The president and his subordinates continue to argue outcomes rather than statute.

The indefatigable Dominic Pino has already covered what he deemed the unremarkable reasoning of the seven federal appellate judges who joined with the majority in striking down Donald Trump’s tariffs.

The court’s logic is easy to follow. Although Congress has delegated much of its authority to impose tariffs to the president, they did not do so under the International Emergency Economic Powers Act (IEEPA), which does not even reference “tariffs.” The court did not evaluate the merits of the president’s trade restrictionism, which must have frustrated the president’s solicitor general, John Sauer. In one summary of his arguments before the court, Sauer sidestepped the statutory justification for Trump’s maneuver and emphasized instead the undesirable outcomes that would follow if his trade policies were overturned.

Scuttling Trump’s tariffs would “have catastrophic consequences for our national security, foreign policy, and economy,” Sauer argued. America would “not be able to pay back the trillions of dollars that other countries have already committed to pay,” he argued, “which could lead to financial ruin.” Well, that’s no problem then, since that would only come up if a specific American importer convinced an exporter to absorb the costs imposed by tariffs. Otherwise, they are paid by domestic importers, which either eat the new cost or pass it on to consumers, rendering tariffs a tax that can only be levied by Congress. Indeed, Sauer’s catastrophism didn’t end there. The “forced dissolution” of the trade agreements Trump has already negotiated “could lead to a 1929-style result,” he continued. In that event, “people would be forced from their homes, millions of jobs would be eliminated, hard-working Americans would lose their savings,” and so on.

This argument failed to sway the majority of the eleven judges on the U.S. Court of Appeals for the Federal Circuit. It did, however, persuade four dissenting justices. In his dissent, Obama appointee Richard Taranto argued that the president’s invocation of a national emergency was sufficient to justify his tariffs. “IEEPA embodies an eyes-open congressional grant of broad emergency authority in this foreign-affairs realm, which unsurprisingly extends beyond authorities available under non-emergency laws,” his protest read, “and Congress confirmed the understood breadth by tying IEEPA’s authority to particularly demanding procedural requirements for keeping Congress informed.”

In sum, a healthy minority on the bench did not disregard Sauer’s contention that the real-world effects of a decision that blocks Trump’s tariffs could not be disregarded merely because the statute to which the president is appealing does not specifically authorize his actions. That is an argument that could still sway the Supreme Court when it is compelled to have the final say on the legitimacy of Trump’s tariff regime.

Writing against his own political interest in the Wall Street Journal, William & Mary Law School Professor Jonathan Adler observed that the Court may conclude that the “major questions doctrine,” which requires clear congressional authorization for executive actions that could have “vast economic and political significance,” cannot apply to that which has a national security dimension. “The whole point of enacting statutes like IEEPA is to give the president broad authority to address emergencies when they arise,” Adler noted.

It seems Justice Brett Kavanaugh, at least, shares that outlook. After all, “the usual understanding is that Congress intends to give the President substantial authority and flexibility to protect America and the American people,” Kavanaugh recently observed, “and that Congress specifies limits on the President when it wants to restrict Presidential power in those national security and foreign policy domains.”

Obviously, this line of reasoning would allow the executive branch to do much of whatever it wants as long as it can craft a facially plausible narrative around the notion that what it wants is in the interests of national security. If the Supreme Court agrees, its majority decision would likely observe that it is Congress’s role to clarify its intent and restrain the president when he violates it.

That explains why the president and his subordinates continue to argue outcomes rather than statute. Striking down Trump’s tariffs “would cause massive and irreparable harm to the United States and its foreign policy and national security both now and in the future,” Commerce Secretary Howard Lutnik insisted. Trump, himself, agreed. “If allowed to stand,” he wrote, “this Decision would literally destroy the United States of America.” The Supreme Court may not necessarily agree with that formulation, but it could extend more deference to the president based on the presupposition that the president has broad authority in the realm of foreign affairs.

All this has the feel of a séance. If only the corpse of the legislative branch rose from its interment to tell us what it desired in life! Alas, we are left to parse and interpret breadcrumbs from the distant past. And yet, not all those portents augur ill for this administration. On tariffs, at least, the jury is still out.