Trump’s Tariffs Are a Massive Money Grab. That’s Why They Are in Trouble.
The president has exercised tax and spending powers that belong to Congress. The Supreme Court might be ready to say ‘enough.’
By Greg Ip
Nov. 6, 2025 5:30 am ET
Hundreds of lawsuits have been filed over the Trump administration’s top policies. WSJ’s Louise Radnofsky looks at five of the fastest-moving court fights, from tariffs to the Federal Reserve, that could redefine the limits of White House authority.
But even for this court, allowing any president to impose the largest tax increase since 1982 ($3.9 trillion over a decade, Trump’s own budget office estimates) without any input from Congress may be a bridge too far.
At one point, Justice Neil Gorsuch, illuminating his own thinking, said: “The really key part of the context here…is [that] the constitutional assignment of the taxing power to Congress, the power to reach into the pockets of the American people, is just different and it’s been different since the founding.”
The case is superficially narrow and technical. Trump has raised tariffs on almost every country to rates as high as 100%, invoking the 1977 International Emergency Economic Powers Act.
The law allows the president to “regulate” imports to counter emergencies originating abroad. Trump claims “regulate” goes beyond the tools presidents usually use, such as sanctions, to tariffs. His opponents say Congress didn’t intend the law to authorize tariffs, noting that numerous other statutes do—for example, to address the trade deficit or unfair trading practices. Lower courts have ruled against Trump.
Trump argues tariffs are a logical tool to carry out foreign policy, like embargoes and sanctions, which fall more squarely under the president’s sole purview. That’s why Sauer sought to sever the connection to revenue. “The fact that they raise revenue is only incidental. The tariffs would be most effective, so to speak, if no person ever paid them,” because they would have achieved their goal of changing another country’s behavior, or diverting all American purchases away from imports to domestic goods, he said.
Yet Trump regularly undermines these rationales, recently telling CBS’s “60 Minutes” that the U.S. doesn’t want to make some of the products he has tariffed, such as underwear. He has lowered, but not eliminated, tariffs on countries that struck deals.
It isn’t the mere fact of the tariffs that upsets the constitutional order, but their magnitude and breadth. Opponents argue they violate two principles key to the separation of powers. Under the “major questions doctrine,” presidents may not read authority with broad economic or political ramifications into a statute without clear guidance from Congress. Under the “nondelegation doctrine,” Congress may not cede its legislative duties to anyone else. Sauer argued neither applied in this case, as Trump’s tariffs fall under his power to steer foreign policy, a presidential duty.
But the court wasn’t buying it. Trump is using “power to impose tariffs on any product from any country in any amount for any length of time. It does seem like that’s a major authority,” Chief Justice John Roberts said. His “vehicle is imposition of taxes on Americans, and that has always been the core power of Congress.”
Justice Elena Kagan said, “A tax with no ceiling, a tax that can be anything, that here the president wants, there an agency wants, would raise a pretty deep delegation problem.”
The hearing suggests at least six of the nine justices—the three liberals, Roberts, Gorsuch and Amy Coney Barrett—are ready to uphold the lower court’s decision and rule against Trump.
Trump has claimed this would “literally destroy the United States of America.”
This doesn’t seem likely. He would lose some revenue, but not all, because some tariffs were imposed under authorities not at issue in this case. The Committee for a Responsible Federal Budget estimates $90 billion of the $195 billion collected so far is at risk.
Going forward, Trump could recapture lost revenue with other tariff authorities. This might constrain his negotiating leverage, but not by much.
The more important consequence is for American governance. Trump has built his agenda, from tariffs to deportations to attacks on alleged Venezuelan drug runners on largely unchecked presidential authority. Should he prevail in this case, he could raise almost any sort of tax simply by invoking an emergency with some foreign connection, however tenuous. A future president could declare a climate emergency and impose a carbon tax.
As Gorsuch noted, Congress could, practically speaking, not get these powers back, since that would require a two-thirds majority in both chambers to override the president’s inevitable veto.
“It’s a one-way ratchet toward the gradual but continual accretion of power in the executive branch and away from the people’s elected representatives,” Gorsuch said. The justices’ message Wednesday: It may be time to stop.
Write to Greg Ip at greg.ip@wsj.com
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