"The ruling against Trump’s tariffs is a major victory for the constitutional separation of powers, rule of law, and millions of American consumers and businesses.
"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 authorisation. ...
"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 ...
"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 constraintsthat 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."~ co-litigant Ilya Somin on 'How the Supreme Court Spared America'
REUTERS: ''Embarrassment to their families': Trump denounces Supreme Court justices after tariffs ruling'
WASHINGTON, Feb 20 (Reuters) - President Donald Trump lashed out on Friday at the U.S. Supreme Court and the six justices who struck down his signature global tariffs - including two he appointed - in remarkably personal terms while hailing the three justices who backed him.
"Although previous presidents have sharply criticised Supreme Court rulings against them, Trump's lengthy tirade to reporters at the White House stood out for its contemptuous tone, as well as the personal nature of his scorn and praise...."
"Today’s ruling reinforces a basic constitutional principle: emergency powers are not a blank check for economic policymaking. The Court correctly recognized that tariffs function as taxes on Americans, and that authority belongs to Congress, not the executive acting alone under a perpetual state of emergency. Despite dire warnings, there was never going to be a financial crisis if these tariffs were struck down.
"Ending the IEEPA tariffs restores predictability and reduces the uncertainty that has weighed on investment and supply chains. Businesses and consumers now get a reprieve from a costly policy mistake. Far from leaving the United States defenceless, the decision strengthens the institutional credibility that matters most when real emergencies arise."~ Kyle Handley, Cato Adjunct Trade Scholar
"I rise today to address [Supreme Court Justice] Neil Gorsuch's concurrence.
"The dude stuck a big red hot poker into the nether regions of no fewer than SIX of his colleagues.
"For Kagan, Sotomayor, and Jackson (I’m paraphrasing, and tendentiously so, but it’s more fun): “You folks supported every cockamamie ‘emergency’ theory the Dems could come up. You gave the Biden administration clearly unconstitutional and unjustified powers during COVID, and you accepted a definition of ‘emergency’ so encompassing that the US has apparently been in an ‘emergency’ since before the Declaration of Independence. Now that a Republican is office, you have belatedly discovered that an declaration of an emergency is more plausible if there is actually some emergency. You people are clowns, and you should be embarrassed.” (Remember, these three are Justices that Gorsuch is JOINING, in his opinion; they are on his side!)
"For Alito, Kavanaugh, and Thomas (again, I’m not quoting, not even close): “You folks opposed very action the Biden administration tried to take. Sure, the Bidenites claimed excessive powers. But COVID was at least plausibly an emergency, with both an urgent timeline and potentially dangerous outcomes. Yet you still had this very restrictive doctrine you kept parroting, about how the President can’t do things. That meant that you were basically playing “Calvinball,” with made up rules for why Democrats can’t do things. And now you say none of those rules (some of which were admittedly dumb) don’t apply when a Republicanis in office? And when there is no conceivable justification for invoking an emergency? You people are clowns, and you should be embarrassed.” (In fairness to Gorsuch, Kavanaugh in particular wrote an opinion so bizarrely self-contradictory that anyone would have had this reaction privately. But to put it in your concurrence? Damn!)
"UPDATE: An afterthought: IEEPA was passed with a 'legislative veto.' Whatever else is true, the implied delegation was much less than Kavanaugh is claiming in his nonsensical screed."~ Michael Munger from his post 'Gorsuch! A concurrence for the ages'
"Today the Supreme Court did something simple and radical at the same time: it read and applied the Constitution. In Learning Resources, Inc. v. Trump, the Court held that the International Emergency Economic Powers Act (IEEPA) does not authorise a President to impose tariffs. Article I vests the taxing power—explicitly including duties and tariffs—in Congress alone. The Executive has no inherent peacetime authority to reach into “the pockets of the people.” If Congress wishes to delegate tariff authority, it must do so clearly and within limits, because that is the structure of our constitutional republic.
"This ruling is not about whether tariffs are good policy. It is about who has the lawful authority to impose them. The Court reaffirmed a basic principle: the power to tax belongs to the legislature, and it cannot be assumed, implied, or creatively inferred by the Executive. If we are to remain a government of laws rather than men, structural limits must bind even when they are inconvenient. Today, thankfully, the Court enforced that boundary."
~ Nicholas Provenzo
"The court’s decision is welcome news for American importers, the United States economy, and the rule of law, but there’s much more work to be done. Most immediately, the federal government must refund the tens of billions of dollars in customs duties that it illegally collected from American companies pursuant to an “IEEPA tariff authority” it never actually had. That refund process could be easy, but it appears more likely that more litigation and paperwork will be required – a particularly unfair burden for smaller importers that lack the resources to litigate tariff refund claims, yet never did anything wrong.
