{"id":7072,"date":"2025-11-03T16:07:32","date_gmt":"2025-11-03T16:07:32","guid":{"rendered":"https:\/\/wpinitiate.com\/echo-test\/demo973e36f5\/2025\/11\/03\/president-trumps-tariffs-v-the-supreme-courts-duties-scotusblog\/"},"modified":"2025-11-03T16:07:32","modified_gmt":"2025-11-03T16:07:32","slug":"president-trumps-tariffs-v-the-supreme-courts-duties-scotusblog","status":"publish","type":"post","link":"https:\/\/wpinitiate.com\/echo-test\/demo973e36f5\/2025\/11\/03\/president-trumps-tariffs-v-the-supreme-courts-duties-scotusblog\/","title":{"rendered":"President Trump\u2019s tariffs v. the Supreme Court\u2019s duties – SCOTUSblog"},"content":{"rendered":"
\n

Major Questions<\/a> is a recurring series by Adam White<\/a>, which analyzes the court\u2019s approach to administrative law, agencies, and the lower courts.<\/em><\/p>\n

When President Donald Trump announced a new era of tariffs in his \u201cLiberation Day<\/a>\u201d event, he singlehandedly created a new era of American economic policy and temporarily crashed global markets. The president himself\u00a0declared<\/a>\u00a0it \u201cone of the most important days, in my opinion, in American history.\u201d\u00a0<\/p>\n

Since then,\u00a0markets have recovered<\/a>, and we\u2019ve grown accustomed \u2013 maybe numb \u2013 to the spectacle of a president constantly making, unmaking, and remaking tariffs in response to everything from\u00a0Chinese negotiations<\/a>\u00a0to\u00a0Canadian TV commercials<\/a>.\u00a0<\/p>\n

But when those tariffs reach the Supreme Court on Nov. 5 in\u00a0Learning Resources v. Trump<\/em><\/a>, these controversies will be just background for a very specific legal question: Does the president\u2019s statutory power to \u201cregulate\u201d imports include the power to\u00a0tax<\/em>\u00a0them?<\/p>\n

In the\u00a0International Emergency Economic Powers Act<\/a>\u00a0of 1977 \u2013 or IEEPA for short \u2013 Congress gave presidents sweeping powers to deal with any \u201cunusual and extraordinary threat<\/a>\u00a0with respect to which a national emergency has been declared.\u201d Specifically, when the president declares such an emergency, he then has the power to (among other things) \u201cinvestigate,\u201d \u201cregulate,\u201d or \u201cprohibit\u201d imports. The word \u201ctariff\u201d or \u201ctax\u201d does not appear in the statute, but the administration\u00a0argues<\/a>\u00a0that the president\u2019s power to \u201cregulate\u201d such trade includes the power to impose tariffs on it.<\/p>\n

One might be tempted, at first glance, to simply shrug off the administration\u2019s argument that a tariff is a \u201cregulat[ion].\u201d After all, the Constitution plainly distinguishes between the power to \u201cregulate<\/a>\u201d international trade and the power to impose \u201c[t]axes, [d]uties, [i]mposts and [e]xcises<\/a>\u201d on it.<\/p>\n

But the case is somewhat more complicated than that. First, as\u00a0law professor Jack Goldsmith has emphasized<\/a>,\u00a0a federal court<\/a>\u00a0held 50 years ago that an earlier statute\u2019s power to \u201cregulate\u201d trade supported President Richard Nixon\u2019s own tariffs. (The court was the U.S. Court of Customs and Patent Appeals, which was abolished in 1982 and succeeded by the U.S. Court of Appeals for the Federal Circuit; the statute was the Trading with the Enemy Act of 1917<\/a>, which was succeeded in 1977 by IEEPA.)\u00a0<\/p>\n

And second, as\u00a0law professor Chad Squitieri has documented<\/a>, many early constitutional statesmen \u2013 including James Madison and John Marshall \u2013 spoke generally of tariffs (\u201cduties\u201d) as a means to \u201cregulate\u201d commerce. In the 1824 case of\u00a0Gibbons v. Ogden<\/em><\/a>, for example, then-Chief Justice John Marshall alluded to \u201cthe right to regulate commerce, even by the imposition of duties.\u201d To be sure, Marshall emphasized that the Constitution itself distinguishes the two powers: \u201cthe power to regulate commerce\u201d is \u201centirely distinct from the right to levy taxes and imposts,\u201d he wrote. But Squitieri\u2019s point, illustrated by the first Marshall quote and many others, is that it is at least possible for other legal documents, including statutes, to treat \u201cregulate\u201d and \u201ctariff\u201d as synonymous.<\/p>\n

