He's right, of course.
Presidential power and the Supreme Court’s own stature ride on this case
The momentous tariffs case will undermine or buttress the Constitution’s separation of powers.
October 31, 2025
Decorum might dissolve during oral arguments on Wednesday in the Supreme Court. The justices might guffaw when Trump administration lawyers say: The president’s tariffs should be exempt from judicial review because they respond to an “ emergency,” emergencies, like beauty, are in the eye of the beholder, and presidents alone are our designated beholders.
This momentous case must either undermine or buttress the Constitution’s architecture: the separation of powers. Six amicus briefs explain why.
The conservative Goldwater Institute and the liberal Brennan Center separately argue that the statute the president says gives him unreviewable power to impose taxes (which tariffs are) of whatever amount, and for as long as he chooses (the International Emergency Economic Powers Act of 1977), does no such thing. (Neither does the National Emergencies Act of 1976, which also is invoked by his defenders.)
Goldwater cites numerous instances of judicial review of claims of emergencies. Judicial review of an executive’s assertion that an emergency exists is comparable to review of a legislature’s assertion that a particular piece of legislation is constitutional. Brennan, too, says, in effect, that if Congress can address a condition, it is not an emergency. Emergencies are sudden, acute, unforeseen, extraordinary, dangerous and require instant action. The president sabotages his case by saying today’s “emergency” is a “persistent” condition — 50 years of trade deficits. They have coincided with soaring U.S. prosperity.
The IEEPA was written to provide presidents with “a temporary boost in power” (Brennan), while preventing the use of seismic emergency powers, allegedly implied by Congress, to address chronic conditions. Otherwise, as a justice wrote in 1952, “emergency powers would tend to kindle emergencies.” Besides, as a percentage of GDP, the overall U.S. trade imbalance is significantly less than 20 years ago (Brennan).
A brief from a broad spectrum of economists argues: Even if the IEEPA permits imposing tariffs (it has never been so used), tariffs would not “deal with” (IEEPA language) trade deficits. Besides, over the past 50 years, in any given year, most countries have run trade deficits, as the United States did for all but three years between 1800 and 1870, while it was industrializing. Furthermore, the net effects of higher tariffs on trade balance are generally “small and insignificant.”
A bipartisan group of legal scholars and former government officials argues that Congress never intended the IEEPA as a “backdoor” for turning the taxing power into “an executive instrument” that allows presidents to restructure the economy. In the IEEPA, Congress avoided standardless, open-ended delegation of power by using seven different verbs, but not “tax” or its synonyms, in empowering the president to do things.
A brief from the New York University School of Law’s Institute for Policy Integrity stresses the “major questions” doctrine, which protects Congress from having its words twisted to unintended purposes. It holds that Congress does not cryptically delegate enormous powers. Presidents claiming such delegated powers must cite specific congressional language, absent from the IEEPA. The president’s use of the IEEPA is “unheralded, transformative, and economically and politically significant.” And unauthorized.
Finally, a brief by three Cato Institute researchers refutes the extralegal doomsaying the administration uses, perhaps to compensate for the weakness of its legal arguments. But synthetic catastrophizing is unlikely to sway the justices.
The administration says tariffs imposed under the IEEPA are indispensable for negotiating agreements with trading partners. But since the IEEPA’s 1977 enactment, 14 regional and bilateral agreements have been reached, without any IEEPA tariffs. And, as the Cato economists note, IEEPA tariffs were involved in none of the 538 treaties and thousands of other international agreements negotiated since 1977.
Considering the economic consequences, for the government and the economy, of curtailing this president’s tariff power is not part of the court’s remit. But total customs duties collected from May through September were just 6.4 percent of government revenue. And if repeated in court, the president’s claim that America was a “ dead country” until his tariffs arrived eight months ago might cause the justices’ decorum to give way to more hilarity.
How the court decides this case will diminish either presidential power or the court’s stature. The court might flinch from impeding an elected executive’s core agenda. (It flinched regarding Barack Obama’s Affordable Care Act.) The court prudently husbands its perishable prestige, which undergirds its power.
If, however, the court protects itself by protecting this president’s unexampled claim to uncircumscribed discretion, this question will linger: For what more momentous controversy might the court be hoarding the prestige that enables it to do its duty to police the excesses of the political branches?
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