Trump’s Tariffs
Learning Resources v. Trump
Trump v. VOS Selections
https://www.supremecourt.gov/opinions/25pdf/24-1287_4gcj.pdf
Last spring President Trump issued a series of executive orders imposing wide ranging and extensive tariffs on imported goods. They have damaged the US economy and added to the financial burdens on US consumers and vast uncertainty for American businesses. https://taxfoundation.org/research/all/federal/trump-tariffs-trade-war/ They took the US from its historic roles as a reliable global trading partner, espousing free and fair trade with low tariffs to an erratic, untrustworthy and unreliable protectionist trading partner with high tariffs.
Chief Justice Roberts points out Trump’s constantly changing rules on tariffs that have made it so hard on American businesses to plan and run their business affairs. “Since imposing each set of tariffs, the President has issued several increases, reductions, and other modifications. One month after imposing the 10% drug trafficking tariffs on Chinese goods, he increased the rate to 20%. See Exec.Order No. 14228, 90 Fed. Reg. 11463 (2025). One month later, he removed a statutory exemption for Chinese goods under $800. Exec. Order No. 14256, 90 Fed. Reg. 14899 (2025). Less than a week after imposing the reciprocal tariffs, the President increased the rate on Chinese goods from 34% to 84%. Exec. Order No. 14259, 90 Fed. Reg. 15509 (2025). The very next day, he increased the rate further still, to 125%. Exec. Order No. 14266, 90 Fed. Reg. 15625, 15626 (2025). This brought the total effective tariff rate on most Chinese goods to 145%. The President has also shifted sets of goods into and out of the reciprocal tariff framework. See, e.g., Exec. Order No. 14360, 90 Fed. Reg. 54091 (2025) (exempting from reciprocal tariffs beef, fruits, coffee, tea, spices, and some fertilizers); Exec. Order No. 14346, 90 Fed. Reg. 43737 (2025). And he has issued a variety of other adjustments. See, e.g., Exec. Order No. 14358, 90 Fed. Reg. 50729, 50730 (2025) (extending “the suspension of heightened reciprocal tariffs” on Chinese imports).”
The specialty federal courts for international trade disputes decided that IEEPA, the federal statute that Trump relied on for his tariffs, does not in fact include the word tariffs or any of its pseudonyms. Therefore, the tariffs are illegal. The Supreme Court affirmed that decision on a 6-3 vote. I would have expected it to be 9-0 or 7-2. It’s worth looking at their reasoning.
For the three liberals, it’s a very easy decision. 1) Congress, not the President, has taxing authority under the US Constitution. 2) The statute in question does not say taxes, tariffs, duties or any other equivalent. Instead, it says “regulate … importation.” 3) In the other federal statutes authorizing tariffs, Congress said “Tariffs.” Easy decision, Trump must rely on the other statutes that place time limits, amount limits, finding requirements and other rules and conditions governing the imposition of tariffs on imported goods.
For the three conservatives in the majority, it’s an easy decision; the word “tariffs” or its equivalent does not appear in the statute, and this is a “major question” that Congress, the Constitutionally designated law making and taxing body has to first consider and approve.
For three other dissenting conservatives, they point out that Congress has often delegated the taxing and regulating of foreign commerce to the President. They contend that “regulating foreign commerce” in the IEEPA statute encompasses taxing foreign commerce, since that is a less draconian remedy than banning imports or setting quotas on imported foreign goods. They give long detailed histories of Congress delegating to the President the hard work of regulating and taxing foreign commerce and working out trade agreements with our trading partners and adversaries. In my opinion, reciting the historical record of American tariffs is no substitute for Congress using the word “tariff” in the statute in question, a statute that has never ever been used by any other President to impose “taxes/tariffs” on foreign goods.
There is a lot said and a lot left unsaid in these opinions. Much of the debate is about the “major questions” doctrine, which held that Congress (the Constitutionally designated law making and taxing body) not the Executive branch, must make most major policy decisions. It was used by the Court’s conservatives to invalidate much Biden era rulemaking on reducing massive student debt, phasing out coal fired greenhouse gas emitting power plants, and implementing unprecedented public health responses to the deadly Covid 19 pandemic, such as vaccine mandates or eviction moratoriums. The court’s more liberal justices rejected the “major questions” doctrine then and now, saying it’s simply a new unfounded rule made up by the court’s conservatives to invalidate Democratic policy initiatives emanating from the Executive branch. They declined to apply it to Trump’s tariffs which upended decades of US free and fair-trade policies in global commerce and replaced them with protectionist high tariffs, citing non-existent emergencies of fentanyl importation from Canada and decades long recurrent balance of payments deficits with many nations.