And finally, as\u00a0law professor Jonathan Adler has noted<\/a>, if IEEPA\u2019s meaning is unclear, then perhaps the court will give the president a measure of deference, since courts often defer to the executive on questions of foreign policy and national security, of which tariffs are frequently a tool.<\/p>\n

Without trying to exhaust all of the arguments on both sides of the issue, let me offer a few points worth watching for in Wednesday\u2019s oral arguments. And, as it happens, Adler\u2019s point is a good place to start.<\/p>\n

Is this a case about diplomatic powers or Congress\u2019 \u201cpower of the purse\u201d?\u00a0<\/strong><\/p>\n

When it comes to diplomatic and national security powers, the court often defers to the president \u201cas the sole organ of the federal government in the field of international relations<\/a>.\u201d If justices see the Trump tariffs as mainly a matter of foreign policy, and if they see IEEPA\u2019s \u201cregulate\u201d provision as ambiguous, then perhaps they will give substantial deference to the president\u2019s interpretation.<\/p>\n

Then again, another way to see this case would be, first and foremost, as a case about Congress\u2019 \u201cpower of the purse<\/a>.\u201d As we have seen in recent cases involving the Consumer Financial Protection Bureau and the Federal Communications Commission, Congress can delegate substantial fiscal power to the executive branch. (In\u00a0CFPB v. Community Financial Services\u00a0Association<\/a><\/em>, it was perpetual funding from the Federal Reserve to the CFPB; in\u00a0FCC v. Consumers\u2019 Research<\/em><\/a>, it was the power to impose fees on the telecommunications services industry.) Yet Trump\u2019s highly publicized approach to tariffs may give the justices pause. The sheer enormity of many of these new taxes, the erratic changes he makes to them, their immediate effects on U.S. companies and consumers, and his\u00a0repeated identification of tariffs as revenue for domestic policy programs<\/a>\u00a0make this at least as much a matter of domestic policy as it is a matter of foreign policy.\u00a0<\/p>\n

Perhaps the concerns that Justice Neil Gorsuch, joined by Justices Clarence Thomas and Samuel Alito, pressed in his\u00a0Consumers\u2019 Research\u00a0<\/em>dissent will be all the more salient for these tariffs: \u201cTaxation ranks among the government\u2019s greatest powers. Indeed, it is arguably the federal government\u2019s \u2018most important . . . authorit[y],\u2019\u201d he wrote (quoting Alexander Hamilton<\/a>), which is why \u201call legislation \u2018for raising Revenue\u2019 must \u2018originate in the House of Representatives[.]\u2019\u201d Congress already has ceded enormous power to presidents, they warned, and \u201cby approving a delegation of Congress\u2019s taxing power unprecedented in this Court\u2019s history, we risk making matters worse yet.\u201d\u00a0<\/p>\n

In\u00a0Federalist No. 58<\/a>, Madison wrote that Congress\u2019 \u201cpower of the purse\u201d is our Constitution\u2019s \u201cpowerful instrument\u201d for constraining \u201cthe overgrown prerogatives of the other branches of the government.\u201d Today, it is hard to imagine a more \u201covergrown\u201d prerogative than Trump\u2019s own prerogative to influence U.S. and foreign companies through tariffs. Perhaps in this case the court will therefore focus not just on the president\u2019s diplomatic powers, but also on Congress\u2019 power of the purse \u2013 and the constitutional relationships between the two. If so, then they will likely be much less deferential to Trump\u2019s interpretation of the law.<\/p>\n

Do we read IEEPA in light of an old lower-court case\u00a0\u2013\u00a0<\/em>or in light of other statutes?<\/strong><\/p>\n

As noted above, the late U.S. Court of Customs and Patent Appeals held in the 1975 case of\u00a0United States. v. Yoshida International<\/em><\/a>\u00a0<\/em>that the president\u2019s power to regulate trade, under the late Trading with the Enemy Act, included a power to impose tariffs. At least one line in\u00a0IEEPA\u2019s own legislative history<\/a>\u00a0refers to the\u00a0Yoshida<\/em>\u00a0case, and the Supreme Court has suggested that IEEPA gives presidents \u201cessentially the same authorities<\/a>\u201d as TWEA did.<\/p>\n

Yet those might be two extremely thin reeds for supporting Trump\u2019s broad assertions of power \u2013 a single line in a House Report that mentions\u00a0Yoshida<\/em>\u00a0but stops far short of wholly endorsing its treatment of tariffs as a proper way to \u201cregulate\u201d imports; and a single line in a Supreme Court case that had nothing to do with tariffs, let alone tariffs on a scale approaching Trump\u2019s never-ending \u201cLiberation Day.\u201d\u00a0<\/p>\n

