In a high-profile Supreme Court decision, the easy takes are always about the people involved:
- The Supreme Court standing up to President Donald Trump, with Justices Neil Gorsuch and Amy Coney Barrett striking down the pet policy of the president who appointed them.
- Justices Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson, winning one for the Resistance.
- President Donald Trump himself, whose personal emotional reaction seems more important to some writers than the actual ruling.
And there’s a place for all that. It matters for the country what the justices think of Trump, what Trump thinks of the court and which moves each branch makes in the game they’ve been playing since last January.
But if you want to know whether the court got the tariffs case right, none of that is the least bit helpful. The difference between “Supreme Court shoots down Trump overreach” and “Supreme Court overreaches” isn’t a question of loyalty or courage or even whether the tariffs are good or bad for the economy — it’s whether the tariffs were actually legal.
And if anyone’s telling you that question has an easy, obvious answer that no one in good faith can disagree with, then I’d like to persuade you that they’re wrong.
The International Emergency Economic Powers Act says that, in emergencies, the president can “regulate … importation.” At one level, this was a fight over whether to read these two words together or separately.
Roberts’ majority opinion reads them separately and focuses on “regulate.” Regulating and taxing are different: regulations tell people how to behave, while taxes take people’s money to fund the government; tariffs sit firmly on the money-taking side.
Justice Brett Kavanaugh’s dissent interprets the two words together and asks: When Congress passed the law, did people understand “regulating importation” to include tariffs? He makes a good case that they did: When Congress passed the statute, it would have known about then-recent court cases upholding tariffs imposed by Presidents Richard Nixon and Gerald Ford — tariffs imposed under statutes with similar language.
So, if the words leave room to disagree, what’s next? The justices turned to the big principles — the background rules of how the law and Constitution are supposed to work. But here again they found plenty to disagree about.
The majority’s big principle is that Congress writes the tax laws. It’s right there in the text of the Constitution (“Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises”).
In fact, both the English Civil War and the Revolutionary War were fought partly over attempts to impose taxes without legislative consent, as Akhil and Vikram Amar argue at SCOTUSblog.
And even if Congress did delegate taxation power like the Trump administration claimed, that move might not even be constitutional. Conservatives have long tried to reinvigorate the “nondelegation doctrine” that limits Congress’ ability to give its powers to the executive.
Given the enormous economic and constitutional implications of giving the president a free hand to impose tariffs, shouldn’t we expect Congress to do it explicitly, and not hide an open-ended taxing power in the word “regulate”?
No, writes Kavanaugh. His big principle is that the president has power over foreign affairs, so tariffs are different from normal taxes. And here again, Kavanaugh has some history on his side: the Ford and Nixon tariffs, and the statutes they relied on, all descended from narrower wartime tariffs that presidents imposed unilaterally in the 1840s, 1860s and 1890s — all of them upheld by the Supreme Court.
Thus, he argues, Congress expanding the wartime tariff power to cover peacetime emergencies was neither surprising nor constitutionally suspect.
At this point, you have two options.
Option 1: You can do a lot of work to evaluate both sides’ arguments — check their sources, see where their parries don’t quite meet the thrust of the other side’s arguments, and so on — until you finally pick a side, knowing even then that there are parts of the case you’re still not quite sure about.
That’s the option the justices had to take, and that’s why announcing the decision took three and a half months.
But for those of us who don’t have three and a half months, there’s Option 2: Just pick the side you find most persuasive and then switch back to talking about people and politics and narratives.
Before you do, though, spend some time reading the opinions, and I think you’ll come away impressed. If you’re a tariff skeptic, I’d recommend starting with Kavanaugh’s dissent, before turning to Justice Clarence Thomas’ argument that, at the founding, tariffs were seen as an essentially executive power rather than a legislative one.
If you’re convinced the majority are just cowards or hate the country, start on Page 5 of the majority opinion, which cites the Constitution and various founders (Alexander Hamilton, James Madison, John Marshall) to argue that the taxing power is uniquely legislative. And then perhaps turn to Kagan’s concurrence explaining concisely why the International Emergency Economic Powers Act’s “regulate importation” language doesn’t authorize tariffs.
Wherever you start, finish by reading Gorsuch’s thrown gauntlet of a concurrence in which he picks fights with literally every other justice except the chief, advancing a theory of statutory interpretation (a version of the major questions doctrine) that I, for one, find very persuasive.
The bottom line: These are not hacks dressing up their personal politics in legalese, a category of justice I’ll admit the country has seen a few times. These are smart people wrestling sincerely with hard problems, and the quality of analysis and writing is worlds better than the court usually managed just 30 years ago.
The Supreme Court is doing its job, and I’m grateful for it.