This case demonstrates the best of the Roberts Court\u2014but also its profound shortcomings. On the \u201cbest\u201d side of the ledger, the Court produced an excellent set of opinions on a narrow question of statutory interpretation. Yet the Court also failed to grapple with the stark separation-of-powers problem at the heart of the case.<\/p>\n
The background is familiar to most readers. Coming into his second term, President Trump viewed<\/a> tariffs as<\/a> \u201cthe most beautiful word to me in the dictionary\u201d and a solution to many of America\u2019s challenges. During his first term, he had imposed<\/a> numerous tariffs by using powers delegated in various trade-specific statutes. In his second term, however, he wanted a quick and unconstrained path to unilaterally imposing dramatic tariffs on a global scale. He claimed<\/a> to find this power in the International Economic Emergency Powers Act<\/a> (IEEPA). IEEPA gives<\/a> the President sweeping powers to \u201cdeal with any unusual and extraordinary\u201d foreign \u201cthreat \u2026 to the national security, foreign policy, or economy of the United States,\u201d including<\/a> the power to \u201cregulate\u201d the \u201cimportation\u201d of \u201cproperty.\u201d President Trump, therefore, announced<\/a> that the U.S. trade deficit in goods was an unusual and extraordinary threat to the United States. And voil\u00e0! He thought<\/a> he could now impose vast tariffs on goods imported from countries around the globe. Importers quickly challenged<\/a> these tariffs as unlawful; the lower courts agreed<\/a>; and the Supreme Court took up the case.<\/p>\n The Court framed<\/a> the case as an either\/or question about a textual phrase: Does IEEPA\u2019s delegation of power to the President to \u201cregulate\u201d the \u201cimportation\u201d of \u201cproperty\u201d include the power to impose tariffs?<\/p>\n This simple framing allowed the justices to approach the case as about clean-cut, binary textual analysis. And, within this approach, they produced a set of opinions that are impressive and satisfying in three ways.<\/p>\n First, the opinions do a great job of working through what is, to me, a genuinely hard issue of statutory interpretation. Interpretive signals point in different directions, and we get to hear about them all. From the opinion of the Court by the Chief Justice: Since its 1977 enactment, IEEPA has<\/a> never been used for tariffs; Congress has expressly delegated<\/a> tariff powers in a patchwork of other statutes; and we should be skeptical that Congress has<\/a> \u201chid a delegation of its birth-right power to tax within the quotidian power to \u2018regulate.\u2019\u201d All good points. From the principal dissent by Justice Brett Kavanaugh: \u201cregulate\u201d is a word with a broad meaning that can encompass<\/a> tariffs; parallel language in the predecessor statute to IEEPA was used<\/a> once for major tariffs; and past wartime practice shows<\/a> us why Congress might very well want Presidents to be able to impose tariffs during emergencies. All good points as well.<\/p>\n The second satisfying thing about the opinions is the side-show: the fracas about the major questions doctrine. On this issue, the justices are wonky, passionate, and divided. Chief Justice John G. Roberts applies<\/a> the doctrine, joined by Justices Neil Gorsuch and Amy Coney Barrett. Justice Gorsuch considers<\/a> it to be embedded in constitutional structure. His 46-page concurrence also vehemently objects<\/a> to the approaches taken by seven of his colleagues. Justice Barrett, by contrast, sees<\/a> the major questions doctrine as an \u201cordinary application of textualism.\u201d Justices Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson do not think<\/a> the doctrine exists. Finally, Justices Kavanaugh, Clarence Thomas, and Samuel Alito think<\/a> that the major questions doctrine exists with respect to domestic but not foreign affairs. Where does all this leave us? With more clarity about the views of each particular justice but arguably less clarity about the doctrine. Overall, it is a pleasing window into judicial craft\u2014and good fodder for the classroom.<\/p>\n A final reason that Learning Resources shows the Roberts Court at its best is that the case does not divide along straight liberal\/conservative lines. Three Republican appointees joined<\/a> three Democratic appointees in ruling against the Trump Administration. In this era of high partisanship, this bipartisan agreement is something to appreciate.<\/p>\n All of this I like. Yet reading this case, I cannot help feeling disappointed.<\/p>\n This is because the core issue is not a parsing of the words \u201cregulate \u2026 importation.\u201d Rather, it is the problem of a President who grossly misuses legal authority\u2014without any compunction or any interest in good faith. This problem goes to the heart of our constitutional system of checks and balances\u2014and one whose solution depends on the separation of powers.<\/p>\n None of the six justices in the majority engage with this issue. They easily could have done so. The most obvious way would have been to take up the question of whether the long-standing U.S. trade deficit in goods\u2014which predates<\/a> the passage of IEEPA in 1977\u2014is in fact an \u201cunusual and extraordinary threat.\u201d The answer to that question is easy: It is not<\/a>. Yet the case was teed up to focus on the \u201cregulate \u2026 importation\u201d issue\u2014presumably in part because of the Court\u2019s prior<\/a> reluctance to take on the problem of pretext\u2014and none of the justices looked at the emergency issue. Nor, unlike<\/a> the Federal Circuit below, did they consider whether the magnitude of Trump\u2019s tariffs was so significant that they might be unlawful even if \u201cregulating importation\u201d could encompass some tariffs.<\/p>\n So, the Court dealt with the trees, but it said nothing about the forest. There is no opinion in this case that comes anywhere close to the glorious concurring opinion of Justice Robert Jackson in Youngstown Sheet & Tube v. Sawyer<\/a>, with its recognition of the strains that the party system has placed<\/a> on our system of checks and balances and its candid discussion of presidential power. Ironically, Justice Kavanaugh\u2019s dissenting opinion is the one that makes<\/a> the most references to Justice Jackson\u2019s concurrence\u2014although without acknowledging Jackson\u2019s core point that the Court should<\/a> be wary of \u201caggrandizing the presidential office, already so potent and so relatively immune from judicial review.\u201d<\/p>\n The tariffs case is now behind us. The larger problem of abuse of presidential power remains with us\u2014all too much.<\/p>\n ![\"No](\"https:\/\/www.newsbeep.com\/us\/wp-content\/uploads\/2026\/07\/default_avatar.png\"){kind=avatar}
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