Perhaps instead the court will see relevance in the other statutes that\u00a0explicitly<\/em>\u00a0give presidents the power to impose tariffs \u2013 such as\u00a0Section 301 of the Trade Act of 1974<\/a>, which empowers the president to \u201cimpose duties or other import restrictions\u201d in certain circumstances, pursuant to major procedural requirements. Or, for that matter,\u00a0Section 122<\/a>\u00a0of the 1974 Act, which empowers the president to\u00a0<\/ins>impose temporary \u201cduties\u201d on imports (but only up to 15 percent proportionately) \u201cto deal with large and serious United States balance-of-payments deficits.\u201d Congress clearly knows how to delegate tariff powers to a president when it wants to, and it did so repeatedly, just a few years before IEEPA. The absence of an explicit grant of tariff power in IEEPA, by contrast, should counsel against inferring such a power.<\/p>\n

Does Trump\u2019s \u201cemergency\u201d declaration matter?<\/strong><\/p>\n

I think it does, but not in the way that many might assume. Many of the tariffs\u2019 critics dispute the factual notion that this is an \u201cemergency\u201d at all, and thus urge the court to second-guess Trump\u2019s\u00a0declaration<\/a>\u00a0that trade deficits now qualify as a national emergency. Could longstanding trade deficits actually qualify (per IEEPA) as an \u201cunusual and extraordinary threat<\/a>\u201d to national security? Should the court review Trump\u2019s factual judgment here?<\/p>\n

The administration takes this argument seriously enough to respond,\u00a0arguing<\/a>\u00a0that the president\u2019s finding of an emergency is completely unreviewable: \u201cthe President\u2019s determinations in this area are not amenable to judicial review,\u201d because judges \u201clack the institutional competence to determine when foreign affairs pose an unusual and extraordinary threat that requires an emergency response.\u201d<\/p>\n

The DOJ may well be right. Perhaps the courts can\u2019t review the fact of a presidentially declared emergency. But if anything, that argument may cut\u00a0against<\/em>\u00a0the administration\u2019s interpretation of IEEPA\u2019s substantive power to \u201cregulate.\u201d\u00a0<\/p>\n

That is: If a president\u2019s emergency declaration is actually unreviewable, then the substantive stakes of such a declaration are even more enormous. The more that courts defer to the president\u2019s\u00a0factual<\/em>\u00a0finding, the more that courts may need to be skeptical of a president\u2019s sweeping claims of power that would be unlocked by his unilateral declaration.<\/p>\n

And that leads me to another question:<\/p>\n

Do Trump\u2019s tariffs present a \u201cmajor question\u201d?\u00a0<\/strong><\/p>\n

In recent cases involving policy initiatives by Democratic presidents \u2013 such as the\u00a0EPA\u2019s Clean Power Plan<\/a>,\u00a0OSHA\u2019s COVID-19 vaccine mandate<\/a>, the\u00a0Education Department\u2019s student loan waivers<\/a>, and the\u00a0CDC\u2019s COVID-19 eviction moratorium<\/a>\u00a0\u2013 the Supreme Court has taken a very skeptical view of an administration\u2019s sudden discovery of unprecedented powers in an old statute\u2019s ambiguities. This is the \u201cmajor questions doctrine,\u201d a rule of judicial skepticism that the court summarized in\u00a0West Virginia v. EPA<\/em>: \u201c\u2018In extraordinary cases \u2026 there may be reason to hesitate\u2019 before accepting a reading of a statute that would, under more \u2018ordinary\u2019 circumstances, be upheld. Or, as we put it more recently, we \u2018typically greet assertions of extravagant statutory power over the national economy\u2019 with \u2018skepticism.\u2019\u201d\u00a0<\/p>\n

Do Trump\u2019s sweeping assertions of enormous power over global trade \u2013 a power to unilaterally make, unmake, and remake tariffs on little more than whims, based on a completely unreviewable presidential declaration of emergency \u2013 constitute a \u201cmajor question\u201d?<\/p>\n

To ask the question practically answers it. Still, some make reasonable arguments that the technical requirements of the major questions doctrine do not apply to these tariffs.\u00a0<\/p>\n

The Trump administration, for example,\u00a0argues<\/a>\u00a0that the major questions doctrine applies only to agencies<\/em>\u2019 interpretations of statutes, not to the\u00a0president\u2019s<\/em>. That is a strange argument to be made by an administration that contends elsewhere that\u00a0all\u00a0<\/em>regulatory agencies, including those involved in the court\u2019s prior major questions doctrine cases, are subject to the president\u2019s control \u2013 a doctrine known as the \u201cunitary executive theory\u201d \u2013 and agencies\u00a0cannot make legal interpretations different from the president\u2019s<\/a>.\u00a0<\/p>\n

