The Volokh Conspiracy Archive

Yesterday's Supreme Court decision rejecting President Trump's use of the International Emergency Economic Policy Act (IEEPA) to impose tariffs is styled Learning Resources v. Trump. But why?

The tariff case was actually two cases. Learning Resources, which had been filed in a federal district court, and Trump v. V.O.S. Selections, which was filed in the Court of International Trade and then appealed to the U.S. Court of Appeals for the Federal Circuit. One question before the Court was which of these litigation pathways was the right one.

Here is what the Court said on that point in a footnote:

We agree with the Federal Circuit that the V.O.S. Selections case falls within the exclusive jurisdiction of the CIT. The plaintiffs' challenges "arise[] out of " modifications to the HTSUS. 28 U. S. C. §1581(i)(1). Where, as here, such modifications are made under an "Act[] affecting import treatment," 19 U. S. C. §2483, they are "considered to be statutory provisions of law for all purposes," §3004(c)(1)(C). Thus, the plaintiffs' challenges "arise[] out of [a] law of the United States providing for . . . tariffs." 28 U. S. C. §1581(i)(1). For the same reasons, the United States District Court for the District of Columbia lacked jurisdiction in the Learning Resources case.

Based upon this, it seems to me the decision should be captioned Trump v. V.O.S. Selections, not Learning Resources. After all, if the district court lacked jurisdiction in Learning Resources, that case should have been dismissed and the Supreme Court would not have had jurisdiction to review that case on the merits. It did, however, have jurisdiction to reach the merits in V.O.S. Selections, so that is the case on which the Court actually ruled. But that is not what the Court did.

After the Supreme Court ruled (correctly) that the International Emergency Economic Powers Act (IEEPA) does not authorize the imposition of tariffs, President Trump issued remarks on the decision. It was quite something.

Here are some excerpts form the transcript:

The Supreme Court's ruling on tariffs is deeply disappointing, and I'm ashamed of certain members of the court, absolutely ashamed, for not having the courage to do what's right for our country.

I'd like to thank and congratulate Justices Thomas, Alito and Kavanaugh for their strength and wisdom and love of our country, which is right now very proud of those justices. . . .

The Democrats on the court are thrilled, but they will automatically vote no. They're an automatic no, just like in Congress, they're an automatic no. They're against anything that makes America, strong, healthy and great again. They also are a, frankly, disgrace to our nation, those justices. . . .

Others think they're being politically correct, which has happened before far too often with certain members of this court, and it's happened so often with this court — what a shame — having to do with voting in particular, when in fact they're just being fools and lapdogs for the RINOs and the radical left Democrats and, not that this should have anything at all to do with it, they're very unpatriotic and disloyal to our Constitution.

It's my opinion that the court has been swayed by foreign interests and a political movement that is far smaller than people would ever think. It's a small movement. I won by millions of votes, we won in a landslide. With all the cheating that went on, there was a lot of it, we still won in a landslide. Too big to rig.

But these people are obnoxious, ignorant and loud. They're very loud. And I think certain justices are afraid of that. They don't want to do the right thing. They're afraid of it. . . .

I understand how they are very easily swayed. I want to be a good boy. . . .

To show you how ridiculous the opinion is, however, the court said that I'm not allowed to charge even one dollar. I can't charge one dollar, can't charge a dollar. I would have used one penny, but we don't make the pennies anymore. We save money.

Can't charge one dollar to any country under IEEPA, not one dollar, I assume to protect other countries. This must have been done to protect those other countries. Certainly not the United States of America, which they should be interested in protecting. That's what they're supposed to be protecting. . . .

Our country is the hottest country anywhere in the world right now, and it was a dead country one-and-a-half years ago under an incompetent president. But now I'm going to go in a different direction, probably the direction that I should have gone the first time.

But I read the language. I'm very good at reading language, and it read our way 100 per cent. But now I'll go the way I could have gone originally, which is even stronger than our original choice.

As Justice Kavanaugh — whose stock has gone so up, you have to see, I'm so proud of him — wrote in his dissent, "Although I firmly disagree with the court's holding today, the decision might not substantially constrain a president's ability to order tariffs going forward." So think of that, "the decision might not substantially constrain." And it doesn't. He's right. In fact, I can charge much more than I was charging. So I'm going to just start. . . .

