Shortly after the Supreme Court announced last Friday that it had ruled by a 6-3 margin, in a case called Learning Resources v. Trump, to invalidate many of the tariffs that President Trump had imposed since last April, President Trump announced replacement tariffs on the imports from America’s global trading partners. These tariffs are based upon a different federal trade statute that is widely believed to be immune to legal challenges in the Supreme Court. The very next day, Trump announced that he was raising the new tariffs, which were to take effect on Tuesday, February 24, from 10% to 15%, and warned that additional new tariff announcements, based upon other federal trade statutes, would be coming soon.

“I, as President of the United States of America, will be, effective immediately, raising the 10% Worldwide Tariff on Countries, many of which have been “ripping” the U.S. off for decades, without retribution (until I came along!), to the fully allowed, and legally tested, 15% level,” the president wrote on Truth Social.

“During the next short number of months, the Trump Administration will determine and issue the new and legally permissible Tariffs, which will continue our extraordinarily successful process of Making America Great Again — GREATER THAN EVER BEFORE!!!” he continued.

Despite last week’s legal defeat, Trump has doubled down on his tariff strategy because, in addition to using the threat of tariffs to reach more favorable foreign trade agreements, he believes it will raise a lot of money for the Treasury to reduce the budget deficit, while encouraging more domestic manufacturing and attracting more foreign investment in the American economy.

Trump has warned nations that negotiated trade deals with him over the past year to stick with them, or risk being hit with new tariffs. “Some of them stand, many of them stand, some of them won’t, and they’ll be replaced with the other tariffs,” the president declared at his news conference shortly after the justices handed down their ruling. In the meantime, exports from all countries will apparently now face the new 15% tariff rate the president announced the day after the high court’s ruling, regardless of any previous trade concessions they have made with Trump previously.

Limitations on Trump’s New 15% Tariff

But the new global tariff does have certain exemptions that Trump carved out on certain imports, including beef and other agricultural products, whose prices the president wants to keep as low as possible because of his political sensitivity to the affordability issue in November’s midterm election.

Nor will the new 15% rate affect goods like foreign autos and steel, which are already subject to tariffs that were previously imposed on national security grounds, and which were not affected by last week’s Supreme Court ruling. Trump has also upheld the terms of a trade deal that he previously brokered with Canada and Mexico that allows certain types of imports from those countries to remain tariff-free.

Last week’s 6-3 Supreme Court decision also featured a rare alliance between the three liberal justices, Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson, and three members of its six-justice conservative majority who have reliably voted over the past year to uphold almost all of President Donald Trump’s policy agenda against liberal challenges.

Supreme Court Ruling Denies Trump His Favorite Negotiating Tool

In ruling that the International Emergency Economic Powers Act (IEEPA), which was passed by Congress in 1977, “does not authorize the president to impose tariffs” by executive order, the high court disabled a major tool that Trump has wielded effectively to impose his will on many of America’s major trading partners around the world. Trump boasts that he was even able to use the threat of tariffs to force nations that were at war with one another to make peace in order to avoid losing their access to the domestic U.S. market for their exports.

In the majority opinion that he wrote for the case, Chief Justice John Roberts concluded that permitting Trump’s tariffs to stand “would represent a transformative expansion of the President’s authority over tariff policy,” that would encroach on the authority to levy all federal taxes that the U.S. Constitution granted exclusively to Congress, as part of the system of checks and balances established by America’s Founding Fathers in 1787.

Trump and his supporters, including Justices Brett Kavanaugh, Clarence Thomas, and Samuel Alito, claim that the term “regulate” in the language of the IEEPA is broad enough to include the power to impose tariffs. The three justices have also argued that tariffs “are a traditional and common tool to regulate importation,” and that Trump has interpreted the meaning of the IEEPA’s language correctly.

But Chief Justice Roberts, in his majority opinion, disagrees. He insists that the term “regulate,” as it is ordinarily used, means to “fix, establish, or control; to adjust by rule, method, or established mode.”

“Many statutes grant the Executive the power to ‘regulate,’” Roberts points out. “Yet the Government [in its legal presentation supporting the tariffs] cannot identify any statute in which the power to regulate includes the power to tax.”

