The Supreme Court Spurns a Presidential Power Grab

Trump’s April 2025 “Liberation Day” executive order invoked IEEPA to impose 10 percent tariffs on almost every nation in the world, plus large additional “reciprocal” tariffs against dozens of other countries. He also used IEEPA to impose 25 percent tariffs against Canada and Mexico, and 10 percent tariffs against China, supposedly justified by the flow of fentanyl into the United States from those countries. Taken together, these tariffs amounted to the highest U.S. tariff rates since the disastrous Smoot-Hawley tariffs of the Great Depression, and would have caused grave damage to the U.S. economy.

The main basis for the court’s ruling is that IEEPA does not even mention the word “tariff,” and has never been used to impose them by any previous president during the statute’s nearly 50-year history. The power to “regulate” importation, which IEEPA does grant in some situations, does not include a power to impose taxes.

But an additional crucial factor was the sheer scope of the authority claimed by Trump. As Chief Justice John Roberts noted in his opinion for the court, the president claimed virtually unlimited power to “impose tariffs on imports from any country, of any product, at any rate, for any amount of time.”

The framers of the Constitution wanted to ensure the president would not be able to repeat the abuses of English kings, who imposed taxes without legislative authorization. Under Trump’s interpretation of the law, the president would have virtually unlimited tariff authority, similar to that of an absolute monarch of the kind King Charles I aspired to be. The court decisively rejected this aspiration to unconstrained presidential power. Roberts’ majority opinion, a concurring opinion by Justice Neil Gorsuch, and one by Justice Elena Kagan (writing for all three liberal justices) all, in different ways, emphasized this aspect of the case. As Gorsuch put it, “Our system of separated powers and checks-and-balances threatens to give way to the continual and permanent accretion of power in the hands of one man. That is no recipe for a republic.”

In addition to relying on statutory text, the three conservative justices in the majority also bolstered their holding by citing the “major questions doctrine,” which requires Congress to “speak clearly” when authorizing the executive to make “decisions of vast economic and political significance.” In addition, Justice Gorsuch relied on the nondelegation doctrine, which limits the extent to which Congress can delegate its authority to executive discretion. Together, major questions and nondelegation are valuable tools for constraining presidential power grabs. And these three justices deserve credit for applying them to a Republican president with the same rigor as they previously did with Democratic ones, most notably Joe Biden.

But the judiciary’s future ability to constrain dangerous presidential power grabs depends in large part on an issue the court managed to avoid in the IEEPA case: whether and to what extent to defer to presidential assertions that an extraordinary situation exists justifying the invocation of sweeping emergency powers.

IEEPA is limited to situations in which there is an “emergency” amounting to an “unusual and extraordinary threat.” Trump’s Liberation Day tariffs were supposedly justified by the threat of trade deficits. But deficits are a common phenomenon, neither unusual nor extraordinary. Nor do they pose any danger to the United States. If trade deficits count as an “unusual and extraordinary threat,” virtually anything does. The fentanyl tariffs also did not address a genuine threat. The flow of fentanyl from Canada to the U.S. is negligible, and the vast bulk of that from Mexico is actually brought in by U.S. citizens coming through legal ports of entry.

The court didn’t have to consider whether a genuine “unusual and extraordinary threat” existed in the IEEPA case, because it ruled that IEEPA did not authorize imposition of tariffs in any situation. But, as I explained in an earlier piece for The Dispatch, there are many cases working their way through the court system in which presidential invocations of emergency powers depend on determinations that an emergency of the right type exists.

Most notably, Trump has claimed that illegal migration and drug smuggling qualify as an “invasion” that justifies invoking the Alien Enemies Act of 1798, which would grant sweeping power to detain and deport even legal migrants. In the event of “invasion,” the Constitution also grants the federal government the power to detain people without due process. The administration has claimed the president is entitled to broad deference when he asserts an invasion exists. So much so that he could—by the Justice Department’s own admission in an ongoing court case—even invoke the Alien Enemies Act in response to the “British Invasion” of rock stars like the Beatles. The ultimate outcome of the “invasion” litigation remains to be seen. Courts would do well to rule, as some already have, that only a military attack qualifies as an “invasion” and that the executive must prove that one exists before invoking emergency powers, not merely assert it. Trump also demands similar deference for his domestic use of the military.

Of course, Republican presidents like Trump are not the only ones who can abuse emergency powers. President Biden sought to do so when he tried to use the COVID emergency as a pretext for a massive student loan forgiveness plan, most of whose beneficiaries were not actually victims of the pandemic (the Supreme Court rightly ruled against the move). Today, as Justice Gorsuch noted during the tariff case oral arguments, some on the left hope to invoke a “climate emergency,” even though climate change is not a sudden crisis but an ongoing long-term problem.

The issue of how much deference to give to presidential invocation of emergencies is also likely to arise again in the context of tariffs. Within hours of the court’s decision, Trump issued an executive order using Section 122 of the Trade Act of 1974 to impose 10 percent global tariffs, before upping the rate to 15 percent the next day. But Section 122 only permits tariffs in response to “fundamental international payments problems” that cause “large and serious United States balance-of-payments deficits” (which are not the same thing as trade deficits), “an imminent or significant depreciation of the dollar,” or to cooperate with other countries in addressing an “international balance-of-payments disequilibrium.” As prominent conservative legal commentator Andrew McCarthy explains in an insightful article for National Review, these preconditions for the use of Section 122 do not exist. There is no “fundamental international payments problem,” and the United States does not have a balance-of-payments deficit. In addition, Section 122 tariffs can only remain in force for up to 150 days unless extended by Congress.

But when the Section 122 tariffs are challenged in court (as they likely will be), judges will have to decide whether to defer to Trump on the question of whether the statutory prerequisites are met. And when the 150-day period expires, they may also have to decide whether Trump can extend it simply by claiming a new balance-of-payments problem has arisen. If judges (mistakenly) give him broad deference, Section 122 could become a blank check for presidential tariff-setting that the Supreme Court just denied him in the IEEPA case. More generally, if the courts are not willing to carefully scrutinize executive invocations of sweeping emergency powers, deference to such claims could be a backdoor path to the sort of monarchical authority the court rightly rejected in its tariff decision.