Supreme Court’s Reputation On the Line With Trump Tariff Case

President Donald Trump’s world-wide tariffs have been deemed illegal and unenforceable. The US Court of Appeals for the Federal Circuit decided 7-4 that Trump exceeded his powers in trying to use wildly gyrating tariffs on US importers in attempting to influence the actions of both friendly and hostile governments.

Soon, the US Supreme Court is expected to face one of the most important challenges in recent history.

At stake isn’t just the fate of the president’s worldwide tariff battle but the preservation of one of our Constitution’s core doctrines—the separation of powers among the three branches of our government.

Trump has used a flurry of executive orders to initiate a wide variety of programs of dubious constitutional validity. The lower federal courts have been vigilant in responding to the abuse of power that some of these orders represent, but the Supreme Court has appeared reluctant to confront him.

This has spawned criticism about whether the justices are abdicating their constitutional duty in order to advance Trump’s political agenda. How the Supreme Court responds to the tariff ruling will provide an answer to that question.

Trump claims Congress gave him the power to set tariff rates via the International Emergency Economic Powers Act. The law allows the president, in cases of national emergency, to “regulate” the “importation” of property. As the two courts specializing in tariff cases have now held, this claim is fatally flawed.

Congress, not the president, has legislative power to “lay and collect Taxes, Duties, Imposts and Excises” under the Constitution, as part of its responsibility to decide how to “regulate Commerce with foreign Nations.” And Congress hasn’t tried to transfer this authority to any president.

The Supreme Court has insisted for more than a century “that Congress cannot delegate legislative power to the president,” and this principle is “vital to the integrity and maintenance of the system of government ordained by the Constitution.”

While the high court has allowed Congress to deputize the president and executive branch subordinates to perform some regulatory functions, the majority of the current court has repeatedly recognized constraints on the ability to delegate congressional authority.

The court has determined that the executive branch can’t even claim to have received delegated legislative power involving issues of “major” economic consequence unless Congress made its intent to do so unambiguously clear.

Chief Justice John Roberts explained the “major questions doctrine” in West Virginia v. EPA, when the court struck down President Barack Obama’s Environmental Protection Agency regulations of pollution from the nation’s coal-fired electricity plants.

When the executive branch asserts regulatory power carrying broad “economic and political significance,” the court won’t treat general statutory language as signifying Congress “meant to confer such authority.”

To invoke broad authority normally entrusted to Congress under the Constitution, the president “must—under the major questions doctrine—point to ‘clear congressional authorization’ to regulate in that manner.”

The breadth of the authority Trump is asserting to rewrite and escalate all of the nation’s tariffs, which would directly burden more than $2 trillion in imports from scores of countries, must fall in the absence of any clear statement that the vague power to “regulate” imports deliberately transfers congressional authority.

Even if Congress intended to give the president that authority, the attempt would fail because it runs afoul of the non-delegation principle.

In case after case, the current conservative majority has ruled that the separation of powers underpinning the Constitution precludes Congress from delegating its legislative power to the executive branch. Justices Clarence Thomas, Neil Gorsuch, and Samuel Alito have been the most vocal in insisting on enforcing separation of powers.

In Department of Sanitation v. Association of American Railroads, Thomas wrote separately to emphasize that this devotion to the separation of powers is, in part, what supports our enduring conviction that the Vesting Clauses are exclusive and that the branch in which a power is vested may not give it up or otherwise relocate it.”

Similarly, in the West Virginia v EPA case, Gorsuch and Alito insisted that “permitting Congress to vest its legislative power in the Executive Branch would dash [this] whole scheme,” and that “legislation would risk becoming nothing more than the will of the current President.”

Nothing in recent cases suggests that any member of the court would sustain the wholesale transfer of the power to set tariffs to the president. The three liberal justices already have expressed outrage at the president’s use of executive orders, and the conservative majority is firmly committed to the separation of powers. On this record the only principled result is to uphold the ruling that the worldwide tariffs are unconstitutional. None of Trump’s executive orders are as clearly unconstitutional as his tariffs.

While many orders reflect an unconstitutional abuse of power, as numerous lower courts have held, they at least have a modicum of relationship to a presidential power—for example, flexing the power to control access to security clearances by using it to punish lawyers who had been involved in investigating Trump. There isn’t even such a flimsy reed to sustain the claim that the president may set tariffs.

The Supreme Court must adhere to its own precedents and declare, swiftly and definitively, that the president’s actions are unconstitutional and the tariffs can’t be enforced.

For the court to uphold the tariffs, or even keep them in effect until it can reach the merits under its normal schedule sometime next year, would demonstrate it isn’t willing to perform its constitutional duty.

With the court’s public approval dropping below 40% for the first time, large portions of the population believe the justices are acting on political preference, not on legal principles. If the justices disregard their prior warnings about the danger of vesting the president with legislative power and allow him to continue his illegal tariff campaign, they will give their critics ample basis for charging them of simply being politicians who will do anything to support Trump.

Of greater concern, upholding Trump’s tariffs would signal that the Supreme Court isn’t willing to perform its essential constitutional function to balance the president’s power with those of the two other branches of government. It would confer on Trump more power than any earlier president has ever exercised and place our constitutional form of government at serious risk.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

John S. Martin is a former US attorney and retired US district judge for the Southern District of New York.

Philip Allen Lacovara is the former deputy solicitor general of the US, was counsel to the Watergate special prosecutor, and president of the District of Columbia Bar.

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