Supreme Court throws out Trump’s tariffs, upholds Constitution
So much for the notion that the Supreme Court, with its 6-3 majority of justices appointed by Republican presidents, was going to be a rubber stamp for Donald Trump. That is a frequently voiced charge by partisan Democrats, and a fear of many ambivalent voters who find many of Trump’s policies agreeable but worry about his overreach.
That’s one political meme refuted by the court’s Learning Resources v. Trump decision, announced after more than the expected delay for the drafting of concurring opinions. The court struck down Trump’s beloved tariffs, with only one Republican-appointed justice taking the president’s side while the majority consisted of three Republican-appointed and three Democratic-appointed justices.
Such a result should not have surprised those with some appreciation of Supreme Court history. Franklin Roosevelt, after seeing several of his New Deal programs ruled unconstitutional, and after unsuccessfully urging Congress to pack the court with new justices, finally ended up filling eight of the court’s nine seats.
Justices newly appointed in times when Supreme Court decisions are subjects of partisan disputes tend to agree on contemporary issues. But in time, new problems arise, to which they turn out to have differences. And animosity: Some of the Roosevelt appointees even stopped speaking to each other.
Learning Resources doesn’t prevent Trump from using other tariff laws, but they, as Chief Justice John Roberts’ opinion of the court notes, “contain various combinations of procedural prerequisites, required agency determinations and limits.” That means he wouldn’t have, in the chief justice’s evidently irritated phrasing, “the extraordinary power to unilaterally impose tariffs of unlimited amount, duration and scope.”
Learning Resources, as anti-Trump conservative David French wrote in The New York Times, “may prove to be the most important Supreme Court case this century,” because it fortifies the “major questions doctrine,” celebrated in Justice Neil Gorsuch’s extraordinary 46-page concurrence.
The Supreme Court, with majorities made up of Republican appointees, used the major questions doctrine to overturn major Biden administration policies — cancellation of student loans (based on authorization to “waive or modify” them), eviction moratorium (based on preventing “transmission of communicable diseases”) and vaccine mandate (based on “safety and healthy work conditions.”)
Is this evidence of the kind of discord that divided the Roosevelt-appointed justices so many years ago? Maybe, and the justices don’t seem as collegial now as they did before someone — a liberal justice’s law clerk? — leaked a draft of Justice Samuel Alito’s opinion overturning Roe v. Wade.
But the thrust of Justice Neil Gorsuch’s concurrence is that the justices are functionally in agreement with the major questions doctrine, even if they’re uncomfortable saying so.
It’s hard for Congress to set policy as explicitly as the major questions doctrine seems to require when the two parties have significant disagreements, are in close competition, and are disincentivized to accept compromise when they reasonably hope that the next presidential election will give them the White House and congressional majorities.
That has been the situation for the last 30-some years, in which Democrats have won most presidential elections and Republicans have usually won majorities in the House of Representatives. After three decades, new issues arose and new voter coalitions emerged.
Meanwhile, the Trump administration may search the statute books for verbiage it can use to justify some limited tariff authority, just as the Biden administration searched the statute books to find verbiage to justify loan forgiveness.
But the Supreme Court, regardless of partisan labels, seems ready to use the major questions doctrine to limit the billions of dollars that can be raised or spent without some clear authorization in laws passed by Congress. And someday a president will figure out how to persuade Congress to pass laws authorizing all or some of what she or he wants.