It is also significant that a federal trade court and a federal appeals court both found Trump’s IEEPA tariffs to be illegal before the Supreme Court took up the case.

Roberts also noted that the IEEPA does not explicitly mention tariffs. Instead, it allows the president to “regulate … importation or exportation” of foreign property transactions after declaring a national emergency to deal with certain “unusual and extraordinary” threats.

Roberts also wrote that it’s “telling that in IEEPA’s half century of existence, no President has invoked the statute to impose any tariffs — let alone tariffs of this magnitude and scope.” Roberts also emphasized that in order to justify the “extraordinary” tariff powers that Trump claimed, he needed to “point to clear congressional authorization. . . [because] when Congress has delegated its tariff powers, it has done so in explicit terms, and subject to strict limits.”

The Liberal-Conservative Dispute Over the Major Questions Doctrine

However, even though they also denied the legality of Trump’s tariffs, the three liberal justices on the high court declined to join in the part of Roberts’ opinion which cited the Major Questions doctrine which the conservative majority of justices on the court have used in recent years to bar any sweeping presidential action regarding fiscal policy that has not been specifically authorized by Congress. The doctrine insists that before taking any economically significant action, a president needs some form of express congressional authorization.

For example, the conservative majority on the Supreme Court applied the Major Questions doctrine to strike down President Joe Biden’s efforts in 2023 to forgive all student loan debt without authorization from Congress, as well as his proposed eviction moratorium and vaccine mandate during the Covid pandemic.

President Biden had wanted to forgive all student loans, citing a law previously passed by Congress that allowed the federal Education Department to “waive or modify” rules for students to pay back the loans that they took from the federal government to finance their college educations. But the majority bloc of conservative justices ruled, based upon the Major Questions doctrine, that the language of that law was not clear enough to authorize President Biden to cancel all of the $430 billion in student loans owed to the federal government.

Two years earlier, during the Covid pandemic, the same six conservative justices struck down the Biden administration’s nationwide moratorium on evictions from apartments, because they ruled that the 1944 public health law that allows the federal government to impose quarantines during health emergencies was too narrow to support a general ban on all housing evictions.

The Major Questions Doctrine Also Limits Government Agencies

In its landmark ruling in the case known as West Virginia v. EPA in 2022, the Supreme Court’s conservative majority used the Major Questions doctrine to strike down a regulation by the Biden administration’s federal Environmental Protection Agency (EPA), which would have forced West Virginia to shift its electrical power generation from coal-burning plants to cleaner energy sources. The court found that the EPA had exceeded the power it had been granted under Section 111 (d) of the Clean Air Act, passed by Congress in 1972 to fight air pollution in order to protect the ozone layer, because the legislation made no mention of greenhouse gases or climate change.

In last week’s Supreme Court ruling, three members of its conservative bloc, Justices Clarence Thomas, Samuel Alito, and Brett Kavanaugh wrote in their own dissenting opinions that they would have upheld Trump’s tariffs entirely, based upon the argument that “tariffs are a traditional and common tool to regulate importation,” which would have made them compliant with the language of the IEEPA law.

Chief Justice Roberts wrote that the “stakes” in the tariff case “dwarf those of other Major Questions cases.” He cites the Trump team’s own claims: “The Government points to projections that the tariffs will reduce the national deficit by $4 trillion, and that international agreements reached in reliance on the tariffs could be worth $15 trillion.”

However, in a dissenting opinion upholding Trump’s tariffs, Justice Kavanaugh argued that the Major Questions doctrine should not apply because international trade falls within the realm of foreign affairs, which the Constitution assigns to the authority of the president rather than Congress.

In a small concession to Kavanaugh’s argument, Justice Gorsuch acknowledges that “the Major Questions doctrine may speak with less force where the President and Congress enjoy ‘overlap[ping] . . . authority’ under the Constitution, such as in foreign affairs.” However, Gorsuch emphasizes that the Constitution expressly assigns the power over taxation in the form of imposing tariffs on imports to Congress and not the president.

