Chemerinsky: SCOTUS tariffs case could hinge on plain text interpretation of law or sway toward deference to president
U.S. Supreme Court
Rarely do issues before the Supreme Court make it to commercials during the World Series. But in the first two games between the Dodgers and the Blue Jays, there were commercials from the Province of Ontario consisting of a 1987 radio address from President Ronald Reagan strongly denouncing tariffs. On Nov. 5, the legality of President Donald Trump’s tariffs will come before the Supreme Court in two consolidated cases.
In both cases, the lower federal courts held that President Trump lacked the legal authority to impose massive tariffs.
In Learning Resources Inc. v. Trump, the United States District Court for the District of Columbia invalidated the tariffs and the Supreme Court agreed to take the case without it being heard by the United States Court of Appeals for the District of Columbia Circuit.
In Trump v. V.O.S. Selections, the United States Court of Appeals for the Federal Circuit, in a 7-4 en banc ruling, ruled against the Trump tariffs.
It is estimated that at this point about $1 trillion in tariffs have been collected. After the United States Court of Appeals for the Federal Circuit invalidated most of the tariffs, President Trump said that their invalidation “would be a total disaster for the country” and “would literally destroy the United States of America.”
In its brief to the Supreme Court, the Trump administration says, “To the president …, these cases present a stark choice: With tariffs, we are a rich nation; without tariffs, we are a poor nation. … Suddenly revoking the president’s tariff authority under IEEPA [International Emergency Economic Powers Act],” he warns, “would have catastrophic consequences for our national security, foreign policy and economy.”
A matter of statutory authority
But for the challengers and the lower courts, this is a question of law: Does the president have the power to impose tariffs without clear statutory authority? Although the case is primarily about the powers of the president under the IEEPA, underlying it are crucial issues of separation of powers and the role of the judiciary in enforcing them. Perhaps for this reason, it is notable that amicus briefs against the tariffs were filed not just by liberal groups, but by conservative ones such as the Washington Legal Foundation, the Chamber of Commerce, the Cato Institute, and the Goldwater Institute.
The basic issue in the cases is whether the IEEPA, a statute adopted in 1977, provides the legal authority for the tariffs imposed by President Trump. The IEEPA authorizes the president to “regulate … importation” in order to “deal with any unusual and extraordinary threat.” The solicitor general’s brief argues: “President Trump’s IEEPA tariffs are plainly lawful. Congress has long granted the president broad authority to employ tariffs to address emergencies. IEEPA continues that tradition.”
Central to the government’s position is that the courts should defer to the president’s decision that the tariffs are necessary. The solicitor general argues: “IEEPA provides that Congress and the political process, not the judiciary, serve as the principal monitor and check on the president’s exercise of IEEPA authority.”
But the challengers argue that IEEPA does not ever mention tariffs, and no prior president ever has interpreted the statute to provide such unlimited authority to impose them. The Federal Circuit noted that other statutes that grant the president tariff authority expressly refer to “tariffs” or use synonymous terms. The Court of Appeals explained that “when drafting IEEPA, Congress did not use the term ‘tariff’ or any of its synonyms.” The court concluded, “[t]he absence of any such tariff language in IEEPA contrasts with statutes where Congress has affirmatively granted such power.” The Federal Circuit stated that where “Congress intends to delegate to the president the authority to impose tariffs, it does so explicitly, either by using unequivocal terms like tariff and duty, or via an overall structure which makes clear that Congress is referring to tariffs.”
Respondent Learning Resources Inc. similarly argues: “In the five decades since Congress enacted IEEPA, no president until now has invoked that law (or its predecessor) when imposing tariffs. That is no surprise: Unlike every actual tariff statute, IEEPA nowhere mentions ‘tariffs,’ ‘duties,’ or any other revenue-raising mechanism.”
The brief of Respondent V.O.S. Selections stresses that the IEEPA gives the power to regulate importation, but the “ordinary meaning of ‘regulate’ does not include the power to tax.” There is no dispute among the parties that tariffs are a tax on goods bought from other countries.
Underlying the statutory interpretation issue are constitutional questions. Trump claims that the courts must defer to his determination that there is an emergency in our balance of trade and because countries are not doing enough to stop fentanyl from coming into the United States.
The solicitor general argues: “the president’s determinations in this area are not amenable to judicial review. Judges lack the institutional competence to determine when foreign affairs pose an unusual and extraordinary threat that requires an emergency response; that is a task for the political branches.”
Respondents, and the many amicus briefs supporting them, reject such unchecked presidential power. They argue that the IEEPA would be an unconstitutional delegation of powers by Congress to the president if it was interpreted to provide unlimited authority to impose tariffs. By contrast, the president argues that in the area of foreign policy, the usual constraints on delegation of powers don’t apply. The solicitor general writes: “This court has thus long approved broad congressional delegations to the president to regulate international trade, including through tariffs.”
Closely related to the nondelegation issue is whether President Trump’s tariffs violate the major questions doctrine. The major questions doctrine says that a federal agency cannot act on a major question of economic or political significance without clear guidance from Congress. For example, on West Virginia v. Environmental Protection Agency (2022), the court held, 6-3, that the EPA lacked the authority to regulate greenhouse gas emissions from coal-fired power plants. Chief Justice John Roberts, writing for the majority, said that this was a major question of economic and political significance, and Congress had not provided sufficiently specific authority for regulation.
In Biden v. Nebraska, the court, again 6-3, struck down the Biden administration’s student loan relief program. Even though a federal statute allowed the secretary of education to “waive or modify” student loan debt, the court—once more in an opinion by Chief Justice Roberts—said that this was a major question and there was not sufficient congressional authorization.
The Federal Circuit applied these precedents to hold that President Trump lacked authority to impose the tariffs. It stated that imposing “tariffs of unlimited duration on imports of nearly all goods from nearly every country with which the United States conducts trade” is “both ‘unheralded’ and ‘transformative.’” Because “[t]he Executive’s use of tariffs qualifies as a decision of vast economic and political significance, [t]he government must ‘point to clear congressional authorization’” for its actions. The Federal Circuit concluded that there was no such authorization in the IEEPA.
President Trump, though, argues that the major questions doctrine does not apply when “Congress delegates authority directly to the president—‘the most democratic and politically accountable official in Government.’” The solicitor general also argues that the major question doctrine should not apply in the realm of foreign policy.
Ultimately, underlying these cases is a tension between Article I and Article II of the Constitution. The challengers to the tariffs stress that tariffs are a tax and under Article I of the Constitution, the power to tax is exclusively vested in Congress. By contrast, Trump’s fundamental argument is that tariffs are about foreign policy and that is for the president to decide.
In reading the briefs, there is a sense that the challengers of the tariffs are making arguments that usually appeal to the conservative justices: follow the plain text of the statute, eschew allowing broad delegations of congressional power, restrict the ability of the executive branch to rule on major questions without clear guidance from Congress. But will these justices, who so far have been tremendously deferential to President Trump, impose limits on a matter so central to his presidential agenda?
Erwin Chemerinsky is dean of the University of California at Berkeley School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s also the author of many books, including No Democracy Lasts Forever: How the Constitution Threatens the United States and A Court Divided: October Term 2023.
