Trump’s Tariffs Are Not Constitutional

It was always inevitable that Supreme Court would rule for Congressional powers to be enforced.

I told you so.

Last year, I wrote that the Supreme Court would likely overturn President Trump’s use of the International Emergency Economic Powers Act of 1977 (IEEPA), which does not even mention the word “tariff.” I have also predicted that Judge Neil Gorsuch would lead the way based on his strong support for the “Non-Delegation” doctrine. Chief Justice John Roberts’ position was also obvious, given his support for the Major Questions doctrine.

You can find details and the Constitutional arguments here, here, and here.

This is the post: Update: Are Trump’s Tariffs Constitutional?

The U.S. Court of International Trade says “No”

By Mark Strand, May 19, 2025

As I wrote on April 4, the U.S. Court of International Trade has ruled that most of the tariffs President Trump imposed on “Liberation Day” are unconstitutional.

When the U.S. Court of International Trade rules against the administration on the constitutionality of tariffs, as it did with President Trump’s sweeping tariff orders, the administration’s next step for appeal is to the United States Court of Appeals for the Federal Circuit. This specialized appellate court has exclusive jurisdiction over appeals from the Court of International Trade. If the parties are dissatisfied with the decision of the Federal Circuit, they may petition the U.S. Supreme Court for further review.

The Federal Circuit’s jurisdiction is defined by the types of cases it hears, not geography. Its exclusive subject-matter jurisdiction includes:

• Appeals from the U.S. Court of International Trade, U.S. Court of Federal Claims, and U.S. Court of Appeals for Veterans Claims.

• Patent and trademark cases from all U.S. District Courts and the U.S. Patent and Trademark Office.

• International trade disputes, government contracts, federal personnel claims, veterans’ benefits, and certain money claims against the U.S. government.

• Appeals from administrative agencies such as the U.S. International Trade Commission, Boards of Contract Appeals, and the Merit Systems Protection Board.

The Federal Circuit does not hear criminal, bankruptcy, immigration, or state law cases.

Kimberly A. Moore, a George H.W. Bush appointee, is the U.S. Court of Appeals Chief Judge for the Federal Circuit. Of the 12 judges, four were appointed by Republican presidents, and Democratic presidents appointed eight. However, remember that until very recently, Republicans opposed broad tariffs and favored free markets. The party makeup of these judges may not tell us what to expect.

A three-judge panel of the US Court of Appeals for the Federal Circuit will likely be the first stop of the Administration’s appeal. After that, the full court may also decide to hear the case. Appeals from this specialized court go directly to the US Supreme Court, which has the discretion to hear the appeal.

As I argued in “Are Trump’s Tariffs Constitutional?” the U.S. Supreme Court has increasingly asserted that Executive overreach violates Congress's role under the Constitution. In recent years, the court has cited two doctrines, the non-delegation and the Major Questions doctrines in an effort to stop Congress from surrendering its Constitutional powers to the Executive branch.

In 2019, Gorsuch argued in Gundy v. United States that the Court had too often abdicated its role in preventing Congress from abandoning its duty to set policy. He insisted that, for a given delegation of power to be constitutional, it had to be limited to cases where Congress enunciated clear and specific standards for major policy, where it listed conditions under which the official could act, or where the subject matter was within the official's constitutional powers (e.g., discretion granted to the president on an issue relating to foreign affairs).

And,

Another Supreme Court ruling on the Major Questions Doctrine is consistent with their ruling on the Chevron deference. That doctrine states that agencies do not have regulatory authority to issue regulations on issues of vast economic and political significance where Congress has not empowered the agency with that authority. For example, the Supreme Court held in Biden v. Nebraska that Congress did not authorize the Department of Education to issue a massive student loan forgiveness program. Justice Roberts held that the statutory grant of authority to the Secretary of Education to “waive or modify” loan terms could not be extended to the student loan forgiveness program. A debt cancellation of this scale required explicit congressional authorization and fell under the major questions doctrine.

Based on these recent rulings that included the overturning of the Chevron Doctrine, it is highly likely that the Supreme Court will rule against a broad tariff based on the International Emergency Economic Powers Act of 1977 (IEEPA), which does not even mention the word “tariff.”