The Supreme Court Keeps the Taxing Power with Congress

National Review Online

Friday, February 20, 2026

 

We told you so.

 

Donald Trump is the duly elected president, and whatever one thinks of the wisdom of his views of trade and tariff policy, he is entitled to exercise the full powers of the presidency. What he is not entitled to do is exercise the full powers of Congress — and certainly not core congressional powers that no statute clearly handed over to him. If he wants more power than he has, he should ask Congress to give it to him.

 

That, and only that, is the rebuke a 6–3 Supreme Court delivered to the president Friday morning. As Justice Brett Kavanaugh’s dissent observed, Congress has already given presidents a great many tools to impose tariffs, and the Court neither suggested that those tools were unconstitutional nor limited what Trump could do with them. Like Joe Biden after the Court struck down his student-loan amnesty, Trump has sent his lawyers to comb through the statute books to get him, piecemeal, many of the objectives he has been seeking — this time, by complying with the law.

 

But he can’t keep imposing tariffs under the “emergency” powers granted by the International Emergency Economic Powers Act of 1977 (IEEPA). The Court, like the majority of the judges on the Federal Circuit, concluded that IEEPA’s vague, general references to a power to “regulate” trade through “licenses” does not create an emergency presidential tariff power — let alone one that extends to every product imported from every country on earth, with no maximum limit on the size of the tariffs and no endpoint to how long the “emergency” can last. An emergency that is permanent and worldwide is a power so unlimited, it is hard with a straight face to believe any Congress would grant it — least of all the 1977 post-Watergate Congress that wrote IEEPA with an eye toward limiting the powers claimed by the Nixon White House.

 

Presidents may well have broad emergency powers to impose tariffs and trade embargoes during wartime. Presidents such as Polk and Lincoln did so; the Court in 1875 upheld Abraham Lincoln’s assertions of such powers during the Civil War. But Trump’s own solicitor general conceded that the Trump tariffs at issue rested only on IEEPA, not on war powers. As Chief Justice John Roberts’s opinion acridly noted: “The United States, after all, is not at war with every nation in the world.” Nor should we want to be.

 

While the Court’s conservatives were equally divided in this case, we believe that the majority (which included two of Trump’s three appointees to the Court, Justices Neil Gorsuch and Amy Coney Barrett) had much the better of the argument that the extraordinary, limitless delegation of the most central power possessed by Congress needs to hang on language more specific than what IEEPA says. In so holding, the Court was faithful to the same principles it repeatedly cited to constrain Biden on student loans, the eviction moratorium, the workplace vaccine mandate, and carbon emission rules. That means the Court is doing its job — which is why progressives hate it. The right should not sing from that hymnal.

 

The president’s furious and intemperate response — effectively accusing the justices in the majority of being bought off by foreign powers and suggesting that Democrats might have a point in calls for Court-packing — was not only irresponsible, but also completely politically unhelpful to his own cause. It’s also not apt to win him more friends on a bench that still has many other cases on its docket regarding his powers and his initiatives.

 

In fact, the Court may have done Trump a favor. Tariffs have driven up costs without correspondingly helping boost American manufacturing or even cutting the trade deficit. Disappointment with the economy, and specifically with poor progress on the cost of living, has badly eroded Trump’s standing with the voters who put him in office to end runaway inflation. With nine months to go before the midterm elections, relief from the global and “liberation day” tariff regime could give some of those voters a rest — if Trump will take the opportunity to pursue less draconian tariffs.