The Supreme Court Delivers Trump a
Humiliating Gift
Finally, a check on the president’s
tariff powers.
By David
Frum
February 20, 2026, 2:10 PM ET
In
the 1630s, King Charles I tried to
tax English people without the consent of their legislature. He lost his head.
In the 2020s, Donald Trump tried to
tax Americans without the consent of Congress. He just lost his case.
A tariff is a tax. The Trump tariffs
imposed in and after April 2025 were projected to raise as much as $2.3
trillion over 10 years. The Constitution assigns authority over taxes,
including tariffs, to Congress. It does so for reasons that date back to English
constitutional history: An executive who can tax without permission from
elected representatives is on his way to becoming a tyrant.
Conor Friedersdorf: Striking down Trump’s tariffs isn’t a
judicial coup
President Trump has had lots of ideas
for how to spend the money he collected without Congress. He has offered it to
farmers. He has mused about direct cash payments to taxpayers. He has
speculated about creating a sovereign wealth fund to invest in companies. He
has disregarded the fundamental principle that spending, like taxing, is a
power the Constitution assigns to Congress, not the president.
Now we may be on the verge of a
regime-changing war against Iran. War-making is also supposed to be a
congressional power—but there’s no sign that Trump will allow Congress to vote
on his war. In the past, the ultimate check on the president’s war-making
powers was Congress’s power over the purse. When President Clinton intervened
in the former Yugoslavia in 1999, Congress deadlocked over a vote of
authorization, but approved the appropriation to pay for
it, an authorization by a different name. But if Trump were allowed to tax
without Congress, then he might reasonably conclude that he could fight wars
without Congress.
Trump’s tariffs were
advertised as a revenue source liberated from the restraints imposed by Article
I of the Constitution. Had the Supreme Court upheld the tariffs, it would have
wrought a constitutional revolution. Instead, the court quashed Trump’s scheme.
Like every president before him, if he wants money—for an Iran war or any other
purpose—he will have to ask Congress for it.
Trump’s theory was that an emergency-powers
law passed in the 1970s allowed him to impose permanent
revenue-raising tariffs on anyone for any reason. This argument was always
far-fetched. The law, the International Emergency Economic Powers Act, was part
of the post-Watergate reform to reduce presidential emergency
powers. The IEEPA reformed the Trading With the Enemy Act passed during World
War I. President Franklin Roosevelt had used that law to ban most private
ownership of gold bullion in 1933, which even supporters had to concede was a
fantastic legal reach. After Watergate, Congress sought to restrain the
president by limiting the IEEPA to “unusual and
extraordinary” threats to “the national security, foreign policy, or economy of
the United States.” The law’s powers can be invoked only after a formal
declaration of national emergency, and the word tariff appears nowhere among
the powers conferred upon the president by the law. To put it another way, a
permanent 25 percent tax on Canadian maple-syrup-tapping technology is not what
the authors of the IEEPA had in mind.
Trump gets very impatient when he’s
asked about “affordability.” You can understand why he squirms. The price
increases Americans have felt in 2025 and 2026 can be blamed in no small part
on Trump’s tariffs. Power bill up? Trump imposed a tariff on the equipment used to generate
and transmit electricity. Six-pack of beer more expensive? Trump taxed the beer cans. Kids need new shoes?
Trump’s tariffs raised the cost.
Jerusalem Demsas: There’s no coming back from Trump’s
tariff disaster
The ironic political question for 2026
is whether the U.S. Supreme Court acted in time to save Trump from himself.
Whether or not it was the justices’ intention to help Trump, a generally
Trump-friendly Supreme Court has offered the president an exit from one of his
most unpopular domestic policies. Will he accept the handout? Acceptance would
be smart, but humiliating. Trump holds other legal means to disrupt
international trade, some of which he used in his first term. But those powers
have tighter legal limits than Trump wants. They don’t raise the kind of
lawless revenue he plainly hoped for, but they can still cause havoc until
their abuse is checked—and the federal courts have thus far flinched on
supplying such checks on the president’s power. Until and unless a future
Congress acts to protect Americans from Trump protectionism, the outlook for
U.S. prosperity and security will remain clouded.
While shadows dim the future, the sun
shone today. U.S. stocks surged after Trump’s Supreme Court defeat. American
consumers may soon feel the benefit. Liberated from this approach to economic
warfare, relations with allies may recover some of their former cordiality. And
unlike the case of Charles I, all of this was accomplished while allowing
America’s president to lay his unsevered head on his pillow tonight.