And from the Q&A at the press conference:

Question: Mr. President. What will you say to foreign nations who seek to renegotiate their deals? And what did you mean a moment ago when you said that the Supreme Court has been swayed by foreign interests?

Trump: Well, I think that foreign interests are represented by people that I believe have undue influence. They have a lot of influence over the Supreme Court, whether it's through fear or respect or friendships, I don't know. But I know some of the people that were involved on the other side and I don't like them.

I think they're real slimeballs. And, uh, got to do what's right for the country. You got to do what's right for the Constitution. That's why I respect so much, Justice Thomas and Alito, Kavanaugh, because they not only dissented, their dissent is so strong. When you read their dissent, you know, a lot of times you'll read a dissent and it's like, well, you don't know.

It could go either way. There's no other way. The good news is it's like Justice Kavanaugh said, very strongly said, you have other ways you can go. You don't have to go that way. You can go other way. There are numerous other ways you can go. And frankly, this should have been done by presidents many years ago.

They allowed our country to be eaten alive. We lost 50 percent of our car business. We used to make cars. We made all cars. And then Mexico came, Canada came, Japan, and Germany, but they're all coming back now. They're all coming back at record levels. . . .

And on his appointments to the Court:

Question: Mr. President, Justices Gorsuch and Barrett, are you surprised in particular by their decision today?

Trump: I am.

Question: And do you regret nominating them?

Trump: I don't want to say whether or not I regret. I think their decision was terrible. Yeah. I think it's an embarrassment to their families, you want to know the truth, the two of them. Yeah.

Justice Gorsuch's concurrence in Learning Resources v. Trump is something of a Godfather-esque settling of family business. He challenges and critiques all of his colleagues (save for the Chief) and brings receipts. As one would expect, his opinion draws tart responses from other justices (which could explain why it took so long for the Court to release the opinion).

Whatever one concludes about Justice Gorsuch's exchange with Justice Kagan, and whether the progressive justices implicitly adopted arguments embracing the major questions doctrine in this case, he is correct that Justices Kagan and Sotomayor have signed on to MQD-reasoning in the past, he just forgot to include one of the most salient receipts.

In 2015, both Justices Kagan and Sotomayor signed on to Chief Justice Roberts' opinion for the Court in King v. Burwell. Of note, that opinion relied upon MQD reasoning in concluding that Congress had not delegated authority to the Internal Revenue Service to determine whether tax credits would be available in federal exchanges. Here's the relevant passage:

President Donald Trump holds up the chart of "reciprocal" tariffs he pledged to impose on other nations, during an event in the Rose Garden. — Trump announces his "Liberation Day" tariffs. April 2025. (CNP/AdMedia/Newscom)

The Atlantic just published my article (gift link) about the tariff ruling decided by the Supreme Court yesterday, in which I was co-counsel for the plaintiffs in one of the three cases before the justices. The article covers many issues raised by the case, including major questions, nondelegation, implications for the rule of law, and Trump's plan to use Section 122 to impose massive new tariffs. Here is an excerpt:

In a 6–3 decision yesterday, the Supreme Court rightly ruled that, under the International Emergency Economic Powers Act of 1977, the president does not have the power to "impose tariffs on imports from any country, of any product, at any rate, for any amount of time." The ruling is a major victory for the constitutional separation of powers, rule of law, and millions of American consumers and businesses harmed by these tariffs.

This decision spared America from a dangerous, unconstitutional path. Under President Trump's interpretation of the law, the president would have had nearly unlimited tariff authority, similar to that of an absolute monarch. That undermines basic constitutional principles. The Framers of the Constitution had sought to ensure that the president would not be able to repeat the abuses of English kings, who imposed taxes without legislative authorization….

Trump's position had multiple flaws. IEEPA does not even mention tariffs, nor any synonyms such as duties and imposts. The law does authorize the president to "regulate" certain types of international transactions in the event of an "emergency" that amounts to an "unusual and extraordinary threat" to the United States. But the tariff authority and the power to "regulate" foreign commerce are listed in separate clauses of the Constitution. And, as Chief Justice John Roberts noted in his opinion for the Court, the tariff authority is part of the power to tax, an authority the Framers of the Constitution carefully reserved to Congress because they had "just fought a revolution motivated in large part by 'taxation without representation.'" Furthermore, during the previous nearly 50-year history of IEEPA, Roberts continued, "no President has invoked the statute to impose any tariffs—let alone tariffs of this magnitude and scope…."

