Overruling Trump's Tariffs Should Be an Easy Decision for SCOTUS
Plus: A love letter to the heavy metal band Slayer.
Welcome to the inaugural issue of Injustice System, a newsletter about law, politics, and history. Thanks for reading!
Let's talk tariffs. Specifically, let's talk about why overruling President Donald Trump's tariffs should be an easy decision for the Supreme Court when the appropriate case arrives before the justices, which will probably happen sooner rather than later.
Don't miss the big stories in constitutional law--from Damon Root and Reason.
Trump unilaterally imposed tariffs on much of the world. Yet the president has no such authority under Article II of the Constitution, which enumerates the limited powers of the executive branch. Instead, the authority "to lay and collect Taxes, Duties, Imposts and Excises," as well as the authority "to regulate Commerce with Foreign nations," resides exclusively in Article I, which is where the limited powers of the legislative branch are detailed.
So, Trump's trade war violates the constitutional separation of powers because Trump has unlawfully exercised power that the Constitution placed in the hands of Congress, not in the hands of the president.
If that sounds familiar, it is probably because the Supreme Court said much the same in 2023 when it declared former President Joe Biden's unilateral student debt cancellation plan to be unlawful because it was an example of "the Executive seizing the power of the Legislature."
But let's say that a majority of the Supreme Court is not fully persuaded by the separation of powers case against Trump's tariffs. Are there other grounds on which Trump's tariffs might be struck down?
Why yes, there are.
Under a legal principle known as the "major questions doctrine," when the executive branch seeks to wield significant regulatory power, it must first point to an unambiguous delegation of such power by Congress to the executive.
Or, as Justice Neil Gorsuch described it in his concurrence in West Virginia v. EPA (2022), the doctrine requires that "when [executive] agencies seek to resolve major questions, they at least act with clear congressional authorization and do not 'exploit some gap, ambiguity, or doubtful expression in Congress's statutes to assume responsibilities far beyond' those the people's representatives actually conferred on them." According to Gorsuch, "the doctrine addresses 'a particular and recurring problem: [executive] agencies asserting highly consequential power beyond what Congress could reasonably be understood to have granted.'"
Trump's tariffs fit the description. As a pretext for his trade war, Trump invoked the International Emergency Economic Powers Act (IEEPA). Yet "the statute is silent on tariffs, and for good reason. It was never meant, and has never been understood, to authorize the President to impose them." That observation comes from a superb friend of the court brief filed by a cross-ideological group of legal scholars and former government officials in support of the legal challenge against Trump's tariffs. Their brief thoroughly explains why Trump's use of the IEEPA to fundamentally remake the American economy cannot be reconciled with any law passed by Congress. In short, Trump's tariffs flunk the test imposed by the major questions doctrine.
But what about the venerable principle of judicial restraint, you might ask. Doesn't the Supreme Court owe some deference to the president on tariffs because the closely related issue of global trade has national security implications?
In a word, no.
In Youngstown Sheet and Tube Company v. Sawyer (1952), the Supreme Court famously rejected President Harry Truman's claim that his "inherent power" as president allowed the executive to effectively nationalize the nation's steel mills during a labor strike in order to keep the mills running. According to Truman, the presence of U.S. forces in Korea justified his actions. "In order to assure the continued availability of steel and steel products during the existing emergency," Truman wrote in Executive Order 10340, "it is necessary that the United States take possession of and operate the plants, facilities, and other property of the said companies."
But the Supreme Court ruled otherwise. "The President's order does not direct that a congressional policy be executed in a manner prescribed by Congress—it directs that a presidential policy be executed in a manner prescribed by the President," the Court observed. Yet "the Founders of this Nation entrusted the lawmaking power to the Congress alone in both good and bad times." In other words, there are constitutional limits that the executive may not cross, even—or especially—in the name of national security.
If the Supreme Court is serious about enforcing either the separation of powers or the major questions doctrine—meaning, if the Supreme Court is serious about serving as a principled tribunal of justice no matter which political party happens to occupy the White House—then Trump's trade war will be ruled a constitutional loser. We'll see what happens.
Odds & Ends: For the Love of Slayer
When the heavy metal band Slayer announced that it was calling it quits in 2019, I knew I had to catch at least one of the final shows. As luck would have it, the farewell tour rolled through Albany, New York, which is just an hour or so away from the small Hudson River Valley town I call home.
I know this sort of music is not for everyone. It's noisy and abrasive and the lyrics are not exactly brimming with uplifting messages. But I've loved it for almost as long as I can remember. I first saw Slayer at a packed-beyond-capacity club in Detroit in 1991. My fellow headbangers will understand what I mean when I say that Kerry King was still regularly wearing the big nail-studded armband in those days. I was fortunate enough to see them play live many more times in the decades to come.
And now, to my delight, the band is sorta back from the dead. They've played a handful of reunion shows and recently announced a big gig happening this fall in Hershey, Pennsylvania. I suspect that at least a few of you out there reading this newsletter might even be planning to go. Who knows? Maybe we'll run into each other in the beer line.