Gorsuch Caught Between the Court’s Liberals and Conservatives

In his 46-page opinion, concurring with the three liberal justices, as well as his fellow conservative justices, John Roberts and Amy Coney Barrett, Justice Gorsuch criticized the other three conservative colleagues, Thomas, Alito, and Kavanaugh, for applying the Major Questions legal doctrine much more permissively against President Trump than they did against President Biden.

In essence, the dispute that divided the six conservative Supreme Court justices in last week’s case was whether or not the Major Questions doctrine applies, because the language that Congress used in the IEEPA law to empower the president to “regulate” foreign trade in a national emergency never mentioned tariffs specifically. According to the opinion written by Justice Roberts, whenever Congress gives some of its constitutional powers to the president or some other part of the executive branch of the government on a major question, such as imposing tariffs on imports from other countries or forgiving hundreds of billions of dollars’ worth of student loans, Congress must “speak clearly” in the language of its legislation.

As Roberts explains in his decision, “Recognizing the taxing power’s unique importance, and having just fought a revolution motivated in large part by ‘taxation without representation,’ the Framers [of the U.S. Constitution] gave Congress ‘alone . . . access to the pockets of the people.’”

In his concurring opinion, Gorsuch argues that despite the vague language in the IEEPA, the Constitution gives Congress, rather than the president, the ultimate authority over tariffs, and that last week’s decision will ultimately prove to be essential for the protection of American democracy. “If history is any guide,” Gorsuch wrote, “the tables will turn and the day will come when those disappointed by today’s result will appreciate the legislative process for the bulwark of liberty it is.”

Justice Gorsuch also accuses the three liberal justices on the Supreme Court bench, Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson, of political bias for their prior dissents in cases where the court’s conservative majority used the Major Questions doctrine to strike down efforts by a Democrat president to overreach his constitutional authority. “[The] approach [of the liberal justices] today is difficult to square with how they have interpreted other statutes, [in the past]” Gorsuch wrote in his opinion last week, suggesting that their rulings are sometimes more influenced by their partisan political interests rather than their understanding of the meaning of the law.

By contrast, a Wall Street Journal editorial praised Justice Gorsuch for taking a position roughly halfway between the liberal justices who have refused to recognize any constitutional limits on presidential power in the past, as long as that president is a liberal Democrat, and his three conservative fellow justices, who ruled that the Major Questions doctrine does not apply to tariffs on foreign countries. From Gorsuch’s point of view, the Major Questions doctrine must be upheld to protect the constitutional authority of Congress from infringement by either the president or the unelected bureaucrats of the administrative state.

Understanding the Dangers of Too Much Government Authority

Gorsuch argues that the Major Questions doctrine is neither anti-president nor anti-administrative state, but rather was intended to be “pro-Congress.” He wrote, “Our founders understood that men are not angels, and we disregard that insight at our peril when we allow the few (or the one [the president]) to aggrandize their power based on loose or uncertain authority. We delude ourselves, too, if we think that power will accumulate safely and only in the hands of dispassionate ‘people . . . found in [government] agencies.’”

The Wall Street Journal editorial also praises Gorsuch’s decision because it applies the restrictions of the Major Questions doctrine in a bipartisan way, “when liberal [Democrat] Presidents impose vaccine or energy mandates, or when a Republican President claims tariff power, based on no clear law.”

As the editorial points out, “This protects against one-man or unaccountable bureaucratic rule, which is increasingly how the U.S. has been governed under Presidents of both political parties as they seek to avoid the hard work of getting something passed in Congress.”

But from the point of view of the editorial, “as Justice Gorsuch makes clear, the difficulty of passing legislation is a constitutional feature, not a fault. ‘Deliberation tempers impulse, and compromise hammers disagreements into workable solutions,’ [Gorsuch] writes. ‘And because laws must earn such broad support to survive the legislative process, they tend to endure.’”

Supreme Court Rules in Favor of Maintaining the Balance of Power

The editorial agrees with Gorsuch that “the legislative process” needs to be strengthened so that Congress can fulfill its original constitutional purpose as “the bulwark of liberty.” It also sees Gorsuch’s call for Congress to do a better job of fulfilling its constitutional mission as a rebuke to those members of Congress on the left, in particular, who “like to write vague laws that hand power to bureaucratic ‘experts’ who can dictate how Americans should live.”