Three of the justices in the majority—Roberts, Neil Gorsuch, and Amy Coney Barrett—also concluded that the Trump administration's interpretation of IEEPA goes against what has become known as the "major questions" doctrine, which requires Congress to "speak clearly" when authorizing the executive to make "decisions of vast economic and political significance…."

In addition to upholding the separation of powers, the decision is a victory for the rule of law, which requires that major legal rules be clearly established by legislation, not subject to the whims of one person. Since first imposing the Liberation Day tariffs, Trump has repeatedly suspended and reimposed various elements of them. He has also imposed or threatened to impose IEEPA tariffs for a variety of other purposes, such as countering the supposed threat of foreign-made movies, punishing Brazil for prosecuting its former president for attempting to launch a coup to stay in power after losing an election, and most recently castigating eight European nations opposed to his plan to seize Greenland. Such gyrations undermine the stable legal environment essential for businesses, consumers, and investors, and create endless opportunities to reward cronies and punish political adversaries. Studies show that firms contributing to the Republican Party were disproportionately likely to receive exemptions from tariffs imposed during Trump's first term, while firms contributing to Democrats were more likely to have to pay. If allowed to stand, the IEEPA tariffs would have created much greater opportunities for such corruption….

The administration may try to reimpose many of the tariffs using other statutes… But those laws have various constraints that would make it hard for the president to simply impose unlimited tariffs, as he could have done under his interpretation of IEEPA. As Chief Justice Roberts noted in his opinion yesterday, "When Congress has delegated its tariff powers, it has done so in explicit terms, and subject to strict limits…" If Trump or a future president does claim that those other statutes give him unlimited power, tariffs imposed based on any such theory would themselves be subject to legal challenges. Yesterday's decision signals that a majority of the Court is seriously skeptical of claims of sweeping executive tariff authority.

For a compendium of all my writings about the tariff litigation, see here.

From yesterday's decision by Judge Kirk Sherriff (E.D. Cal.) in Johnson v. Fliger (for more on an earlier phase of the case, see here):

Plaintiff Daymon Johnson, a professor of history at Bakersfield College, brings this pre-enforcement challenge seeking injunctive and declaratory relief to preclude officials of Bakersfield College and the Kern Community College District ("KCCD") from enforcing, as to his intended speech, two provisions of the California Code of Regulations. These provisions would require Johnson to employ "teaching, learning, and professional" practices reflecting diversity, equity, inclusion, and accessibility ("DEIA") and anti-racist principles, require Johnson to "establish proficiency in DEIA-related performance to teach, work, or lead within California community colleges," and require defendants to evaluate Johnson based in part on his proficiency in such DEIA principles….

Johnson alleges that the DEIA regulations compel his speech and discriminate against his viewpoint in violation of the First Amendment. He alleges that he fears either being compelled to express a viewpoint with which he disagrees or being punished if he continues to refuse to express defendants' desired viewpoint or if he expresses his contrary views. Johnson has credibly identified specific speech that he reasonably fears would be proscribed by the DEIA regulations. And as the Ninth Circuit has found, he "has established a 'concrete plan to violate the law' based on his allegations regarding his desired speech and his refusal to express support for [DEIA] principles." Johnson v. Fliger (9th Cir. 2025) (quoting Thomas v. Anchorage Equal Rts. Comm'n, 220 F.3d 1134, 1139 (9th Cir. 2000) (en banc)).

Johnson has established that his intended speech, which reflects his opposition to the DEIA regulations and to the state's DEIA policies, concerns a matter of public concern. To the extent the DEIA regulations proscribe and chill Johnson's intended speech in his teaching or scholarship as a professor, in his work with a "dissident faculty" group on campus that opposes the DEIA regulations, or in his capacity as a private citizen or public academic engaging in extracurricular speech, Johnson has a First Amendment interest in such intended speech. See Demers v. Austin (9th Cir. 2014); Reges v. Cauce (9th Cir. 2025). Defendants have failed to demonstrate "a legitimate administrative interest in suppressing the speech that outweigh[s] the plaintiff's First Amendment rights." …

Johnson has failed to establish a likelihood of success on his challenge to Bakersfield College's requirement that he complete mandatory DEIA training as a requirement to participate on faculty screening committees, as the government may express its views through such employee training, and Johnson fails to show that the training requires him to personally endorse the government's views as his own. Nor does Johnson establish that his official capacity speech as a member of Bakersfield College's Equal Opportunity & Diversity Advisory Committee ("EODAC") is protected speech, as it is government speech and he has not established that it is sufficiently connected to scholarship or teaching. See Sullivan v. Univ. of Washington (9th Cir. 2023) (rejecting argument that faculty members serving on state university's animal care and use committee were entitled to First Amendment protection, because they were "not thereby engaged in 'teaching and academic writing'"). Johnson also fails to establish a likelihood of success on his facial challenge to the DEIA regulations, as the DEIA regulations apply to a range of non-speech conduct and Johnson fails to show that they prohibit a substantial amount of protected speech relative to their plainly legitimate sweep….

