On the question of President Trump’s emergency tariffs, the Supreme Court has spoken. In the Court’s view, the International Emergency Economic Powers Act (IEEPA) does not authorize the president to impose tariffs during a declared emergency, namely, the massive trade deficits that threaten our economic security.
But the Court’s decision in Learning Resources, Inc. v. Trump was highly fractured. Only three justices—Kagan, Sotomayor, and Jackson—held that the law, under normal principles of statutory construction, does not give the president authority to impose tariffs. Justice Kavanaugh’s dissent, joined by Justices Thomas and Alito, quite persuasively demonstrates why that is not the case. As Justice Thomas noted in his separate dissent, the power to “regulate…importation” has throughout American history “been understood to include the authority to impose duties on imports.”
The other three justices who formed the majority holding—Chief Justice Roberts and Justices Gorsuch and Barrett—resorted to the major questions doctrine. This principle of statutory interpretation holds that Congress must speak with super clarity on issues of “economic and political significance” for the Court to approve a delegation to the executive. The turn to the major questions doctrine implies that the statute, under normal principles of statutory construction, authorizes the president’s action, a point that Justice Gorsuch explicitly conceded in his concurring opinion.