Justice Gorsuch defended the “major questions” doctrine saying it had many centuries of precedent going back to English common law principles. Justice Barrett said the “major questions” doctrine was simply applying common sense in interpreting whether federal executive agencies were adhering to the framework of federal statutes being implemented. Dissenting Justice Kavanagh issued a lengthy paean to tariffs from the nation’s founding to the present day, grounding his dissent in the Presidential preeminent roles in the nation’s foreign policy.
None of them really discussed the key issues that I think underly the tariff disputes. 1) The US has been in long standing decline in manufacturing, which largely accounts for our balance of payments deficits. 2) Trump has been relentlessly corrupt, dishonest, misguided, and unaccountable. 3) Congress has been unable to gather bi-partisan consensus to rein him in or in fact do much of anything productive. 4) Trump has been undoing much of the good work of his predecessors in re-igniting US manufacturing prowess.
1) The US was the world’s manufacturing powerhouse after World War II. It has declined in autos, iron, steel, appliances and many other manufacturing sectors as compared to emerging competitors from Japan, Germany, China, Taiwan, Mexico, and South Korea. A part of the problem was the high costs and increasingly poor quality of US manufacturers, previously renowned for their high quality, well-engineered products. Another problem was the lack of innovation and business investments in improving the productivity of American manufacturing. Yet another was a misguided focus on short term financial fixes to make Wall Street stock markets happy, as opposed to well-developed engineering solutions on the factory floors that actually do the building. The US invented for example solar technologies and modern wind turbines and electric vehicle batteries, yet it has been the Chinese who have built and deployed them at scale. In the distant past of the 19th Century, the US protected its growing industries with high tariffs from the competition of the then industrial powerhouse England. Trump now seeks both to protect declining American industries from foreign competition with high tariffs and other restrictive measures, while stifling the development of new, vital and emerging industries in the US, such as solar, wind, or electric vehicles.
2) Trump’s corruption has been unparalleled in recent memory. https://oversightdemocrats.house.gov/news/press-releases/ranking-member-robert-garcia-releases-damning-new-report-highlighting-trump-family-corruption-launches-trump-digital-grift-tracker and https://campaignlegal.org/sites/default/files/2025-11/CLC_Corruption_Tracker_Nov20.pdf. He has already extensively used his hitherto unchecked ability to impose tariffs under IEEPA to benefit Trump family businesses and associates. https://www.youtube.com/watch?v=5z4ik5DfZyU He has gone so far as trying to block a new bridge connecting Detroit Michigan and Windsor, Canada to satisfy a campaign contributor whose existing bridge might lose its toll revenues due to the improvements in transportation between our two nations. https://www.cbc.ca/news/canada/windsor/trump-moroun-donation-bridge-maga-gordie-howe-ambassador-9.7102454 Why would any judge or justice (let alone three of them) want to give Trump, a President with this kind of track record complete control over import tariffs with every other nation in the world?
3) Justice Gorsuch and Chief Justice Roberts laid special emphasis on the vital Constitutional role of Congress in enacting tariffs and their concerns that this responsibility would otherwise be permanently usurped by the power-hungry executive branch and its agencies. On the other hand, this Congress has not exactly shown itself worthy of their confidence. It has been unable to negotiate bi-partisan compromises on the issues important to the American people. The only bi-partisan accomplishment of any note is prying open the disclosures in the Epstein files that Trump and Bondi fought so steadfastly to conceal from the public’s view. Congress has been largely supine in the face of Trumpian assaults on issues from health care to energy, from voting to climate change, from vaccine deployment and development to science funding, from immigration to culture, from tearing down the East Wing to renaming and shutting down the Kennedy Center, from approving incompetent nominees to vital posts to cutting funding of health and social programs so vital to the survival of American families of modest incomes. It has not covered itself with glory at a moment in our country’s history where an effective and strong independent Congress is vital to the survival of American democracy and our nation’s values.
4) It is more than appropriate for each newly elected Executive to put their own stamp on American governance, and to improve upon the important work of its predecessors. That is how we make progress and build our country. For example, Obama developed affordable coverage for many uninsured Americans, rescued the financial industry from its excesses that threatened to bring down the global economy, and rescued the US auto industry and set it on a better path. https://knowledge.wharton.upenn.edu/podcast/knowledge-at-wharton-podcast/auto-bailout-ten-years-later-right-call/ Biden improved upon Obamacare, funded badly needed infrastructure improvements, and supported the growth and capacity of the solar, EV and other industries which reduce the hazards of global warming. There is so much that Trump could be doing to build upon their progress; he is not and has not. Rather he has been taking a wrecking ball to American society, the American economy, our deep relations with allies and neighbors, our public’s health, our justice system, our history, our families, our cities, our top universities, our scientific communities, and our daily relations with our fellow Americans. Fomenting societal hatred, sowing fear, sending heavily armed and armored ICE agents, the National Guard and the Marines into American cities and enhancing daily division is a building block only towards the ultimate destruction of all we hold dear in this beautiful country and the diverse dynamic nation that we are all so very fortunate to live in.