpose many of the tariffs using other statutes, such as
Section 232 and Section 301. But those laws have various constraints
that would make it hard for the president to simply impose unlimited tariffs,
as he could have done under his interpretation of IEEPA. As Chief Justice
Roberts noted in his opinion yesterday, “When Congress has delegated its tariff
powers, it has done so in explicit terms, and subject to strict limits,” and
these others statutes all have limitations on the amount and duration of the
tariffs they authorize, plus “demanding procedural prerequisites.” If Trump or
a future president does claim that those other statutes give him unlimited
power, tariffs imposed based on any such theory would themselves be subject to
legal challenges. Yesterday’s decision signals that a majority of the Court is
seriously skeptical of claims of sweeping executive tariff authority.
Following the release of the Court’s decision, Trump announced
his intention to use Section 122 of the
Trade Act of 1974 to impose 10 percent global tariffs. But Section 122
authorizes tariffs only in response to “fundamental international payments
problems” that cause “large and serious United States balance-of-payments
deficits” (which are not the same as trade deficits used to justify the IEEPA
Liberation Day tariffs), or “an imminent or significant depreciation of the
dollar,” or if they are needed to cooperate with other countries in addressing
an “international balance-of-payments disequilibrium.” And Section 122 tariffs
can remain in force for only up to 150 days, unless extended by Congress.
The president is not a king, and is not entitled to
practically unlimited power to impose tariffs. The Supreme Court was right to
deny it to him.
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