Editor’s note, February 21, 4 pm ET: President Trump said Saturday that he would impose a global tariff of 15 percent to replace the tariffs struck down by the Supreme Court. This story was originally published on February 20.
Why a Republican Supreme Court struck down Trump’s tariffs
Trump loses, and the Democratic justices didn’t need to concede anything.
Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court.
The Supreme Court handed down its long-awaited decision in Learning Resources v. Trump on Friday, with a total of six justices concluding that a wide range of tariffs imposed by President Donald Trump are illegal.
Chief Justice John Roberts, a Republican, wrote the opinion. At least some of his opinion was joined by five other justices, including Republican Justices Neil Gorsuch and Amy Coney Barrett, along with the Court’s three Democrats.
But the Democratic justices withheld their support from seven key pages of Roberts’s opinion, which discuss a recently created legal doctrine that consolidates power within the judiciary, thus denying a broader doctrinal victory to the Court’s right flank.
Learning Resources, in other words, ends in the best possible outcome for Democrats. Trump’s tariffs are gone, at least for now. And none of the Democratic justices needed to compromise on anything.
Roberts’s opinion lays out two separate rationales for striking down the tariffs. One, which the three Democrats sign onto, is a fairly straightforward interpretation of a federal law. Trump claimed the power to impose tariffs under the federal International Emergency Economic Powers Act (IEEPA), which permits the president to “regulate … importation or exportation.”
In the part of Roberts’s opinion that five other justices joined, he explains that the word “regulate” means “to ‘fix, establish, or control; to adjust by rule, method, or established mode; to direct by rule or restriction; to subject to governing principles or laws.’” But it does not mean the power to tax.
As Roberts writes, federal law is “replete with statutes granting the Executive the authority to ‘regulate’ someone or something,” but Trump’s lawyers were unable to “identify any statute in which the power to regulate includes the power to tax.”
And thus Trump cannot use IEEPA to impose a tax on imports. Simple as that.
It is likely that Trump will attempt to reinstate at least some of his tariffs by relying on other statutes. But, as Roberts points out, the federal laws that give the president more explicit authority to impose tariffs also limit his power to do so. One statute, for example, permits Trump to impose import taxes of no more than 15 percent, and for no longer than 150 days.
A less-than-major moment for the “major questions doctrine”
Before Roberts lays out the statutory argument against the tariffs, however, he also claims they violate a controversial new legal doctrine known as “major questions,” which the Court first mentioned in a 2014 opinion. Prior to Learning Resources, the major questions doctrine had only previously applied to one president: Joe Biden.
That 2014 decision stated that, when a presidential administration claims the power to do something very ambitious, courts should view that claim with skepticism. In the Supreme Court’s words, “we expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’”
Because the major questions doctrine is so new, and because it’s only ever been used against a Democratic president, many legal observers – including myself – had criticized it as an unprincipled effort to choke off the authority of Democratic administrations.
The Court’s three Democrats dissented in the Biden-era cases using this doctrine to strike down Democratic policies, and they did not join the parts of the Learning Resources opinion that apply it to Trump’s tariffs either.
In a separate concurring opinion, Justice Elena Kagan explains that she and her fellow Democrats believed it was unnecessary to invoke the major questions doctrine in Learning Resources because “the ordinary tools of statutory interpretation amply support today’s result.”
But three justices — Roberts, Gorsuch, and Barrett — all signed onto the seven pages of Roberts’s opinion which argue that the tariffs violate this major questions doctrine. So that shows that half of the Court’s Republicans are willing to use this doctrine against presidents of their own party.
A clear win for the Court’s Democrats
Though the Court’s Republican majority has often behaved sycophantically toward Trump — this is, after all, the same Court which held that Trump is allowed to use the powers of the presidency to commit crimes — it’s not particularly surprising that Learning Resources divided the Republican justices, because tariffs are also an issue that divides the Republican Party.
At a Federalist Society conference on executive power last spring, several speakers hosted by the powerful conservative legal group spoke out against the tariffs and questioned their legality. One of the lead lawyers challenging the tariffs was Michael McConnell, a former George W. Bush appointee to a federal appeals court.
What’s more, several prominent Republicans joined briefs opposing the tariffs.
The broader political lesson that emerges from Learning Resources is that Democrats can win in this Supreme Court, but typically only when a case involves an issue that divides Republicans.
Learning Resources pitted Paul Ryan-style economic libertarians against MAGA-style Republicans who seek a more interventionist approach. And it pitted Republicans who have principled views in favor of free trade against Republicans who either had a shockingly rapid change of opinion about tariffs or believe that being a good partisan means following the leader.
In the end, these divides cleaved the Supreme Court’s Republican majority straight down the middle. That doesn’t just mean that Trump’s tariffs were struck down, it also means that the Republicans were unable to assemble five votes to bolster their major questions doctrine. Learning Resources is the cleanest victory Democrats on the Court could have reasonably expected.