"Even without IEEPA, moreover, other U.S. laws and the Trump administration’s repeated promises all but ensure that much higher tariffs will remain the norm, damaging the economy and foreign relations in the process. Implementing new tariff protection will take a little longer than it did in 2025 and, perhaps, will be a little more predictable. Overall, however, the tariff beatings will continue until Congress reclaims some of its constitutional authority over U.S. trade policy and checks the administration’s worst tariff impulses."~ Scott Lincicome, Cato Vice President of General Economics and Cato’s Herbert A. Stiefel Center for Trade Policy Studies
.....aaaaand,
"Totalitarian and authoritarian leaders seem to always presume that they should have and try to assert unlimited power, to do what they want, when they want, as they want, even when guided by any emotional whim that crosses their mind. And lash out at anything and anyone who presumes to say otherwise."
"Trump asserted that he could impose tariffs when he wanted, on any country he wanted, and to any extent he wanted. And could do so guided by any changing whim when some foreign leader did or said anything he did not like and was 'offended' by. And when the Supreme Court said 'No!' And took his power to do so away, he lashed out at them in rude and crude ways in response. And said he would try to keep doing it in different ways."
... aaaaaaaand, "it took less than 24 hours and Mad King Donald directly defied the Supreme Court."
"[Fri]day's ruling held that IEEPA does not authorise ANY tariff power. It was explicit in doing so and rebuked Trump's previous exercises.
"Late last night, Trump issued a new executive order reinstating the suspension of the de minimis tariff exemption on mail order packages. The new order reimposes these tariffs by using IEEPA in the face of the explicit direction of the Supreme Court.
"This is grounds for impeachment."
CATO: 'The Supreme Court Got It Right on IEEPA—But Don’t Pop the Champagne Yet'
"But the end of the IEEPA tariffs does not mean an end to unilateral trade policy. The administration has already been eyeing other, largely overlooked statutes that could produce a similar result.Section 122
Faced with a possible Supreme Court defeat over IEEPA, administration officials have been readying alternative authorities under which to impose tariffs. One such statute is Section 122 of the Trade Act of 1974. The provision empowers the president to address “large and serious” balance-of-payments deficits through import surcharges of up to 15 percent, import quotas, or some combination of the two. That surely holds considerable appeal for a president who has consistently (and mistakenly) railed against the alleged dangers of US trade deficits.
As Stan Veuger of the American Enterprise Institute and I explained in December in Foreign Policy, the administration could replicate most of the IEEPA tariff structure through Section 122 in short order. Countries currently facing rates above 15 percent would see some reduction, but for every other country, the hit would be nearly identical. And crucially, Section 122 doesn’t require the lengthy investigations that other trade statutes demand. The president could act fast.
But there’s a catch: Section 122 tariffs expire after 150 days unless Congress votes to extend them. How much of a constraint this is, however, remains to be seen. If Congress declines to act, the administration could, at least in theory, allow the tariffs to lapse, declare a new balance-of-payments emergency, and restart the clock. The maneuver would raise serious separation-of-powers concerns, but nothing in the statute clearly forbids it.
With the statute never previously invoked, there’s no judicial precedent clarifying its limits.
Section 338
There’s also Section 338 of the Tariff Act of 1930 (the infamous Smoot-Hawley Act) that, like Section 122, has never been deployed. It authorizes the president to impose tariffs of up to 50 percent on imports from any country that “discriminates” against US commerce as compared to other nations.
The statute is remarkably short and vague. It assigns a role to the US International Trade Commission (USITC), which has a duty to “ascertain and at all times to be informed” whether discrimination is occurring and to “bring the matter to the attention of the President, together with recommendations.”
But whether this functions as a procedural prerequisite or merely an advisory channel is unclear. The statute separately authorizes the president to impose tariffs “whenever he shall find as a fact” that discrimination exists. Does that language empower the president to act unilaterally, or must he await Commission findings? The text doesn’t say.
The Congressional Research Service has suggested that Section 338 falls into a category of tariff authorities that “do not contain” requirements for a federal agency to “conduct an investigation and make certain findings before tariffs may be imposed.” But this interpretation has never been tested by any administration or any court.
And what counts as discrimination in the first place? The law doesn’t say with any precision. Proving discrimination could be challenging when targeting World Trade Organization members bound by most-favored-nation requirements. Or would it? The administration could argue that any country maintaining tariffs on American goods—or any country with trade practices the president dislikes—is “discriminating” against US commerce.
The United States threatened to invoke Section 338 several times during the 1950s to advance foreign policy goals, but never followed through. The statute hasn’t been meaningfully tested in modern courts, which means its boundaries remain undefined. Would courts defer to an aggressive interpretation of the president’s authority? Would they require USITC involvement? No one knows. For an administration intent on maximizing its discretion, that ambiguity could be a feature, not a bug.
The Underlying Problem
Unfettered use of Sections 122 and 338—along with better-known statutes like Sections 301 and 232—could essentially recreate the IEEPA predicament. In practice, this means the president can continue reshaping tax policy and the business environment on a whim, redistributing hundreds of billions of dollars and imposing pervasive uncertainty, without express congressional authorization.
The Court did important work by reining in the misuse of IEEPA. But judicial intervention can only go so far. Congress spent decades handing off its constitutional trade authority to the executive branch, and these delegations remain largely intact. Until lawmakers reclaim some of that authority and add serious procedural safeguards, the risk of arbitrary tariffs will continue.
The Court did its job. Now Congress needs to do its own.
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