WASHINGTON — The Supreme Court’s conservatives face a test of their own making this week as they decide whether President Donald Trump had the legal authority to impose tariffs on imports from nations across the globe.
At issue are import taxes that are paid by American businesses and consumers.
Small-business owners had sued, including a maker of “learning toys” in Illinois and a New York importer of wines and spirits. They said Trump’s ever-changing tariffs had severely disrupted their businesses, and they won rulings declaring the president had exceeded his authority.
On Wednesday, the justices will hear their first major challenge to Trump’s claims of unilateral executive power. And the outcome is likely to turn on three doctrines that have been championed by the court’s conservatives.
First, they say the Constitution should be interpreted based on its original meaning. Its opening words say: “All legislative powers … shall be vested” in Congress, and the elected representatives “shall have the power to lay and collect taxes, duties, imposes and excises.”
Second, they believe the laws passed by Congress should be interpreted based on their words. They call this “textualism,” which rejects a more liberal and open-ended approach that included the general purpose of the law.
Trump and his lawyers say his sweeping “Liberation Day” tariffs were authorized by the International Economic Emergency Powers Act, or IEEPA.
That 1977 law says the president may declare a national emergency to “deal with any unusual and extraordinary threat” involving national security, foreign policy or the economy of the United States. Faced with such an emergency, he may “investigate, block … or regulate” the “importation or exportation” of any property.
Trump said the nation’s “persistent” balance of payments deficit over five decades was such an “unusual and extraordinary threat.”
In the past, the law has been used to impose sanctions or freeze the assets of Iran, Syria and North Korea or groups of terrorists. It does not use the words “tariffs” or “duties,” and it had not been used for tariffs prior to this year.
The third doctrine arose with Chief Justice John G. Roberts Jr. and is called the “major questions” doctrine.
He and the five other conservatives said they were skeptical of far-reaching and costly regulations issued by the Obama and Biden administrations involving matters such as climate change, student loan forgiveness or mandatory COVID-19 vaccinations for 84 million Americans.
Congress makes the laws, not federal regulators, they said in West Virginia vs. Environmental Protection Agency in 2022.
And unless there is a “clear congressional authorization,” Roberts said the court will not uphold assertions of “extravagant statutory power over the national economy.”
Now all three doctrines are before the justices, since the lower courts relied on them in ruling against Trump.
No one disputes that the president could impose sweeping worldwide tariffs if he had sought and won approval from the Republican-controlled Congress. However, he insisted the power was his alone.