From the Wall Street Journal editorial’s point of view, “Congress has. . . ceded too much tariff power to a President who refuses to use it with restraint. Putting limits on discretionary tariff authority would be a good start on reviving the proper role of Congress.”

In a separate editorial entitled “The Embarrassing Truth About Tariffs,” the Wall Street Journal suggests that the impact of Trump’s tariffs upon the economy and consumers is more mixed than the president is willing to admit. It cites the findings of a newly published analysis by four economists at the Federal Reserve Bank of New York, which found that “American households and businesses are bearing nearly 90% of the cost of the Trump tariffs,” which contradicts Trump’s claim that foreign exporters are mostly paying for them. The editorial also notes that “so far, the [American] manufacturing boom Mr. Trump promised hasn’t appeared,” and that Federal Reserve Chairman Jerome Powell was right when he “warned that tariffs might raise prices.”

The Wall Street Journal editorial, therefore, concludes that “the Trump economy has been as healthy as it is despite the tariffs, not because of them,” even though it does approve of Trump’s other major economic policies, including tax reform and deregulation.

Justice Kavanaugh Would Give Trump Flexibility by Approving Tariffs

On the other side of the dispute among conservatives over the limits of the Major Questions doctrine, Justice Kavanaugh, in his forceful dissenting opinion, upholds the validity of Trump’s tariffs. Kavanaugh argues that when Congress was not specific and used broader language in the IEEPA law, it did so deliberately to “provide flexibility” to the president that he might need “to address the unusual and extraordinary threats specified in a declared national emergency.”

Trump justified his use of the emergency authority granted to him by the IEEPA law by claiming that the influx of deadly illicit drugs from China, Mexico, and Canada that have killed hundreds of thousands of American citizens in recent years, and the chronic balance of payments trade deficit that has decimated American manufacturing, both constituted dangers serious enough to be declared national emergencies. This justified his imposition of tariffs as the most effective way to counter them, even though Trump’s critics argue that the added cost of his tariffs will ultimately be passed along to American families in the form of higher prices for most kinds of imported goods.

“The tariffs at issue here may or may not be wise policy,” Kavanaugh conceded. “But as a matter of text, history, and precedent, they are clearly lawful,” and within the additional authority that was granted to the president by Congress in the IEEPA law.

“The court has never before applied the Major Questions doctrine in the foreign affairs context, including foreign trade,” Kavanaugh wrote. In those cases, “courts read the statute as written and do not employ the Major Questions doctrine as a thumb on the scale against the president.”

In his dissent, Kavanaugh also cited the Supreme Court’s decision in 2022 upholding the vaccine mandate that President Joe Biden imposed on millions of healthcare workers as a precedent supporting the legality of Trump’s tariffs. It was also an executive action that carried major consequences, even though Congress did not explicitly mention vaccines in the health and safety federal statute it passed years earlier, which Biden used to justify the mandate.

Trump’s initial public response to the Supreme Court’s ruling last Friday, which struck down the tariffs he has used to settle trade and other policy disputes with America’s foreign trading partners, was to call it “deeply disappointing.” Trump added that he was “ashamed of certain members of the court” for voting to strike down his tariffs.

Trump Singles Out Justice Kavanaugh for Praise

More specifically, Trump called two of his appointees to the high court, justices Gorsuch and Barrett, an “embarrassment to their families.” At the same President Trump applauded his third appointment to the Supreme Court bench, Justice Kavanaugh, for his “genius and his great ability” in defending Trump’s tariffs. Trump added that he was “very proud of that [Kavanaugh’s] appointment” to the Supreme Court back in 2018, which was bitterly opposed by Democrats at the time.

The president then added more generally, “I’d like to thank and congratulate Justices Thomas, Alito, and Kavanaugh for their strength and wisdom and love of our country, which is right now, very proud of those justices. When you read [their] dissenting opinions, there is no way that anyone can argue against them,” the president declared.