From the Report & Recommendation in New Moon Reptiles LLC v. Saekow d/b/a DD's Plants, issued by Magistrate Judge Ryon McCabe (S.D. Fla.) on January 22 and approved Tuesday by District Judge Aileen Cannon:

This is a defamation and tortious interference case arising from social media posts. Plaintiffs operate a Florida-based business engaged in the importation, exportation, and sale of reptiles. Plaintiffs allege that Defendant … published false social media posts claiming that Plaintiffs caused the death of certain reptiles by shipping them to a trade show in California under unsafe circumstances that caused their deaths….

Plaintiffs sent a cease-and-desist letter to Defendant in Nevada on October 20, 2025. Defendant responded on October 30, 2025, through counsel, by denying any wrongdoing and refusing to remove the social media posts at issue. By way of the pending motion, Plaintiffs seek entry of an ex parte temporary restraining order ("TRO") that would, among other things:

prohibit Defendant from publishing or republishing statements concerning Plaintiffs, their owners, or their families,

require Defendant to remove previously published social media posts,

enjoin Defendant from encouraging or inciting third-party contact or harassment, and

maintain these restraints through the pendency of the case.

As of the date of this Report and Recommendation, Defendant has not been served or appeared in the case….

Boe v. Garcia, decided Thursday by Eleventh Circuit Judges Robert Luck, Barbara Lagoa, and Andrew Brasher, upheld a district court's denial of pseudonymity in a case where plaintiff is alleging police misconduct. The court, reviewing the district court's denial of pseudonymity for abuse of discretion (the standard of review used by federal courts in such cases), reasoned:

Generally, pleading in federal court must name all the parties. Fed. R. Civ. P. 10(a). But, under certain, highly limited circumstances, we allow plaintiffs to proceed pseudonymously. Indeed, we have held that "parties may use fictitious name[s] only in exceptional case[s]." "The ultimate test for permitting a plaintiff to proceed anonymously is whether the plaintiff has a substantial privacy right which outweighs the customary and constitutionally-embedded presumption of openness in judicial proceedings."

To decide whether privacy trumps publicity, a court must first consider "whether the party seeking anonymity (1) is challenging government activity; (2) would be compelled, absent anonymity, to disclose information of utmost intimacy; or (3) would be compelled, absent anonymity, to admit an intent to engage in illegal conduct and thus risk criminal prosecution." A court must then "carefully review all the circumstances of a given case and then decide whether the customary practice of disclosing the plaintiff's identity should yield to the plaintiff's privacy concerns." "Other factors to consider include [4] whether the party seeking anonymity is a minor or [5] faces a real threat of physical harm absent anonymity" and whether anonymity "[6] poses a unique threat of fundamental unfairness to the defendant."

2/21/1868: President Johnson orders Secretary of War Edwin Stanton removed from office. In Myers v. U.S. (1926), the Supreme Court found that Johnson's actions were lawful.

An excerpt from his Executive Functions post today; note that his and Curtis Bradley's Foreign Affairs, Nondelegation, and the Major Questions Doctrine, 172 U. Pa. L. Rev. 1743 (2004) was heavily cited both by Justice Gorsuch's concurrence and Justice Kavanaugh's dissent:

A very significant aspect of the Chief Justice's [Major Questions Doctrne] analysis is that three conservative justices embraced it to rule against President Trump's signature policy. And they did so in the most difficult possible context, with an issue involving national security and foreign affairs.

This is a rebuttal to those who have claimed that the Court, or at least those three justices, invoke the doctrine opportunistically and politically to hurt Democratic presidents. And I think it signals more clearly than ever that, going forward, this Court is going to view broad delegations of statutory authority to a president to act, and/or extravagant presidential interpretations of authorizations to act, with skepticism. The three justices firmly committed here to the MQD can (if they wish) ensure that outcome in a case of just about any political configuration.

