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Are the Supreme Court’s conservative justices just a rubber stamp for President Trump, virtually always willing to approve his actions? Or will the justices follow consistent, albeit conservative, principles, even if it means ruling against the world’s most powerful man? We will get a clear indication when the court convenes on Wednesday to hear two cases concerning the legality of the tariffs imposed by the president.
At this point, it’s estimated that about $1 trillion in tariffs has already been collected. Trump has said that their invalidation “would be a total disaster for the country” and might “literally destroy the United States of America.” In its brief to the Supreme Court, his administration noted that, to the president, “these cases present a stark choice: With tariffs, we are a rich nation; without tariffs, we are a poor nation. ‘Suddenly revoking the President’s tariff authority under the [International Emergency Economic Powers Act],’ he warns, ‘would have catastrophic consequences for our national security, foreign policy, and economy.’”
But the issue before the court — argued in Learning Resources Inc. vs. Trump and in Trump vs. V.O.S. Selections — is not whether the tariffs are desirable. Rather, the legal question is one of statutory interpretation: whether the IEEPA, a law adopted in 1977 under President Carter, authorizes Trump to impose tariffs via executive order.
Conservative justices have long embraced textualism and stressed that laws should be interpreted based on plain meaning. The IEEPA, though, doesn’t actually mention tariffs in its text. It only authorizes the president to “regulate” importation in order to “deal with any unusual and extraordinary threat.”
As the Court of Appeals explained in striking down the tariffs back in August, “when drafting IEEPA, Congress did not use the term ‘tariff’ or any of its synonyms.” Instead, it added, “where Congress intends to delegate to the President the authority to impose tariffs, it does so explicitly, either by using unequivocal terms like tariff and duty, or via an overall structure which makes clear that Congress is referring to tariffs.”
No other president in the last 50 years has interpreted this statute as providing authority over tariffs. The challengers argue to the Supreme Court that there is a fundamental difference between giving the president the authority to regulate importation and bestowing on them a power to tax. The IEEPA applies during an “emergency” and only Trump sees one.
In recent years, the Supreme Court’s conservative justices have repeatedly ruled that the executive branch of the federal government cannot act on a major question of economic or political significance without clear authority from Congress. For example, in 2023, in Biden vs. Nebraska, the court, ruling 6-3 with the conservative justices in the majority, struck down the Biden administration’s student loan relief program. Even though a federal statute allowed the secretary of Education to “waive or modify” student loan debt, the Court said that this was a “major question” and that Congress had not provided sufficiently clear authority for the student loan relief. The IEEPA provides even less authority to the president to impose tariffs.
Nor does the Constitution support Trump’s power to create these tariffs. The text of the Constitution and its original meaning are clear: Only Congress has the power to impose tariffs. Article I, Section 8 explicitly states that “The Congress shall have the power to lay and collect taxes, duties, imposts and excises,” as well as to “regulate commerce with foreign nations.” And tariffs are simply taxes charged on goods bought from other countries
Trump’s primary response to all this is that courts cannot review his choice to impose tariffs. Solicitor General John Sauer’s brief to the Supreme Court argues that “the President’s determinations in this area are not amenable to judicial review. Judges lack the institutional competence to determine when foreign affairs pose an unusual and extraordinary threat that requires an emergency response; that is a task for the political Branches.”
This is the same argument Trump is making regarding his authority to deploy troops in U.S. cities: No court can review his actions. But long ago, in Marbury vs. Madison in 1803, the Supreme Court ruled that federal courts can review the actions of the president to ensure said actions are constitutional and legal. The court stressed that no one, not even the president, is above the law and that there must be judicial review of presidential actions or else the limits of the Constitution are rendered meaningless.
The two tariff cases before the Supreme Court this week should thus be easy ones, including for the conservative justices. But will they follow the law and their traditional approaches to it, or are they just a rubber stamp for Team Trump?
Erwin Chemerinsky, dean of the UC Berkeley Law School, is an Opinion Voices contributing writer.
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Ideas expressed in the piece
The Constitution explicitly grants only Congress the power to impose tariffs under Article I, Section 8, providing that “The Congress shall have the power to lay and collect taxes, duties, imposts and excises” and to regulate foreign commerce, vesting this power exclusively in the legislative branch[3][4].
The IEEPA statute does not contain the words “tariff” or “tax” in its text and only authorizes the president to “regulate” importation to “deal with any unusual and extraordinary threat,” a distinction that courts have identified as fundamental to statutory interpretation[2][3].
No other president during IEEPA’s 50-year history has invoked this statute for tariff authority, establishing a consistent pattern that undermines the administration’s novel interpretation of the law[1][2].
The Supreme Court’s conservative justices have repeatedly emphasized that major questions of economic and political significance require clear congressional authorization, as exemplified by their 6-3 decision in Biden v. Nebraska striking down the student loan relief program despite broader statutory language, and IEEPA provides even less explicit authority for tariffs[5].
The administration’s contention that courts lack authority to review the president’s determination of national emergencies directly contradicts the Supreme Court’s foundational principle in Marbury v. Madison that judicial review is essential to ensure the president remains subject to law and constitutional limits.
Different views on the topic
The Department of Justice maintains that courts should refrain from questioning whether the president’s stated conditions constitute a national emergency, asserting that judges lack the institutional competence to evaluate foreign affairs threats and that presidential emergency determinations should not be subject to judicial review[1].
The administration argues that the word “regulate” in IEEPA carries sufficiently expansive meaning to encompass tariff authority and contends that Congress has long granted presidents broad power to employ tariffs to address emergencies[2][3].
The trade deficit has reached what officials describe as a critical threshold comparable to pre-crisis economic warning signs, thereby satisfying the statutory requirement of an “unusual and extraordinary threat” justifying emergency action[1].
The solicitor general’s brief contends that the major-questions doctrine does not apply to IEEPA’s tariff authority because the statute addresses foreign-policy emergencies, which represent “the most major of major questions” and counsel a broader reading of congressional delegation to the president[2].
The administration maintains that courts should defer to the president’s national security judgment in foreign affairs matters and that the president’s tariff determinations constitute legitimate exercises of foreign policy authority beyond the appropriate scope of judicial review[1][3].
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