In criticizing the 6-3 majority decision, Trump pointed out an inconsistency that Kavanaugh also mentioned in his dissenting decision, that his tariffs are actually a “far more modest” alternative to the other forms of trade “regulation,” such as quotas and embargoes, that even the majority of the Supreme Court concedes are within the president’s authority under the existing language of the IEEPA law.

As Justice Kavanaugh wrote, “If quotas and embargoes are a means to regulate importation, how are tariffs not a means to regulate importation? Nothing in the text supports such an illogical distinction.”

Trump also paraphrased Kavanaugh’s objection to the interpretation of the IEEPA statute by the majority of his fellow justices because it would mean that “the President could, for example, block all imports from China but cannot order even a $1 tariff on goods imported from China.”

If the Tariffs Were Illegal, Will Those Who Paid Them Get Refunds?

Kavanaugh also criticized the six justices who struck down Trump’s tariffs for ignoring the “serious practical consequences” of their silence on the crucial question of whether or how “billions of dollars” of tariffs already collected by the federal government from the “importers who paid” them could or should be dealt with, “even though some importers may have already passed on [the tariff] costs to consumers or others.”

Kavanaugh was implying that to the extent these importers have already been effectively repaid for the tariffs in the form of the higher prices they have collected from the public, they had no right to refunds from the federal government because that would amount to double compensation. If that is the case, then Trump’s proposal to issue any refund for the tariffs directly to the taxpayers who paid them in the form of higher prices would be more justified.

Kavanaugh then cited a point that was conceded during the oral arguments made by both sides in this case, this past November, that the flood of lawsuits from businesses looking for a refund of the illegal Trump tariffs that they have already paid “is likely to be a ‘mess.’” Especially if Congress does nothing to specify the details of the tariff refund process, it will likely take years to sort them out in the federal courts.

Trade groups for the retailers, apparel makers, and other businesses that paid for the tariffs have said they hoped their member companies could quickly receive refunds. The National Retail Federation called upon federal courts or Congress to provide a “seamless process to refund the tariffs to U.S. importers,” including more than 200,000 small businesses.

However, Treasury Secretary Scott Bessent told the Economic Club of Dallas that litigation in the courts to provide refunds to those who paid the tariffs is likely to stretch out for months and is unlikely to yield any benefits to consumers who were forced to pay higher retail prices as a result of the tariffs.

How Tariffs Impacted U.S. Companies Large and Small

Franco Salerno, the co-owner of Darianna Bridal & Tuxedo in Warrington, PA, told the Wall Street Journal that he was worried about his retail customers demanding some of their money back because his bridal-wear prices rose an average 8% to 14% after Trump’s tariffs went into effect.

The Wall Street Journal also reported that Chicken of the Sea International is studying whether the ruling could help revive production at its Georgia canning plant that relies on imported tuna.

Company president Andy Mecs said that it has paid more than $10 million in Trump tariffs ranging from 15% to 20% on frozen tuna it imports from Thailand, Vietnam, and other countries. Because of the higher costs, he said the company cut back its production at the 250-employee plant to four days a week from five. But Mecs said he would be willing to consider scaling up production again if the tariffs his company pays are now reduced.

Meanwhile, Trump has already announced that he will use his other tariff powers that have already been recognized as legitimate by the Supreme Court to replace the tariff levies that were struck down in last week’s ruling.

Justice Kavanaugh Questioned the Logic of the Court’s Decision

Recognizing this reality, Justice Kavanaugh wrote in his dissenting opinion last week that, “‘Although I firmly disagree with the court’s holding today, the Court’s decision is not likely to greatly restrict Presidential tariff authority going forward.”

Even without the emergency authority granted to the president by the IEEPA, Kavanaugh declares, “the Court’s decision might not prevent Presidents from imposing most if not all of these same sorts of tariffs under [numerous] other federal statutes.”

Justice Thomas Cites a Nixon-Era Precedent Supporting Trump’s Tariffs

Conservative Justice Clarence Thomas also wrote a dissenting opinion supporting the legality of Trump’s tariff, declaring that “neither the statutory text” of the IEEPA law, “nor the Constitution” provides a basis for ruling against the President.