To the extent this is true, it is a hugely important complement to the Court's emerging broad view of the unitary executive. Put another way, it is a vindication of Sarah Isgur's view that the tradeoff on the Court for enhancing vertical unitary presidential control is "for the court to rein in Congress's bad habit of delegating vast and vague powers to the executive branch," including through MQD.

It also puts in a better light the Court's interim orders to date in Trump 2.0, a large number of which, due to the application strategy of the Solicitor General, involved issues of vertical control. The tariff opinion gives the lie to the notion that the Court is in the bag for the president and also makes its approach to issues of presidential power in Trump 2.0 both clearer and more nuanced….

[T]he Trump press conference [following the decision] was an amazing portrait of a president who claims to be unbound by law seethingly acquiescing in a court ruling on "an important case to me" that he abhorred with every fiber of his body. It is clear the administration will use every alternative legal tool at its disposal to replicate or go further in deploying international economic weapons. That is its legal prerogative. But still, Trump's anger combined with his acquiescence in the ruling elevated the Court and was a remarkable testament to its power….

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

Since we prevailed in our tariff case at the Supreme Court today, and even before, I have gotten many questions about tariff refunds. US importers who paid illegally collected IEEPA tariffs are eligible for up to $175 billion in refunds. As I see it, justice requires repayment of every penny - with interest! Administration claims that repayment is too difficult ring hollow. They shouldn't have illegally taken much money in the first place. And, in the litigation in the lower courts, they argued for stays of the injunctions against them on the grounds that - if we won - the businesses victimized by the tariffs would be eligible for refunds once the litigation reached a conclusion.

However, I am not an expert on the tariff refund process. I became involved in this case because of my expertise in constitutional law and issues involving emergency powers. A tariff refund specialist I am not. Thus, I am not the right person to ask about how to get back the illegally collected tariff payments.

However, I would like to refer anyone interested in this issue to an excellent September 2025 Lawfare article by Joshua Claybourn. Josh helped organize some important amicus briefs for our case, and - unlike me - he really does have expertise on the issue of refunds. His article provides a valuable overview of the tariff refund process. Here is an excerpt from it:

This piece examines the core legal obligation of the U.S. government to refund unlawfully collected tariffs, including (a) the statutory framework under 19 U.S.C. § 1514, governing the finality and correction of Customs and Border Protection (CBP) decisions; (b) judicial precedents confirming the government cannot retain illegally exacted duties; (c) administrative mechanisms available for importers seeking tariff refunds; and (d) procedural implications arising from recent and historical court decisions mandating refunds.

There is a strong legal basis for importers to recover duties unlawfully collected under IEEPA. However, importers must comply with statutory deadlines and administrative procedures—such as timely protests or claims—to preserve refund rights. The government's obligation to refund such amounts, along with any applicable interest, will arise once courts definitively invalidate these tariffs, subject to any procedural bars under 19 U.S.C. § 1514.

Finally, I should note that - as of today - I am no longer involved in the tariff litigation as an attorney (my part of the case is over), and thus have no plans to be involved in refund litigation.

as analyzed by Justice Kagan's concurrence in today's tariff decision:

As the principal opinion explains, "regulate" is one of 9 verbs listed in IEEPA's delegation provision. (The others are "investigate," "block," "direct," "compel," "nullify," "void," "prevent," and "prohibit.") Those verbs are followed by 11 objects, each describing a distinct sort of transaction involving foreign property—not just "importation," but also "acquisition," "use," "transfer," and so forth. Combine the verbs and objects in all possible ways, and the statute authorizes 99 actions a President can take to address a foreign threat. And exactly none of the other 98 involves raising revenues.

(Justice Kagan concludes that, therefore, the 99th combination, "regulate" "importation," doesn't authorize raising revenue, either.)

A prediction from the conclusion of Justice Gorsuch's concurrence in the tariffs decision:

For those who think it important for the Nation to impose more tariffs, I understand that today's decision will be disappointing.

All I can offer them is that most major decisions affecting the rights and responsibilities of the American people (including the duty to pay taxes and tariffs) are funneled through the legislative process for a reason. Yes, legislating can be hard and take time. And, yes, it can be tempting to bypass Congress when some pressing problem arises. But the deliberative nature of the legislative process was the whole point of its design.

