Trump’s Tariffs Are Constitutional. But Will SCOTUS Rule So?
Every once in a while, you run into a court decision that tries so hard to draw bright constitutional lines that it ends up ignoring two centuries of history, practice, and common sense.
The recent Learning Resources v. Trump ruling is one of those cases.
The District Court held that the International Emergency Economic Powers Act (IEEPA) doesn’t let the President impose tariffs. Why? Because IEEPA says the President can “regulate importation,” and according to the court, “regulating importation” does not include tariffs—unless Congress uses magic words like tariff, duty, impost, or tax.
This is a mistake. A big one. And it matters, not just for this case, but for understanding how Congress and the President have interacted on foreign-commerce issues for more than 200 years.
Let’s walk through why the court’s logic collapses under its own weight.
Tariffs Have Never Belonged Exclusively to “Taxation”
The entire ruling turns on a false premise: that tariffs are only taxes, and therefore Congress must explicitly invoke the Taxation Clause if it wants the President to impose them.
That’s simply not how tariffs have ever worked.
From the founding era onward, tariffs have served two purposes:
- Raising revenue (the classic “tax” function), and
- Regulating foreign commerce (protecting domestic industries, retaliating against foreign nations, or steering economic behavior).
The Founders knew this.
Early Congresses knew this.
The Supreme Court has repeatedly affirmed this.
Even British colonial officials before the Revolution used tariffs this way—and American pamphleteers objecting to “taxation” still admitted Parliament could regulate trade through tariffs.
In other words: tariffs are a tool that can sit in either constitutional bucket depending on why they’re used.
So if Congress grants the President the power to regulate importation, it has—by definition—granted the power to use one of the oldest, most traditional tools for regulating importation: tariffs.
History Supports This… Aggressively
The first Congress enacted the Tariff Act of 1789 to both:
- fund the new government, and
- protect American manufacturing.
Madison said it plainly.
Story said it plainly.
Marshall said it plainly in Gibbons v. Ogden: the commerce power and taxation power are different, but the same tool (like duties) can serve either purpose.
The historical record here isn’t gray. It’s basically fluorescent.
The Court’s Arguments Don’t Hold Up
The District Court leans on a few points, but each one crumbles almost immediately.
1. “If tariffs fall under commerce, the Taxation Clause becomes meaningless.”
Not true.
Congress can raise revenue in multiple ways—income taxes, excises, corporate taxes, etc. Tariffs don’t need to be reserved for taxation just to keep the Clause relevant. The two powers overlap; they’re not mutually exclusive silos.
Even Madison said constitutional overlap is normal. The Constitution is full of redundancy because the framers wanted to be cautious, not minimalist.
2. “Marshall said taxes and commerce are distinct powers.”
Yes—and he also said duties can be used to regulate commerce.
The court quotes Marshall’s distinction but ignores the next part of the opinion where he dismantles their argument.
3. “Dictionaries define tariffs as taxes.”
Okay?
Dictionaries also define tariffs as duties on imports—without specifying whether they’re used for revenue or regulation. Nothing about those definitions excludes regulatory use.
4. “IEEPA says regulate and also says block, prevent, prohibit… none of which suggest taxes.”
Exactly.
They don’t suggest taxes—but tariffs aren’t always taxes. They are also tools that block, prevent, or restrict trade. That’s what regulatory tariffs are.
If anything, the surrounding verbs reinforce that Congress intended broad regulatory power.
Delegation: Why This Doesn’t Violate Nondelegation or MQD
Even if tariffs can regulate commerce, the next question is:
Can Congress delegate that power to the President under IEEPA?
The answer is yes, and the Supreme Court has been clear about why:
Foreign affairs are different.
Cases like Curtiss-Wright recognize that Congress can delegate expansive authority to the President when dealing with foreign nations because the President already has independent foreign-affairs powers.
IEEPA also has real limits:
- It applies only during declared emergencies.
- It applies only to foreign-linked property.
- It excludes entire categories (communications, humanitarian goods, informational materials, etc.).
This is not a “blank check”—the statute is narrower than critics admit.
What Gorsuch Has Already Said About Delegating Power
One of the big missing pieces in the District Court’s analysis is what Justice Neil Gorsuch has already made clear about delegation — especially in the foreign-affairs context.
Gorsuch is known as one of the strongest critics of broad agency power, but even he draws an important line: the Constitution treats foreign affairs differently from domestic regulation.
