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When the Supreme Court decided the tariff cases last Friday, it was immediate headline news. It was the kind of high-profile confrontation between branches of government that makes for good press. The high court, by a 6-3 vote, told the president that one of his signature policies lacked legal authority. It was a complicated case and the justices splintered in their views. The conservative justices in particular had much to say to each other about their disagreements.
President Trump had made tariffs a centerpiece of his economic policy. In order to introduce the tariffs, the president relied upon the International Emergency Economic Powers Act (IEEPA). That law permits the president to take actions in response to a declared national emergency arising from an “unusual and extraordinary threat … to the national security, foreign policy, or economy of the United States.” It authorizes the president, among other actions, to “regulate … importation.” That’s what Trump relied upon to impose tariffs.
The Supreme Court majority said it wasn’t enough. The Court held that the statute did not authorize tariffs. It may have authorized other methods of regulating importation, but not tariffs. The statute doesn’t specifically mention words like “tariff,” “duties,” or “tax.” Several of the justices in the majority also relied on what the court has called the “major questions doctrine.” It is the idea that, when Congress has given away power in a statute, Courts should be reluctant to read that giveaway broadly. Here, the idea was that Congress was giving the president a lot of power in this statute. But giving the power to impose tariffs? That was a bridge too far.
Dissenting, Justices Thomas, Alito, and Kavanaugh argued that the statute really did give the president such broad powers and that it was possible to read “regulate” broadly enough to cover tariffs. And they opined that the major questions doctrine shouldn’t apply to foreign policy. It is, after all, an area where Congress and the president share powers, in contrast to many areas of domestic policy where federal power is limited to the enumerated powers given to Congress in the Constitution.
The disagreements in this case are instructive about how the Court does its business. It was a hard case, and the justices’ votes didn’t just track political lines based on who appointed which justice. Remember that a frequently repeated criticism of the Court is that it is crassly political. Seeing disagreements like this on display in the many long and substantive opinions should be a reminder that the Court’s deliberations and disagreements truly are about the law and how to understand it—not just immediate questions of who wins and who loses.
The case about tariffs was hard. Both judicial precedents and historical precedents were at play, and they didn’t all point in the same direction. The majority opinion by Chief Justice Roberts, and even more so the concurrence by Justice Gorsuch, emphasized the historical fact that Congress usually was the branch to impose tariffs throughout most of American history. On the other hand, there was an important one-off historical exception. President Nixon invoked a statute—predecessor to IEEPA, the statute at issue in this case—to justify a temporary imposition of a duty on imports. What facts matter? Which historical examples are most persuasive? Tough questions. Both sides are argued at length in the 170 pages of Supreme Court opinions.
Similarly, there are major lines of cases that fit well with both sides. The “major questions doctrine” cases counsel restraint in reading statutes—don’t too quickly assume that Congress is giving power away. But another line of historical cases on executive power provided good reason for thinking that there is a wide domain of executive authority in handling (among other things) foreign relations—which the tariffs were supposed to do. Can these cases be reconciled? Which one is more important? Again, the justices debated this at length.
The theory underlying these precedents prompted debate of its own. In particular, the nature and authority of the major questions doctrine was a key point of contention. The chief justice relied upon it and was joined by Justices Gorsuch and Barrett. But Justices Gorsuch and Barrett then each penned separate concurring opinions that explained their differences in how they understand the major questions doctrine and how it relates to the Constitution. Justice Kagan, for her part, preferred to rule against the president without relying on the major questions doctrine cases at all (which she has criticized elsewhere). Meanwhile, the dissenting justices offered their own accounts of how major questions doctrine relates to foreign affairs.
If you’ve read this far and are getting annoyed that I haven’t told you who is right, then you’re getting the point. It’s not that I don’t have views on this. But my present point is to try to explain something that I also try to communicate to my students: Doing law is hard. There are a lot of moving pieces. And making the right decision about the meaning of statutes, precedent, and even of the Constitution is not always straightforward even for people who share many beliefs about how to approach the law.
This simple point ought to be a truism. But we’re at a moment when the Court’s critics in the mainstream press too often distill everything down to politically aligned talking points. Critics of the Trump administration may be (momentarily) pleased with the Court. The administration’s supporters will generally agree with the president that the decision is very bad for the country. But neither side should personalize the decision. Of course, Supreme Court justices are people who know that cases like this come with important political contexts. But they are also legal professionals who are engaged in a debate about the law that doesn’t distill down to simply picking sides in politics. Even as the president strongly criticized the Court, his announced intention to pursue alternative legal approaches for his trade policy suggests that he too acknowledges the Supreme Court’s work.
It’s also important to recognize that the Court didn’t have to hand the administration a loss to prove its legitimacy, as some liberal commentators have suggested. The Court’s obligation is to follow the law. It’s not to hand out some kind of balanced number of wins and losses to any particular litigant—even the president. What we should want are justices doing their best to get the law right.
The Court is far from perfect. And it often gets things wrong. But to pretend that it is only doing politics, that its debates are mere smokescreens for judges willfully doing what they want to do, is to misunderstand how the Court works. Whichever side you think got it right or wrong in the tariff case, the debates themselves in the justices’ opinions are a reminder of much that is actually working well at the Supreme Court.