Through that process, the Nation can tap the combined wisdom of the people's elected representatives, not just that of one faction or man. There, deliberation tempers impulse, and compromise hammers disagreements into workable solutions. 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.

In all, the legislative process helps ensure each of us has a stake in the laws that govern us and in the Nation's future. For some today, the weight of those virtues is apparent. For others, it may not seem so obvious. But if history is any guide, the tables will turn and the day will come when those disappointed by today's result will appreciate the legislative process for the bulwark of liberty it is.

Another nicely crafted passage from Justice Gorsuch's concurrence today in the tariff case, further defending the "major questions doctrine"—the principle that "ambiguous language" in a statute shouldn't be seen as delegating "highly consequential power" to the Executive Branch, even if it can be read as delegating lessers power:

Another feature of our separation of powers makes the major questions doctrine especially salient. When a private agent oversteps, a principal may fix that problem prospectively by withdrawing the agent's authority. Under our Constitution, the remedy is not so simple. Once this Court reads a doubtful statute as granting the executive branch a given power, that power may prove almost impossible for Congress to retrieve. Any President keen on his own authority (and, again, what President isn't?) will have a strong incentive to veto legislation aimed at returning the power to Congress.

Perhaps Congress can use other tools, including its appropriation authority, to influence how the President exercises his new power. Maybe Congress can sometimes even leverage those tools to induce the President to withhold a veto.

But retrieving a lost power is no easy business in our constitutional order. And without doctrines like major questions, our system of separated powers and checks-and-balances threatens to give way to the continual and permanent accretion of power in the hands of one man. That is no recipe for a republic.

A nicely crafted passage from Justice Gorsuch's concurrence defending of the "major questions doctrine" (the principle that "ambiguous language" in a statute shouldn't be seen as delegating "highly consequential power" to the Executive Branch, even if it can be read as delegating lesser power) in today's tariffs case. And here are the two following sentences:

We delude ourselves, too, if we think that power will accumulate safely and only in the hands of dispassionate "people … found in agencies." Even if unelected agency officials were uniquely immune to the desire for more power (an unserious assumption), they report to elected Presidents who can claim no such modesty.

Today, the Supreme Court decided our case challenging Donald Trump's massive IEEPA tariffs. In a 6-3 decision, Court rightly ruled that the International Emergency Economic Powers Act does not give the President the power to "impose tariffs on imports from any country, of any product, at any rate, for any amount of time." It's a major victory for the constitutional separation of powers, for the rule of law, for free trade, and for the millions of American consumers and businesses enduring higher taxes and higher prices as a result of these tariffs.

Our case was filed by Liberty Justice Center and myself on behalf of five small US businesses. We were later joined by prominent Supreme Court litigators Michael McConnell and Neal Katyal. Michael became our chief counsel for the Supreme Court phase of the litigation, and Neal skillfully conducted the oral argument before both the Federal Circuit and the Supreme Court. A case that had its origins in a blog post laying out some legal theories and another one recruiting potential clients went all the way to the Supreme Court and culminated in an important victory. Earlier, we prevailed in the US Court of International Trade (the trial court with jurisdiction over cases involving trade policy) and again in the US Court of Appeals for the Federal Circuit.

Chief Justice John Roberts wrote the opinion for the Court, which concludes that IEEPA's grant of authority to "regulate" importation in response to an emergency that qualifies as an "unusual and extraordinary threat" to the US economy, national security, or foreign policy, does not include the power to impose tariffs. He, Justice Neil Gorsuch, and Justice Amy Coney Barrett also based their conclusion in part on the major questions doctrine, which requires Congress to "speak clearly" when authorizing the executive to make "decisions of vast economic and political significance." The three liberal justices - (Kagan, Sotomayor, and Jackson) did not join this part the opinion, because they argued that ordinary principles of statutory interpretation were enough to resolve the case.

The Supreme Court today also decided a case against the tariffs brought by 12 states led by the state of Oregon (they prevailed, too). The court dismissed for lack of jurisdiction the Learning Resources cases, because they held it should have been filed in the US Court of International Trade (where we filed ours).

The implications of the ruling for future administration efforts to impose tariffs are not completely clear. But I believe it will not be possible for the president to replicate the massive, sweeping worldwide tariffs he tried to do under IEEPA. Today's ruling also signals that a majority of the Supreme Court is skeptical of claims of virtually unlimited delegation of tariff power to the president.