In his dissent in Gundy v. United States, Gorsuch explained that the nondelegation principle is at its strictest when Congress hands domestic policymaking power to agencies. But when a statute deals with matters already within the President’s constitutional authority — including foreign affairs — the delegation is far less constitutionally problematic.
He points directly to early cases like Cargo of the Brig Aurora (1813), where the Court upheld a statute giving the President authority to control foreign imports based on whether other countries met certain conditions. Why? Because the President already had independent Article II responsibility in foreign relations. Congress wasn’t giving away its power so much as plugging into a domain where the Constitution already expects executive discretion.
Gorsuch’s point is simple but crucial:
If the delegated power falls within a zone where the President already possesses constitutional authority — like foreign commerce, sanctions, diplomacy, or import restrictions — the nondelegation concerns drop way down.
That’s exactly the zone IEEPA occupies.
IEEPA isn’t a random, domestic regulatory statute like OSHA or the EPA.
It is a foreign-emergency statute triggered by external threats and aimed squarely at foreign property, foreign actors, and foreign imports.
Even by Gorsuch’s standards — which are among the strictest on the Court — this type of delegation is the kind the Founders understood, approved of, and repeatedly used.
And that directly undercuts the District Court’s attempt to treat IEEPA like a domestic tax statute requiring Congress to micromanage every tool the President can use.
What the District Court Missed
The District Court tries to reinvent a sharp boundary between “regulating commerce” and “taxing imports.” But the Founders never built that wall. If anything, they built a revolving door.
Tariffs have always been:
- dual-purpose tools,
- used by Congress and Presidents across parties,
- deployed for economic, diplomatic, and strategic reasons,
- and recognized by the courts as valid exercises of the foreign commerce power.
IEEPA gives the President the power to regulate importation.
Regulating importation has always included tariffs.
Full stop.
By insisting Congress say “tariff” out loud, the court turns a flexible constitutional tool into a rigid linguistic puzzle the Founders never intended
So What Actually Happened at the Supreme Court This Week on the Tariff Case?
A lot of major outlets rushed to publish headlines saying the Supreme Court appeared “deeply skeptical” of Trump’s tariffs during oral argument. I get why—they were listening closely to the Court’s grilling of the government’s lawyer. And to be fair, the government did take some heavy fire, especially from Justice Amy Coney Barrett and all three liberal justices.
But as usual, the media stopped listening once that narrative was locked in.
They jumped the gun.
Because when the challengers to the tariffs stepped up to argue, they got hit with equally sharp questions—many of them echoing the points I’ve made throughout this article: the historical use of tariffs to regulate commerce, the foreign-affairs nature of IEEPA, and whether the challengers’ position makes sense of early constitutional practice.
Where the votes likely stand
Here’s the emerging consensus among people following this closely, particularly on the populist right:
- Three likely YES votes (upholding the tariffs):Kavanaugh, Thomas, Alito
- Three likely NO votes (striking down the tariffs):Sotomayor, Kagan, Jackson
That leaves the three “question mark” justices:
Roberts, Barrett, Gorsuch
Barrett looked the most skeptical of the tariffs. Her questions to the challengers weren’t quite as aggressive, and she showed concern about reading IEEPA too broadly.
Gorsuch, based on his prior opinions, should be a YES—he’s written extensively about why delegations in foreign-affairs contexts are different. But he also showed personal skepticism toward tariffs and pressed the government harder than expected. His libertarian streak makes him naturally hostile to trade restrictions, even if the law supports them.
Roberts stayed coy, as he always does. He gave very little away. He could land on either side depending on how he frames the case: as a foreign-affairs delegation (which favors the government) or as a separation-of-powers question (which cuts the other way).
Where things likely stand after argument
Based solely on the hearing, it is reasonable to say the momentum slightly favors the tariffs being struck down. But only slightly. The questions were tough in both directions, and none of the swing justices nailed themselves to the floor.
The markets currently have the tariffs as 75% likely to be rejected.
In my view, that’s way too high.
If you were betting, you would get much better value taking “YES” on the tariffs being upheld. Based on the arguments, this feels much closer to a true 50–50 than the market odds reflect.
We’ll see how it plays out.
(Special thanks to Chad Squitieri who helped inspire this article.)
(Read his take on the tariffs here )
