It’s a case he should lose, but it’s no slam dunk.

L ike most conservatives who do not believe presidents have unilateral power to impose taxes, I’ve been against the Trump tariffs, which are taxes on Americans — not, as the president maintains, fees paid by foreign countries. Consequently, I thought the Court of International Trade (CIT) ruling against them was sound, I was chagrined when the Federal Circuit stayed the CIT ruling during the pendency of the appeal, and I was pleased that the Circuit affirmed the CIT’s decision.

Nevertheless, to repeat what I said last Saturday, the Circuit’s ruling was not a complete defeat for the president. Rich Lowry and I discussed why on our podcast this week. It’s a case he should lose, but it’s no slam dunk. Moreover, it’s a case that defies the default assumption that judges will divide along partisan lines whenever the lawfulness vel non of some dubious Trump action is the central question.

Federal Circuit: Three Opinions, No Partisan Consensus

Let’s look at the way the eleven judges of the Federal Circuit divided. The 7–4 decision produced three opinions with an unpredictable mix of Republican- and Democratic-appointed judges. Not only that. The en banc Circuit’s Republican appointees (three of the eleven) skewed 2–1 against the president’s tariffs. This tracks the earlier unanimous CIT ruling, in which two Republican appointees (of Reagan and Trump himself) voted against the tariffs, along with a Democratic appointee (of Obama).

And now for the most significant point, though one seemingly buried in much of the commentary. Yes, the Trump tariffs “lost” the case, 7–4. But guess what? If you hold my position that the 1977 International Emergency Economic Powers Act (IEEPA), on which the administration relies, endows presidents with no tariff authority, the court ruled against you, 7–4.

Again, there are three opinions. This is not just a majority of seven against the tariffs and four in favor. The majority position is split. The split is elucidated by the concurring opinion (held by four judges: three Democratic appointees and one Republican appointee), which concluded that the IEEPA contains no presidential tariff authority, full stop. These four judges combined with three others (all Democratic appointees) who rejected the Trump tariffs even though they reasoned that the IEEPA may in fact provide the president with tariff authority. The quarrel of this trio was not with the concept of IEEPA-based tariffs; it was with the arbitrariness and scope of the Trump tariffs — any amount, any time, any duration, suddenly surged, just as suddenly slashed or postponed, and utterly bereft of process.

To be clear, then, only four of the Circuit’s eleven judges rejected IEEPA tariffs outright. And the four dissenting judges (two Democratic and two Republican appointees) endorsed Trump’s positions that (a) the IEEPA gives presidents unbridled tariff authority in an emergency, and (b) it’s up to the president to decide whether an emergency actually exists. So, even though Trump lost, he persuaded seven of the eleven judges that the IEEPA gives presidents tariff authority, to some extent.

From the White House’s perspective, that’s major progress after the unmitigated loss in the CIT. It probably explains why, prior to deciding the case, the Circuit stayed the CIT ruling, such that the tariffs — and the president’s authority to keep imposing new ones — remained in effect even though the plaintiffs, still suffering immense financial damage, had seemingly won the case. And it explains why, despite ruling against the tariffs, the Circuit stayed its own ruling to grease the skids for Trump’s inevitable appeal to the Supreme Court. That means Trump can continue whimsically imposing, raising, lowering, and stalling tariffs for the foreseeable future, perhaps until the end of the Court’s term next summer.

Trump likes to quip that he gets tired of all the winning. Still, I imagine that if this is what “losing” looks like, he’ll take it.

A Case of Statutory Interpretation, Not Unconstitutional Delegation
Now, why does there appear to be misunderstanding about the state of play? I believe it is because, while many progressive commentators are just happy that courts are ruling against Trump, many conservative legal analysts have their eye on the wrong ball: the constitutional question whether Congress may properly delegate one of its core powers — the power to tax — to the executive.

This is understandable: (a) It is usually first principles that resonate with us (that’s certainly how it is for me); and (b) if we fit the tariff case into the plethora of Trump issues working their way through the courts, the common thread is his authoritarian tendency, and the tariff case is an extreme example of his determination to act without congressional approval in an area that is Congress’s domain.

If we want to get this right, though, we need to shed that baggage. This is not a constitutional law case; it is a statutory interpretation case. It is not about delegation; it is about what is meant by Congress’s grant in the IEEPA of presidential authority to “regulate” imports — i.e., are tariffs encompassed within regulatory power? We must stop focusing on delegation. That ship has sailed. Let’s just stipulate that we conservatives would like to pare back Congress’s penchants to delegate its powers and to prescribe vaguely defined “emergencies” as a pretext enabling presidents and executive agencies to legislate.

