Tariffs, text and the Constitution: The Supreme Court tells Trump to call Congress

In our current legal and political climate, a rebuke of the Trump administration by the Supreme Court is rare and often limited. With its rulings today in the Tariff cases, the Supreme Court decided to break from their mold and ruled 6-3 against the administration's use of IEEPA to broadly lay tariffs on any country that the President wants to.

Two passages in today's majority opinion caught my eye. "Based on two words separated by 16 others in ... IEEPA," Roberts writes, "'regulate' and 'importation'--the President asserts the independent power to impose tariffs on imports from any country, of any product, at any rate, for any amount of time. Those words cannot bear such weight." The Court also wrote the following: "The President asserts the extraordinary power to unilaterally impose tariffs of unlimited amount, duration, and scope," Roberts wrote. "In light of the breadth, history, and constitutional context of that asserted authority, he must identify clear congressional authorization to exercise it."

So, at first glance, was this an opinion about tariffs or more broadly presidential power? I would assert the latter. Throughout this debate no one has ever said that the United States government does not have the authority to issue tariffs in furtherance of specific policy goals. As I argued before, we have had tariffs in this country, and historically they have not delivered favorable results. The founders in their wisdom clearly gave the power to Congress to pass tariffs, and a president unilaterally asserting they have the authority from a dubious law that does not even mention tariffs, has been on the books for almost 50 years, and heretofore had never been used to assess tariffs was never going to pass muster.

Three Republican appointees (Roberts, Gorsuch and Barrett) joined with the court's three Democratic appointees (Sotomayor, Jackson and Kagan) to hand a rebuke to President Trump, which he had heralded was his signature economic achievement. The opinion was a road map of sorts with a simple message, go to Congress and get specific authority to pass tariffs if that is what you want to do. In that regard, as I also asserted, Chief Justice Roberts relied on the Major Questions Doctrine, which holds that an executive must point to clear and unambiguous congressional language and authority to further a policy. Absent that, it is illegal. Today's decision was significant because it was the first time this new doctrine had been used against a Republican president. Previously it had stopped President Biden on EPA regulation and student loans, to name a few.

The tariffs debate is interesting to many Americans but make no mistake about it: the consequences are profound. Reports indicate that our government collected over $135 billion in tariffs last year alone. Has that amount caused a rapid increase in inflation? So far, the jury is still out on that question. However, for small businesses importing products from other countries where labor costs are vastly cheaper, this policy wreaked havoc on business operations. These companies rely upon stable policies and 5-year plans. Those plans in turn dictate investment, retrenchment or expansion of their business. When policy shifts from day to day, it becomes enormously difficult for a business to make consequential decisions.

The administration has pursued a far less coherent policy, with tariffs issued, rescinded and in some cases increased in a matter of days. A move that prompted  the Ontario provincial government to air an ad during the World Series that was critical of the tariff policies impacting Canada. The ad in question quoted President Reagan's 1980s steadfast opposition to tariffs, when it was a Democratic Congress that threatened tariffs.

It is worth noting that one argument made by one of the dissenters, specifically Justice Kavanaugh, was valid. The opinion was silent on whether the Government owes the money collected back in the form of refunds to companies that have been paying what are now established illegal tariffs. In the words of Justice Kavanaugh, this will create a "mess." It will also create full-time employment for lawyers, some of whom are prominent in Los Angeles, in a field of chasing down said money for their clients. Lastly, it will increase the U.S. Federal Deficit, which stands at $39 trillion and continues to grow out of control.

When these issues are fully considered, it becomes clear why the Supreme Court--which is not a policy-making body--should not be tasked with answering every question, nor should any single branch of government. Congress is, of course, the people's House, and the districts its members represent inevitably shape their views on whether tariffs are good policy. Some countries retaliated with their own tariffs against farmers, thus rural Republicans from Iowa and Kansas appeared willing to break from their President. If you live in a consumption heavy district, constituents tend to embrace cheap goods and oppose tariffs. Even so, it is undeniable that midwestern manufacturing hubs have been hollowed out and over the decades millions of jobs have been shipped overseas. Trump's unprecedented victories in the heartland of America in 2016 and 2024 are attributed to his relentless support to right that wrong.

When all members of Congress weigh in to represent their constituents' best interests, it ensures a true, balanced debate rather than a one-sided push. Yet, with such a razor-thin House majority, I suspect the administration cannot muster 218 Republicans in an election year to take a dive off the deep end and support tariffs. Still, vigorous debate is healthy for the nation and the Constitution, and in this case, the Supreme Court clearly got right.