I want to commend the Liberty Justice Center and their litigation team led by Jeffrey Schwab for bringing this case at a time few other groups were willing to do so, and Michael and Neal and their respective firms for their extraordinary work in conducting the appellate phase of the litigation. I also want to recognize our clients for their courage in joining this cause, and enduring the resulting public and media scrutiny, and the potential risk of retaliation by the administration. Many others - too many to list here - also deserve credit and thanks. It was an honor to have played a modest role in this case, myself.

I will likely have more to say later. In the meantime, for a compendium of my previous writings related to the tariff litigation, see here.

Read it here. I'm just starting it. From the syllabus (which is not a part of the Court's opinion, but is prepared by the Reporter of Decisions, and is usually a good summary):

The Chief Justice delivered the opinion of the Court with respect to Parts I and II–A–1:

Article I, Section 8, of the Constitution specifies that "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises." The Framers recognized the unique importance of this taxing power—a power which "very clear[ly]" includes the power to impose tariffs. Gibbons v. Ogden, 9 Wheat. 1, 201. And they gave Congress "alone … access to the pockets of the people." The Federalist No. 48, p. 310 (J. Madison). The Framers did not vest any part of the taxing power in the Executive Branch. See Nicol v. Ames, 173 U.S. 509, 515. The Government thus concedes that the President enjoys no inherent authority to impose tariffs during peacetime. It instead relies exclusively on IEEPA to defend the challenged tariffs. It reads the words "regulate" and "importation" to effect a sweeping delegation of Congress's power to set tariff policy—authorizing the President to impose tariffs of unlimited amount and duration, on any product from any country. 50 U.S. C. §1702(a)(1)(B).

The Chief Justice, joined by Justice Gorsuch and Justice Barrett, concluded in Part II–A–2:

The Court has long expressed "reluctan[ce] to read into ambiguous statutory text" extraordinary delegations of Congress's powers. West Virginia v. EPA, 597 U.S. 697, 723 (quoting Utility Air Regulatory Group v. EPA, 573 U.S. 302, 324). In several cases described as involving "major questions," the Court has reasoned that "both separation of powers principles and a practical understanding of legislative intent" suggest Congress would not have delegated "highly consequential power" through ambiguous language. Id., at 723–724. These considerations apply with particular force where, as here, the purported delegation involves the core congressional power of the purse. Congressional practice confirms as much. When Congress has delegated its tariff powers, it has done so in explicit terms and subject to strict limits.

The Volokh Conspiracy

A Puzzle about Learning Resources v. Trump

Trump on the Supreme Court's Tariff Decision

An MQD Receipt Justice Gorsuch Overlooked

My New Atlantic Article About Our Win in the Tariff Case

Court Blocks Community College "Diversity, Equity, Inclusion, and Accessibility" Requirements for Teaching

Reptiles v. Plants & Dogs: Reptiles Lose

Eleventh Circuit Reaffirms That Pseudonymity Is Available to Parties Only in "Exceptional Case[s]," Under "Highly Limited Circumstances"

Today in Supreme Court History: February 21, 1868

Open Thread

From Prof. Jack Goldsmith (Harvard) on the Tariff Decision

Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal

A Note on Tariff Refunds

I Got 99 Delegations, but a Tariff Ain't One

"The Day Will Come When Those Disappointed by Today's Result" as to Tariffs …

"No Recipe for a Republic"

"Our Founders Understood That Men Are Not Angels, and We Disregard That Insight at Our Peril When …"

Supreme Court Decides Our Tariff Case - and We Won!

S. Ct.'s Tariff Opinion Now Available

Login Form

Recent Volokh Posts

Volokh Conspiracy Daily E-mail

I WANT FREE MINDS AND FREE MARKETS!

I WANT TO FUND FREE MINDS AND FREE MARKETS

SUPPORT HONEST JOURNALISM

PUSH BACK

HELP KEEP MEDIA FREE & FEARLESS

STAND FOR FREE MINDS

PUSH BACK AGAINST SOCIALIST IDEAS

FIGHT BAD IDEAS WITH FACTS

BAD ECONOMIC IDEAS ARE EVERYWHERE. LET’S FIGHT BACK.

JOIN THE FIGHT FOR FREEDOM

BACK JOURNALISM THAT PUSHES BACK AGAINST SOCIALISM

FIGHT BACK AGAINST BAD ECONOMICS.