“This Court has consistently upheld Congress’s delegation of power over foreign commerce, including the power to impose duties [another word for tariffs] on imports. The Court has long conveyed to Congress that it may ‘invest the President with large discretion in matters arising out of the execution of statutes relating to trade and commerce with other nations,’” Thomas affirmed in his opinion.

Justice Thomas also argued that by delegating its tariff-setting power to the president in the IEEPA law, Congress did not weaken its exclusive constitutional authority over taxation or its other core legislative power to make rules affecting the “life, liberty, or property” of the American people.

While some legal scholars have argued that when Congress passed the Trading with the Enemy Act (TWEA) in 1917, at the beginning of World War I, it was recognizing the president’s authority under Article II of the Constitution to impose taxes as commander-in-chief during wartime, which can only be declared by an act of Congress, other legal experts have argued that the same power cannot be legally exercised by a president even in a national emergency, if Congress does not clearly give its consent.

However, Justice Thomas argues that the TWEA provided a firm legal basis for President Nixon’s 1971 decision to invoke a 10% across-the-board import surcharge on imports from all foreign nations. In addition, Nixon’s tariff surcharge was upheld by a 1975 ruling of the U.S. Court of Customs and Patent Appeals, which cited the “regulate … importation” language in the Trading with the Enemy Act.

As a result, Justice Thomas wrote in his own dissent against the Supreme Court’s decision last week that “the meaning of that phrase [regulate importation] was beyond doubt by the time that Congress enacted [the IEEPA] statute, shortly after President Nixon’s highly publicized duties on imports were upheld based on identical language.” Justice Thomas concludes that the IEEPA “statute that [President Trump] relied on therefore authorized him to impose the duties on imports at issue in these cases,” and that the Supreme Court “errs in concluding otherwise.”

Roberts Insists Congress Speak Clearly When Empowering Presidents

Chief Justice Roberts, in his opinion, disagrees with Kavanaugh’s argument that the vague language of the IEEPA law does give President Trump the authority to impose tariffs at will during a presidentially declared national emergency. Roberts wrote that, “When Congress grants the power to impose tariffs, it does so clearly and with careful constraints. [But in the case of the IEEPA law], it did neither here.”

Justice Gorsuch argues that when the Founding Fathers of this country wrote the Constitution, they felt that “The power to reach into the pockets of the American people is just different, and it’s been different since the Founding and the Navigation Acts that were part of the spark of the American Revolution.” They believed that giving presidents the power to raise or borrow significant amounts of money without seeking authorization from Congress was dangerous because it allows presidents to create a slush fund with which to fund their own government operations at will, without having to seek Congressional approval.

Gorsuch also noted disapprovingly in his dissenting opinion that, “past critics of the Major Questions doctrine do not object to its application in this case.” That was a reference to the refusal of liberal justices Kagan, Sotomayor, and Jackson to endorse the Major Questions doctrine in their own separate opinions, ruling Trump’s tariffs illegal for other reasons, apparently for fear that if they approved the Major Questions doctrine, it might be used once again to limit the authority of a future Democrat president. However, Justice Gorsuch noted that the substitute reasoning that the three liberal justices used to justify striking down Trump’s tariffs still seemed suspiciously similar to the Major Questions doctrine that they refused to endorse.

Back in 2022, in one of the first modern-day applications of the Major Questions doctrine, when the conservative bloc on the court struck down one of President Biden’s edicts to cut down power plant emissions to fight climate change, Justice Kagan accused her “originalist” conservative colleagues on the Supreme Court bench of hypocrisy when she wrote that “[legal] canons like the ‘Major Questions doctrine’ magically appear as get out-of-text-free cards” whenever ignoring the clear text used by Congress in writing a particular law suited the cause of advancing their conservative political agenda.

The Importance of Neutrality in Applying New Legal Principles

Stephanie Barclay, a Georgetown law professor who clerked for Gorsuch, told CNN that the debate among the conservative justices over whether the Major Questions doctrine applied to Trump’s tariffs was actually an encouraging sign, because it indicates that they were “doing the hard work” of clarifying their understanding of the important new doctrine, which is, as a result, “maturing and deepening.”

