The idea that the U.S. Supreme Court has been a rubber stamp for Donald Trump during his nearly five years as president is treated as a given by many on the left. It’s not true. Yes, there have been alarming rulings, especially one in September that allowed ethnicity to be a factor in determining whether federal agents can ask people about their citizenship status. But on issues ranging from deportation policies to the Deferred Action for Childhood Arrivals program to census citizenship questions to presidential immunity to federal administrative power, high court majorities have rejected arguments from the president’s lawyers.
Now a case can be made that the stage is set for perhaps the most important SCOTUS rebuke yet. On Wednesday, justices will hear oral arguments in the consolidated cases challenging the legality of Trump’s unprecedented imposition of tariffs earlier this year. At issue is Trump’s assertion that the International Emergency Economic Powers Act gives the president authority to impose broad import tariffs on national security grounds without additional approval from Congress.
Nearly all legal scholars across the ideological spectrum say that this is an executive branch power grab that distorts the plain meaning of the emergency powers statute. But the reasons to expect at least seven members of the court to reject the president’s position go beyond that. That’s because in two high-profile cases, Trump himself has provided direct evidence of the absurdity of his claim that tariff decisions are driven by U.S. national security needs.
The first came on July 9 with Brazil, which has a trade deficit with the U.S. Trump made it clear that he was targeting the nation with a 50% tariff on all its goods to punish its leaders for their prosecution of former President Jair Bolsonaro for attempting to remain in power in 2022 after losing his re-election bid.
The second came on Oct. 25. Irked by a TV commercial sponsored by the Ontario provincial government showing clips of President Reagan’s 1987 speech denouncing tariffs as counterproductive and job-destroying, Trump imposed an additional 10% tariff on Canadian goods.
Both decisions reflect not national security but Trump’s insecurity — about the parallels he has with Bolsonaro and about the potency of a dead but popular president’s critique of his trade policies. It’s hard to believe any of the four Republican-appointed justices who have generally upheld constitutional balance-of-powers provisions — John Roberts, Brett Kavanaugh, Neil Gorsuch and Amy Coney Barrett — will ignore Trump’s self-owns.
And they can work with Democratic-appointed justices to do so in a way that minimizes economic disruption, by having the tariff ruling take effect at a future date and not be retroactive. This approach would prevent a flood of refund claims and limit upheaval in global trade while still affirming constitutional and statutory limits on executive power. In 1982, the Supreme Court took such an approach when it found key parts of a federal bankruptcy law to be unconstitutional. But the court specified this finding was not retroactive and delayed enforcement of its decision for more than three months to give Congress time to amend bankruptcy laws.
Especially with the recent emergence of four Republican senators opposed to Trump’s tariffs — likely dooming any chance they could later win congressional approval — such a court ruling would infuriate the president, possibly leading him to lash out. But such behavior won’t seem nearly as menacing after a Supreme Court ruling that makes it abundantly clear to Donald Trump that he, like all the presidents before him, is not above the law.