Will Supreme Court Conservatives Permit Trump's
Power Grab?
By Mona Charen
I think the Supreme Court will rule against President
Donald Trump's imposition of tariffs. That said, it's just remarkable that the
vote will not be 9-0.
Trump is claiming sweeping powers to impose (and rescind
and reimpose and re-rescind) tariffs under the International Emergency Economic
Powers Act of 1977 (IEEPA), which was a revised version of the Trading with the
Enemy Act of 1917 (TWEA). The acronyms "I-EE-pah" and
"TWEE-ah" flew around the courtroom like trapped sparrows.
The question for the Court was whether IEEPA actually
grants the president power to impose tariffs — though the word
"tariff" does not appear in the text of the law and no president has
ever before interpreted the statute to grant taxing power. Addressing the
justices on Wednesday, Solicitor General D. John Sauer argued that because the
law grants the power to "regulate" trade in certain emergencies, it
must also include the power to tariff.
But that's a huge leap, and the reason should be obvious to
conservative justices who have claimed to be suspicious of overweening
executive power. Striking down former President Joe Biden's student loan
forgiveness, Justice Brett Kavanaugh said that "some of the biggest
mistakes in the Court's history were deferring to assertions of executive
emergency power," while "some of the finest moments in the Court's
history were pushing back against presidential assertions of emergency power."
Yet when it came to Trump's imposition of crushing tariffs
against every nation on the globe, Kavanaugh curled up at the feet of executive
power like a purring cat. "The tariff on India, right? That's designed to
help settle the Russia-Ukraine war, as I understand it," he said on
Wednesday.
Not quite. The tariff on India reportedly arose from
Trump's pique at Prime Minister Narendra Modi's refusal to say (falsely) that
Trump had negotiated a ceasefire between India and Pakistan and thus deserved
the Nobel Peace Prize.
But let's grant for the sake of argument that Trump's 50%
tariffs on India have a legitimate foreign policy purpose. How does Kavanaugh
account for the extra 10% tariff on Canada in retaliation for a TV ad that
embarrassed Trump by accurately quoting Ronald Reagan's opposition to tariffs?
Or the 40% tariff on Brazil (a country with whom we ran a trade surplus)
for trying and convicting his fellow election stealer Jair Bolsonaro? Kavanaugh
should reread his own words about unwise deferral to executive authority.
As the Court of Appeals for the Federal Circuit ruled in
August, imposing tariffs is a core congressional prerogative, and while the
statute authorizes a number of discrete actions, tariffs were not among them.
This would seem to be a core point. When the president
claims sweeping authority to impose taxes (tariffs) without congressional
approval, he obtains his own independent income stream and Congress becomes a
nullity. Article I, Section 8 of the Constitution specifically vests power in
Congress to "lay and collect Taxes, Duties, Imposts and Excises." It
is Congress, not the president, that is granted power "to regulate
Commerce with foreign Nations." If the Supreme Court were to accept
Trump's grasp for unreviewable taxing power, the balance would be obliterated.
During Wednesday's oral argument, the advocates and
justices discussed the emergency powers in question but didn't dwell on whether
the emergency was real or a Trump alternate reality — like the 2020
"stolen" election.
Trump has claimed several "emergencies" as
justification for upending global trade. One is fentanyl. And while it's true
that fentanyl is a dangerous drug that enters the United States through Mexico,
it is not the case that Canada is implicated — yet Canada is sanctioned along
with Mexico and China. (More than 5,000 pounds of fentanyl were seized on the
southern border in the first part of 2025, but only 64 pounds crossed from
Canada; that's the difference between a U-Haul's worth of fentanyl and a
backpack's worth.)
More risible is the argument that America's bilateral trade
deficits with various countries comprise an emergency. The U.S. has been
running trade deficits since 1976, and in that half-century, it has achieved
the highest per capita GDP on the planet. With only about 4.5% of the world's
population, the U.S. accounts for more than 26% of global GDP. In any case,
something that has been going on since before most Americans were born is
hardly an emergency.
In 2023, the conservative justices were correct to brush
back the Biden assertion of authority to forgive billions in student debt.
Citing "major questions doctrine," Chief Justice John Roberts ruled
that if something will have huge economic or social consequences, it requires
clear congressional authorization.
But it shouldn't require any newly minted doctrine to find
that presidential power, like kingly power, cannot go unchecked. Resistance to
arbitrary power fueled the American Revolution and inspired the Founding. When
Patrick Henry worried that the president might easily become a king, James
Madison sought to reassure him by noting that "the purse is in the hands
of the representatives of the people." In McCulloch v. Maryland (1819),
Chief Justice John Marshall intoned that "the power to tax involves the
power to destroy."
Our Constitution is premised on limiting the power of the
state. Judicial conservatives claim to cherish this idea. Let's see.
Mona Charen is policy editor of The Bulwark and host of the
"Beg to Differ" podcast. Her book, "Hard Right: The GOP's Drift
Toward Extremism," is available now.