Then again, the administration\u2019s lawyers are correct that the previous cases involved\u00a0agency<\/em>\u00a0rules, not the president\u2019s own orders, and thus the present case on IEEPA tariffs would be a novel application of the major questions doctrine. Nevertheless, the major questions doctrine is a doctrine about interpreting statutes, not about reviewing agencies\u00a0per se<\/em>. I think the administration is putting far too much weight on the nominal distinction between a president and his agencies (which it certainly doesn\u2019t do in other contexts).<\/p>\n

The Justice Department\u2019s brief also argues that the major questions doctrine \u201chas not been applied by th[e] Court in the national security or foreign policy contexts, because the canon does not reflect ordinary congressional intent in those areas.\u201d Here the administration is quoting Justice Brett Kavanaugh\u2019s concurrence in\u00a0FCC v. Consumers\u2019 Research<\/em>, and the point is again a reasonable one. (Curtis Bradley and Goldsmith have\u00a0written at length<\/a>\u00a0on the major questions doctrine\u2019s ill fit for foreign policy and national security questions, where the president has \u201cindependent powers.\u201d)<\/p>\n

But this argument again begs the basic framing question: Is this simply a \u201cforeign policy\u201d or \u201cnational security\u201d case, or is it also a case about Congress\u2019 own power of the purse? Presidents have significant, independent constitutional powers in foreign policy and national security, as Justice Robert Jackson emphasized in\u00a0the seminal\u00a0steel seizure case<\/a>; that much has long been clear. But equally clear is the fact that a president\u2019s inherent constitutional powers do\u00a0not<\/em>\u00a0include a power to tax. Such a power can only come from Congress. And none of the president\u2019s genuinely independent powers in international affairs come close to the broad power to raise hundreds of billions of dollars in presidential revenues.<\/p>\n

Kavanaugh\u2019s question in\u00a0FCC v. Consumers\u2019 Research<\/em>, then, is a good one: For these tariffs, should the court presume that Congress tends to delegate sweeping powers to presidents, or should the court guard against the risk that a president would take legislative powers that Congress never actually gave to him?<\/p>\n

Finally, some may argue that the major questions doctrine doesn\u2019t apply here at all, because imposing tariffs under IEEPA is not \u201cnovel\u201d \u2013 after all, President Richard Nixon once did it. (Hence the aforementioned Yoshida<\/em><\/a>\u00a0case.)\u00a0<\/p>\n

Indeed, the court\u2019s recent major questions cases often speak in terms of a program\u2019s \u201cnovelty.\u201d But Trump\u2019s tariffs so far outpace Nixon\u2019s that it is not hard to call them \u201cnovel.\u201d If anything, the difference in magnitude calls to mind the court\u2019s discussion of novelty in one of the recent major questions cases: Biden v. Nebraska<\/em><\/a>, on the Biden administration\u2019s student loan waiver program.<\/p>\n

There, the court acknowledged that the Education Department had waived loans before. But, the court noted, \u201cpast waivers and modifications issued under the Act have been extremely modest and narrow in scope,\u201d and the agency had \u201cnever previously claimed powers of this magnitude under\u201d the relevant law.\u00a0<\/p>\n

The student loan case quoted another recent major questions case,\u00a0on the CDC\u2019s COVID-19 eviction moratorium<\/a>: \u201cThis claim of expansive authority under [the Public Health Service Act] is unprecedented. Since that provision\u2019s enactment in 1944, no regulation premised on it has even begun to approach the size or scope of the eviction moratorium.\u201d So, too, with Trump\u2019s tariffs \u2013 by his own boasting, and plain to see by anyone watching the last year play out, the \u201cLiberation Day\u201d tariffs are an unprecedented application of IEEPA. If singlehanded control of international trade is not a major question, then what is?<\/p>\n

In the end, however, arguments over the technical application of a major questions doctrine may simply be a red herring. Whether or not the court explicitly invokes the major questions doctrine by name, or if it simply undertakes its own best reading of IEEPA\u2019s use of the term \u201cregulate\u201d with a measure of skepticism toward Trump\u2019s unprecedented claims of power, the sheer magnitude of power claimed by the president, and its practical effects, should give it pause.<\/p>\n

If the court rules against the Trump administration, then what will change going forward \u2013 or looking backward?\u00a0<\/strong><\/p>\n