Those are worthy objectives, but they have nothing to do with the tariff case as it has been teed up for judicial consideration. Fretting over delegation will cause you to miss one of the best arguments against the tariffs, which is derived from the statutes in which Congress has expressly delegated tariff authority to the executive. Remember, in the IEEPA, neither the word tariff nor any of its close analogues (e.g. duty, surcharge, or tax) appears. Sure, maybe Congress should never have delegated tariff authority in any statute; but the statutes in which it has done so powerfully illustrate that, when Congress truly intends to delegate tariff authority, it requires the executive to jump through many procedural hoops, and it restricts the amount of exaction the executive may prescribe, as well as its duration.

You’ll find none of that in the IEEPA. That’s a strong argument against the tariffs, especially when conjoined with two other points. First, in the IEEPA’s near half-century on the books, no president prior to Trump had invoked it as a rationale for imposing tariffs. Second, in enumerating Congress’s powers, Article I of the Constitution separately confers the powers (a) “to lay and collect Taxes, Duties, Imposts and Excises” and (b) “to regulate Commerce with foreign Nations”; if the Framers had intended the power to tax (including to impose tariffs) to be subsumed by the power to regulate foreign commerce, there would have been no need to have discrete provisions — the power to regulate foreign commerce would have sufficed to permit tariffs.

Nixon’s Tariffs: The Trading with the Enemy Act
So how did three judges in the Circuit majority reckon that the IEEPA might give a president limited tariff authority (to say nothing of the four dissenting judges who sided with Trump’s maximalist position)? Principally, they looked to a precedent involving the IEEPA’s predecessor statute, the Trading with the Enemy Act. The TWEA, like the IEEPA, empowered the president, upon declaring a national-security emergency, to “regulate” imports. And again like the IEEPA, the TWEA did not mention the word tariff (or one of its close analogues).

In 1971, President Nixon declared an emergency involving the nation’s “balance of payments,” which had resulted in an overvalued U.S. dollar that hyper-stimulated imports and restrained exports. To address the emergency, Nixon invoked the TWEA to impose a temporary 10 percent global tariff (described in his proclamation as “a supplemental duty amounting to 10 percent ad valorem” on “all dutiable articles”). The tariffs were challenged in Yoshida International v. United States, a case litigated in the predecessor courts of the CIT and the Federal Circuit — respectively, the U.S. Customs Court and the U.S. Court of Customs and Patent Appeals (CCPA). Just as in the Trump tariffs case, the lower court ruled against the president, concluding that the TWEA’s authority to regulate did not include the power to impose tariffs. On appeal, however, the CCPA reversed, reasoning that the word “regulate” encompassed tariffs that were “appropriately and reasonably related . . . to the particular nature of the emergency declared.”

With that as background, flash forward to the Circuit’s ruling on the Trump tariffs. As we’ve seen, the four concurring judges concluded that there is no tariff authority in the IEEPA. Yet, the three judges who joined them in the majority relied on Yoshida — and the similarity of the IEEPA to the TWEA — in reasoning that president may be able to impose IEEPA tariffs if they are carefully tailored. They emphasized that Nixon’s tariffs were modest (10 percent), temporary (five months), and modeled on other statutory provisions. These judges thus rejected Trump’s tariffs only because they were not as deliberative and reasonable as Nixon’s. By contrast, the four dissenting justices would have gone all the way with Trump — deferring to a president’s foreign policy and national security judgments — a position Yoshida plainly supports.

Why the Nixon Precedent Is Inapposite
To my mind, the three majority judges and four dissenters take entirely the wrong lesson from Yoshida.

The final appellate ruling by the CCPA in that case occurred in 1975. The IEEPA was signed into law just two years later. When IEEPA was enacted, then, the controversy over Nixon’s reliance on the TWEA to impose tariffs was still very much front of mind. Ergo, it is highly significant that Congress did not explicitly grant the president the power to tariff in the IEEPA; this was not an inadvertent omission, it was a conscious legislative choice not to endorse what Nixon had done.