“One of the most important things about this [tariff] decision is what it tells us about the Major Questions doctrine’s [political] neutrality,” Barclay explained. “The Major Questions doctrine is not about who occupies the White House; it is about whether the person who occupies the White House can claim powers that Congress never clearly granted.”

In his immediate response to the ruling striking down his IEEPA tariffs, President Trump set his new global tariff rate at 10 percent, to go into effect at midnight on February 24. Those tariffs are based upon a widely accepted provision of Section 122 of the Trade Act of 1974 that empowers a president to impose an across-the-board tariff to remedy a balance-of-payments deficit. However, that presidential tariff authority expires after 150 days (six months) unless Congress agrees to extend it.

Trump’s “Plan B” for Restoring His Tariffs

In addition to Section 122, U.S. Trump has several other federal trade statutes that give him broad powers to propose tariffs for a wide variety of reasons, but each of them specifies its own set of requirements and procedures that the president must follow before he can actually impose each of the proposed tariffs.

President Trump has already invoked some of these laws. They include the Section 301 tariffs of up to 25% that Trump has imposed on around half of all Chinese imports to the United States due to China’s grossly unfair trade practices.

President Trump has also imposed Section 232 tariffs of the Trade Expansion Act of 1962 of up to 50% on imports from every other country of steel and aluminum, automotive goods, heavy-duty trucks, copper, and wood products, on the grounds that each of these categories of goods is essential to U.S. national security, and that it is essential to protect the domestic industries that produce them.

The Trump administration has also started the process of creating additional Section 232 tariffs to protect domestic industries that produce semiconductors, pharmaceuticals, rare-earth and other critical minerals, as well as commercial aircraft, and tariffs on various “derivative” products made from goods already subject to Section 232 tariffs.

In his press conference immediately after the Supreme Court ruling on Friday, Trump acknowledged that his economic team had been studying for some time how these well-established Section 122 and Section 232 tariff laws could be used to replace the IEEPA tariffs that the court struck down, and which are not vulnerable to the same type of legal challenges. In addition, the administration might consider using Section 338 of the Tariff Act of 1930, which authorizes the president to impose tariffs of up to 50% on imports from countries that have “discriminated” against U.S. commerce, but this would be legally riskier because the language Congress used in fashioning Section 338 is more ambiguous than in the other two tariff authorizing sections.

Trump’s New Tariffs Have the Advantage of Predictability

While the resulting range of these replacement global tariffs would be similar to those that Trump imposed under IEEPA, their main advantage for many American businesses and foreign trading partners is that each of these tariff statutes has limits on their size and scope, and requires Trump to follow a predictable process. Those tariff statutes do not permit President Trump to turn them on or off at will, as he did with the IEEPA tariffs, whose lack of such limits and procedural guardrails created a lot of uncertainty about the future of the U.S. economy. The volatility of Trump’s tariff decisions made it very difficult for the leaders of importing businesses and foreign trading partners to make long-term plans and pricing decisions, and did not give them the lead time they needed to make the necessary preparations before Trump’s new tariffs went into effect.

Trump said that all six of the justices who ruled against him were “very unpatriotic and disloyal to our Constitution.” Even though Trump claims that his tariffs will survive despite last week’s ruling, he angrily denounced justices Gorsuch and Barrett for ruling against his tariffs, even though he nominated them to their current seats on the highest court in the land. He also called their opinions in the case “ridiculous, poorly written, and extraordinarily anti-American.”

Trump’s condemnation of Barrett and Gorsuch was ironic because his success in putting them along with Kavanaugh on the high court has been widely regarded as one of the most important conservative accomplishments of his first term as president.

Democrats Rejoice Over Trump’s Loss at the Supreme Court

Congressional Democrats rejoiced following last week’s tariff decision. Senate Minority Leader Chuck Schumer said in a statement that the tariffs were “chaotic and illegal.”

Republicans were more divided on the tariff issue. Some slammed the Supreme Court for its decision, while others argued that Congress still retains its constitutional authority to implement tariffs.

Trump announced his aggressive global reciprocal tariff policy last April at a celebratory White House event marking what he named America’s “liberation day.”

