OPINION:
Last week, the Supreme Court held in Learning Resources v. Trump and Trump v. V.O.S. Selections that the president’s sweeping tariffs imposed under the International Emergency Economic Powers Act exceeded the authority granted to him by that statute.
This decision is an important (but far from a total) victory for Americans and the Constitution.
Because different justices can reach the same decision for different reasons, only the reasons that a majority of justices agree on are controlling.
In the court’s Learning Resources decision, six justices agreed that the law does not grant the president the power to impose tariffs. However, the administration has already threatened to impose the tariffs under different statutes.
On Dec. 3, Commerce Secretary Howard Lutnick told CNBC, “If … the Supreme Court didn’t side with the president, which I think they will, then we have other tools, and we’ll put them right in place. Tariffs are here to stay.”
This was after he had “declare[d] under penalty of perjury” to the Court of Appeals for the Federal Circuit, “Without the viability of IEEPA tariffs, the United States would be weakened and would lose the essential tool to address” the supposed national emergency.
The administration’s true position is clear. It will attempt to reimpose its tariffs through other statutes.
Justice Brett M. Kavanaugh, joined by Justices Clarence Thomas and Samuel A. Alito Jr., signaled support for that plan. He wrote that the court’s “decision might not substantially constrain a President’s ability to order tariffs going forward.”
He is correct on that point. Because the only part of the decision that received majority support was the court’s reading of IEEPA, the court’s decision in this case will likely do little to constrain the president’s use of other statutes.
As a result, this court decision is likely, at most, only the end of the beginning.
The decision should have been unanimous. The Constitution vests the power to tax, which includes the power to impose tariffs, solely in Congress. That power cannot be given to the president. Otherwise, the Constitution’s separation of the government’s powers, which is essential to preserving liberty against the whims of those in power, amounts to nothing.
Instead of saying so, the court kicked the can down the road, leaving Americans exposed to further presidential whimsy. If the president’s tariffs are to be reined in for good, either the court will have to come to a more definite conclusion in some future case (which would likely take another year or more to wind its way through the system) or Congress will have to reclaim its authority by a veto-proof two-thirds majority vote.
However, that’s unlikely to happen. Congress barely mustered a majority to ineffectively reject the president’s tariffs on Canada. If conservatives in Congress want to preserve the Constitution’s structure, about which they always care so much during liberal administrations, then they will have to hold their noses and put principle over party.
Justice Neil M. Gorsuch’s lone concurrence was by far the best opinion in the case. He concluded, “Through [the legislative] process, the Nation can tap the combined wisdom of the people’s elected representatives, not just that of one faction or man. … And because laws must earn such broad support to survive the legislative process, they tend to endure, allowing ordinary people to plan their lives in ways they cannot when the rules shift from day to day.”
The rule of law is essential to American greatness. Legislating is difficult by design — not for difficulty’s sake but because restrictions on the liberty of the people must not be imposed carelessly.
Whether Americans love tariffs or not (and polls show that they overwhelmingly do not), they should all bristle at the thought of rule by one man and not the law. American liberty cannot endure if they do not.
• J. Marc Wheat is general counsel at Advancing American Freedom.
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