The Supreme Court apparently is going to have the last word on the legality of President Trump’s wide-ranging tariffs on imported goods, but getting there could put the Court between two legal theories that it applies these days.
One theory – favorable to Trump – is the current Court majority’s generous support of presidential power — as seen, especially, in last year’s sweeping grant of legal immunity and its salvaging of his campaign by assuring ballot access, and more recently, in allowing many of Trump’s new policy moves.
The other theory – maybe unfavorable to Trump – is the “major questions doctrine.” Invented recently by the Court and used by it several times to strike down broad policy programs of federal government agencies, the doctrine nullifies wide-ranging agency action unless Congress has given explicit permission, in advance, for that initiative. (An example: that doctrine led the Supreme Court to nullify President Biden’s forgiveness of huge amounts of college student loan debts.)
In Friday’s ruling by a special federal appeals court, declaring that Trump had no authority to impose his most significant tariffs on imports, that court’s main opinion relied explicitly on the “major questions doctrine.” Those tariffs, the ruling said, were so novel and unprecedented that they violated the doctrine; Congress had not given permission. The law at issue did not even use the word “tariffs,” the opinion noted.
In reaching that decision, the appeals court rejected a claim by Trump’s lawyers that the “major questions doctrine” does not apply at all to Presidents. The opinion’s footnote 17 said this: “The Government argues as a threshold matter that the major questions doctrine does not apply to the President because of the President’s democratic and political accountability.”
That argument, of course, is closely akin to much of President Trump’s rhetoric that, because he won election again by what he considers a wide margin, he has been given exceedingly broad power to do what he chooses.
Yesterday, the appeals court ruled that the doctrine is a limit on the President’s power, too, just as much as on the power of federal agencies in the Executive Branch. It added that other appeals courts, too, had ruled the same.
President Trump has vowed to take the tariffs controversy to the Supreme Court, and it is virtually a certainty that, again, his lawyers will press their argument that the “major questions doctrine” does not limit presidential authority.
The Supreme Court’s conservative majority may well be tempted to accept that argument. If the doctrine does not apply at all, that would make it easier for the pro-Presidency sentiment to come into play again and the tariffs could survive the challenge.
How devoted is the Court to the “major questions doctrine”? It fashioned that theory on the premise that it was constitutionally necessary, to keep a separation of powers between two of the three branches of the federal government. Would the conservative majority be willing to have the doctrine only apply to government agencies and not to the President who has far wider power to act than agencies do?
Confronting such questions will at least make the coming review of the Trump tariffs more taxing for the conservative majority. At the least, it will be a prominent factor when lawyers file their written briefs and make their oral arguments in the Court.
Trump’s legal team will have some help in getting around that limiting doctrine in the tariffs controversy. That could come from another theory that bears upon the constitutionality of government policy at issue before the Court.
That is the concept that presidential power is at its peak when the nation’s Chief Executive is dealing with foreign policy and national security issues. Because courts, according to the theory, at not equipped to gauge the needs of diplomacy and military action, while presidents clearly can manage in that arena, courts should defer to that expertise.
Not surprisingly, the four judges who dissented from Friday’s appeals court decision said that current law can be read in a way that suggests that Congress did, in fact, intend to give Presidents very wide power to vary tariffs on imported goods in times of emergency. The dissenters treated the tariffs not as a matter of economics, but as a way for Trump to deal with national security and diplomacy. All of Trump’s orders on tariffs do claim that such an emergency exists.
These are not matters of judicial interpretation that can be sorted out simply. Friday’s appeals court ruling came in three separate opinions, together totaling 127 pages. That is not a matter of verbosity, but rather of complexity.
This dispute is now on hold, for the time being. The appeals court gave lawyers in the case until October 14, 46 days, to take the case on to the Supreme Court.
The tariffs controversy is clearly significant enough that the Justices will want to take it on for themselves. Will they allow the tariffs to stay in effect (as the appeals court did) while their review proceeds? If they do, then the tariffs probably would continue into some time next year, awaiting a final resolution by the Justices.
The tariffs have already begun having an impact on the prices consumers pay, sending them upward on many products or parts of products that come from abroad. The existence of the tariffs has had a negative impact on the nation’s stock markets.