If the court rejects the Trump administration\u2019s interpretation of IEEPA \u2013 which I think it likely will, for all the reasons sketched out above \u2013 then the specific legal question will be settled going forward. The Trump administration will not be able to invoke IEEPA as a basis for future tariffs. But beyond that, much would still be left undecided.<\/p>\n

First, looking backward to tariffs that already have been paid, a ruling against the Trump administration would\u00a0not<\/em> necessarily answer the question of whether the nation must pay them back. In fact, I find it unlikely that the court would reach such a question, at least in this round of litigation.\u00a0<\/p>\n

Rather, the refund issue strikes me as the kind of factual and legal question that the court would send back to the lower courts. Perhaps the U.S. Court of Federal Claims (which handles this kind of litigation) will have to decide in the first instance whether refunds must be paid \u2013 and if so, how parties should go about seeking repayment. U.S. companies who already paid tariffs will need to play out the entire legal process in the Court of Federal Claims and subsequent appeals; some or even many of them may make a prudential judgment not to litigate their already sunk costs. As for foreign companies: Perhaps further negotiations between the White House and foreign countries will settle the question country by country, on a \u201cvoluntary\u201d basis, with the administration pushing other countries to effectively pay refunds to their own companies. In any event, the refund question and its future contingencies go well beyond the questions currently before the court; as Chief Justice John Roberts once\u00a0noted<\/a>, \u201cIf it is not necessary to decide more to dispose of a case, then it is necessary\u00a0not<\/em>\u00a0to decide more.\u201d<\/p>\n

And second, looking forward, a ruling against the Trump administration may have less of an effect than it seems. Even if the administration cannot invoke IEEPA for future tariffs, it could try to rely on the (albeit more limited) Section 301 tariff statute and other laws. Or, more bluntly, Trump could continue tariff negotiations without explicit reference to any statute, and frame the countries\u2019 agreements as \u201cvoluntary\u201d payments to the United States.<\/p>\n

This might seem disappointing, but then again it might be reassuring.\u00a0Learning Resources v. Trump<\/em>\u00a0is not necessarily a cataclysmic fight over Trump\u2019s tariffs writ large. Rather, it is a case about one statute\u2019s words. The court\u2019s duty is to say what the law is in this particular case. The rest can be left to politics, and to future cases.<\/p>\n

\n

Cases: Learning Resources, Inc. v. Trump (Tariffs)<\/a><\/p>\n

Recommended Citation:<\/strong> \t\t\t\t\t\t\t\tAdam White, \t\t\t\t\t\t\t\tPresident Trump\u2019s tariffs v. the Supreme Court\u2019s duties<\/em>, \t\t\t\t\t\t\t\tSCOTUSblog<\/span> (Nov. 3, 2025, 10:00 AM), \t\t\t\t\t\t\t\thttps:\/\/www.scotusblog.com\/2025\/11\/president-trumps-tariffs-v-the-supreme-courts-duties\/\t\t\t\t\t\t\t<\/p>\n<\/p><\/div>\n<\/p><\/div>\n","protected":false},"excerpt":{"rendered":"

Major Questions is a recurring series by Adam White, which analyzes the court\u2019s approach to administrative law, agencies, and the lower courts. When President Donald Trump announced a new era of tariffs in his \u201cLiberation Day\u201d event, he singlehandedly created a new era of American economic policy and temporarily crashed global markets. The president himself\u00a0declared\u00a0it […]<\/p>\n","protected":false},"author":1,"featured_media":7073,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"class_list":["post-7072","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-uncategorized"],"_links":{"self":[{"href":"https:\/\/wpinitiate.com\/echo-test\/demo973e36f5\/wp-json\/wp\/v2\/posts\/7072","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/wpinitiate.com\/echo-test\/demo973e36f5\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/wpinitiate.com\/echo-test\/demo973e36f5\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/wpinitiate.com\/echo-test\/demo973e36f5\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/wpinitiate.com\/echo-test\/demo973e36f5\/wp-json\/wp\/v2\/comments?post=7072"}],"version-history":[{"count":0,"href":"https:\/\/wpinitiate.com\/echo-test\/demo973e36f5\/wp-json\/wp\/v2\/posts\/7072\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/wpinitiate.com\/echo-test\/demo973e36f5\/wp-json\/wp\/v2\/media\/7073"}],"wp:attachment":[{"href":"https:\/\/wpinitiate.com\/echo-test\/demo973e36f5\/wp-json\/wp\/v2\/media?parent=7072"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/wpinitiate.com\/echo-test\/demo973e36f5\/wp-json\/wp\/v2\/categories?post=7072"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/wpinitiate.com\/echo-test\/demo973e36f5\/wp-json\/wp\/v2\/tags?post=7072"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}