However, when his announcement stoked a sudden panic on the stock markets, Trump quickly paused the initial tariffs and has been tweaking, delaying, or fine-tuning them ever since, on a country-by-country basis, resulting in a tangled web of trade policies. The resulting confusion has strained America’s international alliances and rattled global markets. At the same time, Trump’s tariffs have increased the challenge of trying to bring down the rate of inflation while American businesses are facing an increase in the cost of their imports due to Trump’s tariffs and the temptation to pass those costs on to their customers in the form of higher prices.

That is why the Wall Street Journal editorial board welcomed last week’s Supreme Court decision as a vindication of the Constitution’s basic governing principle based upon the separation of powers.

“It’s hard to overstate the importance of the Court’s decision for the law and the economy,” the editorial stated. “Had Mr. Trump prevailed, future Presidents could have used emergency powers [in the IEEPA law] to bypass Congress and impose border taxes with little constraint.”

On the other hand, Trump has argued, in defense of the IEEPA-based tariffs he imposed, that the chronic U.S. trade deficit is a true financial emergency serious enough to justify tariffs on any country that engages in a significant amount of trade with the United States.

Trump has also claimed that the government revenue generated by his tariffs has been so large that it may be able to substitute, to some extent, the federal income tax, or alternatively, provide the money to finance sending $2,000 dividend checks to every American taxpayer. The Trump administration reported that as of December 10 last year, the IEEPA-based tariffs had generated $129 billion in revenue for the federal government.

The Supreme Court’s Ruling Against Trump’s Tariffs Was Not a Surprise

Meanwhile, widely quoted media legal authority Jonathan Turley wrote in The Hill that while the Supreme Court’s decision to strike down Trump’s tariffs was a disappointment that angered the president, it could not have come as much of a surprise.

“Many of us [in the legal profession] predicted that the administration would lose this fight,” Turley wrote. “That view was reinforced after oral arguments [in the Supreme Court last November], when a majority of justices raised possible reasons why the president might not possess this power [to impose tariffs unilaterally].”

In Turley’s opinion, the three conservative justices who ruled against Trump’s tariffs were only being consistent with the approach that they had taken in prior Supreme Court cases, which involved the Major Questions doctrine.

The Georgetown University law school professor also believes that there are “good-faith arguments on both sides” of the dispute over the validity of the Major Questions doctrine, and that all six of the conservative justices voted on the tariff issue “based on what they believed was demanded by the Constitution… regardless of the political or practical repercussions.”

The Conservative Justices Have Proven Their Impartiality

The Wall Street Journal editorial made a similar point when it noted that the decision by three of the conservative justices to join the three liberal justices in striking down Trump’s tariffs “gives the lie to the Democratic charge that the current [conservative-dominated] Court is a rubber stamp for Mr. Trump. The Court has now shown it is willing to block abuses of executive power by Presidents of both parties. This is exactly what the Constitution calls on the Justices to do.”

“By ruling against this president on his signature economic issue,” the editorial declared, “at least three of the court’s six conservative justices have proven that assertion to be false, and that they are judges first and conservative partisans second, if at all.

In the end, Turley notes that regardless of the Supreme Court decision, Trump’s tariffs are not going away. The decision only means that Trump will now have to rely on other pieces of tariff legislation passed by Congress that have more strings attached to them. But he can still use them to pursue the same goals, “such as securing greater market access [for American companies] and other concessions from foreign governments.”

The Democrat Threat to the Supreme Court’s Integrity

Finally, Turley adds that, “What is most striking is how the very people [Democrats] calling to pack the Supreme Court are celebrating this decision. The court has once again shown that it continues to exercise independent judgment on important questions. Yet figures from [Obama administration attorney general] Eric Holder and various liberal pundits will continue to demand court-packing as soon as Democrats retake control of Congress. The tariff decision exposes the dishonesty of their plan. . .

“It is all about power and radically changing our political system. It does not matter that the Supreme Court continues to rule unanimously or near-unanimously in most cases. It also does not matter that the court continues to rule both for and against the president based on the precedent, not the politics, of cases.”

Turley argues that the tariff “decision is one of the most resounding demonstrations of the court’s continued independence.” But he also warns that “if these Democratic politicians and pundits have their way, that independence may not last much longer.”