What’s more, one of the salient purposes of the IEEPA — in conjunction with another post-Watergate statute, the 1976 National Emergencies Act — was to curtail the president’s ability to usurp legislative authority by the facile declaration of emergencies. Over time, ironically, the statutes seem to have had the opposite effect. As I’ve previously contended, the explanation for that is the IEEPA’s reliance on a legislative veto provision — a concurrent resolution, allowing Congress to nullify an emergency declaration without the president’s approval. There were about 200 other such laws then in the U.S. Code. But in 1983, the Supreme Court invalidated a legislative veto in an unrelated immigration case, INS v. Chadha; Congress took Chadha to mean that all legislative vetoes were constitutionally infirm, and amended the IEEPA accordingly. For our purposes, however, the question is what the IEEPA understood to mean when it was first enacted in 1977, because the later amendment did not change the part relevant to us — the authority to regulate imports. Patently, it was understood that the IEEPA’s conferral of authority to regulate did not include authority to impose tariffs.

What Will the Supreme Court Do?

That is why I am confident that the president should lose the tariff case at the Supreme Court. But if you’re asking me to predict what will happen, that’s a much tougher call.

I feel safe anticipating that this won’t be the oft-assumed 6–3 ruling in a Trump-centric case, with the six conservative Republican appointees siding with the president and the three progressive justices appointed by Democrats in the minority. Nothing about the way the case has gone so far signals that outcome. Most Republican appointees have voted against the tariffs; about half of Democratic appointees have accepted the premise that the IEEPA permits tariffs.

A couple of final points.

First, as explained above, the original public meaning of regulate in the IEEPA did not include tariff power. For originalists, that should be the end of the case. Nevertheless, because the non-political branch is self-aware that national security or foreign policy are political matters that lie outside the judicial ken, there is a tendency to defer to the president in cases touching on such matters. Perhaps that makes sense when a private litigant, particularly a non-American, is challenging a president’s actions on the world stage, or when national security risks are palpable. But deference to the president is inappropriate in a case that turns on the separation of powers between the political branches. In that situation, any deference to the president could only come at Congress’s expense. The Framers gave Congress, not the president, the power to regulate foreign commerce and impose tariffs on imports. If anything, then, there should be a presumption against presidential action absent an unambiguous congressional grant of authority.

Although it would disappoint me, I wouldn’t be shocked to find some justices assuming a posture deferential to the president — and relying on Yoshida to take that wayward position.

Second, it is worth revisiting Biden v. Nebraska (2023), in which the Court rejected the last administration’s attempt to massively cancel student loans. I invite your attention, in particular, to Justice Elena Kagan’s spirited dissent. She berated her conservative colleagues over what she portrayed as their textualist pretensions. The statute at issue (the so-called HEROES Act) empowered the executive branch (the secretary of Education) to “waive or modify any statutory or regulatory provision” and to replace old loan agreements with new “terms and conditions.” For Kagan, the plain reading of the text — i.e., giving the words their most commonly understood meaning — easily embraced cancelation (indeed, she faulted the majority for overhyping the word modify in isolation, decoupling it from waive, which is undeniably close to cancel).

Further, she scolded her conservative colleagues for resorting to the “major questions” doctrine — the concept that Congress must be especially clear if it intends to empower the executive power to take actions that have vast economic or political significance. In Kagan’s telling, this is just an artifice by which self-proclaimed textualists evade text when they don’t like the result it portends. (This contention prompted a thoughtful response from Justice Amy Coney Barrett, who concurred in the ruling against Biden’s loan cancelations. Barrett countered that the major questions doctrine is a valuable tool for illuminating the context of the statute, not for nullifying its text.) Intriguingly, the Federal Circuit’s majority opinion against Trump’s tariffs relies heavily on the major questions doctrine.

Of course, the tariffs case is different from the loan forgiveness case because the contested statutory word in the former, regulate, has constitutional pedigree (as we’ve seen, Article I does not subsume the power to impose tariffs in the power to regulate foreign commerce). Even with that said, her Biden v. Nebraska dissent makes it hard for me to foresee Justice Kagan voting against the Trump tariffs, and she is one of the most influential justices on the Court. Consider that in conjunction with the number of Democratic-appointed judges who have signaled sympathy for the premise that the IEEPA empowers a president to impose tariffs. Doing so convinces me that many progressives like the idea of a future Democratic president unilaterally imposing tariffs in an effort to manage the economy — even if they have to let Trump wield that power for the next three years.

President Trump has empirical reasons for optimism that he’ll get at least some support from conservative justices, who are instinctively deferential in foreign relations matters, and from progressive justices, who are fond of congressional grants of power to the executive branch and the administrative state. And he only needs five votes. So yes, he should lose, and I think he will lose . . . probably. But I wouldn’t bet the ranch on it.