After only approximately three and a half months, the Supreme Court issued its opinion in the Trump Tariff case. The speed, and the fact that opinion was released so early in the court’s term, should indicate both how urgent the case was, and how impactful.

IEEPA
Yes, this case is about presidential tariffs, but Trump used the International Emergency Economic Powers Act (IEEPA) as justification for his claim of power to to impose tariffs.

The question presented is whether the International Emergency Economic Powers Act (IEEPA) authorizes the President to impose tariffs.
— Learning Resources, Inc. v. Trump

This legislation was created in 1977 as a revamp of previous laws regarding allowing an acting president to regulate foreign commerce in an emergency.

The President determined that the drug influx had “created a public health crisis,” . . . and that the trade deficits had “led to the hollowing out” of the American manufacturing base and “undermined critical supply chains,” . . . The President declared a national emergency as to both threats, deeming them “unusual and extraordinary,” and invoked his authority under IEEPA to respond.
— Learning Resources, Inc. v. Trump

President Trump sees both the drug trade and our trade deficit as an “unusual and extraordinary” emergency. Seeing as both have been part of American life for decades, I’m not sure unusual and extraordinary is an accurate description. Regardless, the president invoked IEEPA, and went a step further by imposing tariffs, but there’s a problem with that.

Article I, Section 8, of the Constitution specifies that “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises.” The Framers recognized the unique importance of this taxing power—a power which “very clear[ly]” includes the power to impose tariffs. … And they gave Congress “alone . . . access to the pockets of the people.” [The Federalist No. 48, p. 310 (J. Madison)]. The Framers did not vest any part of the taxing power in the Executive Branch.
— Learning Resources, Inc. v. Trump

If the power to “lay and collect” taxes is delegated to Congress and not the executive branch, where does the President claim to get this power?

. . . the President enjoys no inherent authority to impose tariffs during peacetime. It instead relies exclusively on IEEPA to defend the challenged tariffs. It reads the words “regulate” and “importation” to effect a sweeping delegation of Congress’s power to set tariff policy—authorizing the President to impose tariffs of unlimited amount and duration, on any product from any country.
— Learning Resources, Inc. v. Trump

The president has no inherent authority to impose tariffs, but did Congress, through IEEPA, allow the president to do so? Not exactly.

Delegation of Authority
The court split 6–3. The question of “ambiguous text” was a serious point among the dissenters. Justices Gorsuch and Barrett, along with Chief Justice Roberts, were reluctant to read into such texts, especially when it comes to the delegation of congressional powers.

. . . here, the purported delegation involves the core congressional power of the purse. Congressional practice confirms as much. When Congress has delegated its tariff powers, it has done so in explicit terms and subject to strict limits.
— Learning Resources, Inc. v. Trump

Because the power to tax is inherently congressional, the president has a hurdle he must surpass, creating another topic of difference within the court

The President must “point to clear congressional authorization” to justify his extraordinary assertion of that power. . . . He cannot.
— Learning Resources, Inc. v. Trump

And there’s the rub. There is congressional authorization for the president to regulate commerce in an emergency, but where is the authorization to impose tariffs?

IEEPA authorizes the President to “investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit . . . importation or exportation.” §1702(a)(1)(B). Absent from this lengthy list of specific powers is any mention of tariffs or duties. Had Congress intended to convey the distinct and extraordinary power to impose tariffs, it would have done so expressly.
— Learning Resources, Inc. v. Trump

IEEPA delegates a fairly lengthy list of powers that the president may enact in an emergency, but tariffs and duties are not among them.

Justices Kagan, Sotomayor, and Jackson agreed that IEEPA does not authorize the President to impose taxes.

Thomas Dissent
Justices Thomas and Kavanaugh published dissents to this opinion. Let’s start with Justice Thomas.

Throughout American history, the authority to “regulate importation” has been understood to include the authority to impose duties on imports.
— Learning Resources, Inc. v. Trump, Justice Thomas, dissenting

50 U.S.C. §1702(a)(1)(B) states:

(B) investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest by any person, or with respect to any property, subject to the jurisdiction of the United States.
— 50 U.S.C. §1702(a)(1)(B)

That means there’s a long list of things the president can do, but none of them include the power to tax. However, that doesn’t stop Justice Thomas from claiming it does.

The meaning of that phrase was beyond doubt by the time that Congress enacted this statute, shortly after President Nixon’s highly publicized duties on imports were upheld based on identical language. . . . The statute that the President relied on therefore authorized him to impose the duties on imports at issue in these cases.
— Learning Resources, Inc. v. Trump

Previous legislation, the Trading with Enemies Act, was what President Nixon used to justify the tariffs mentioned. Justices Thomas and Kavanaugh both claim that since a previous court’s opinion did not find those tariffs unconstitutional, the word “regulate” was redefined to include the power to tax. And of course, no Supreme Court has ever gotten an opinion wrong, right? Dred Scott, Koramatsu, and Plessy v. Ferguson are just a few. Even this court recently overturned Roe v. Wade and Lemon v. Kurtzman. So I don’t think that argument holds up. Just because a previous court made up a definition of a word doesn’t make it true or constitutional.

Non-Delegation Doctrine
Justice Thomas also got into the question of the non-delegation doctrine, which focuses on core congressional powers.

The Constitution’s separation of powers forbids Congress from delegating core legislative power to the President. This principle, known as the nondelegation doctrine, is rooted in the Constitution’s Legislative Vesting Clause and Due Process Clause.
— Learning Resources, Inc. v. Trump

I understand the Legislative Vesting Clause, but it seems that Justice Thomas is trying to limit the core legislative powers of Congress using the Fifth Amendment’s Due Process Clause. It seems Justice Thomas is trying to find a way to have his cake and eat it too. Congress delegates its legislative power every time it creates an executive agency with the power to make rules with the force of law.

What are the core legislative powers of Congress? Would they not be the powers vested in Congress by the Constitution? Justice Thomas goes on.

Congress may delegate the exercise of many powers to the President. Congress has done so repeatedly since the founding, with this Court’s blessing.
— Learning Resources, Inc. v. Trump

Remember, the non-delegation doctrine is not a part of the Constitution. It’s a “doctrine” created by the courts. It appears one they only bring out when it suits their agenda, since the courts seem to have no problem with Congress delegating its lawmaking powers to executive agencies.

That said, Justice Thomas does have a point. Congress has the power to both lay and collect taxes. Since collecting taxes is an executive function, not a legislative one, Congress passes laws one could say delegates the power to collect taxes to the president. That is a fulfillment of separation of powers.

Yes, Congress could pass a law that allows the president to impose duties on imports, and in fact they have done so several times. But there’s nothing in the language of IEEPA that delegates such power. After all, in the long list of powers Congress gave the president in IEEPA, nowhere is the power to impose taxes, tariffs, or duties.

Kavanaugh Dissent
Justice Kavanaugh seemed to try to read into IEEPA something that is not in the language.

Statutory text, history, and precedent demonstrate that the answer is clearly yes: Like quotas and embargoes, tariffs are a traditional and common tool to regulate importation.
— Learning Resources, Inc. v. Trump

I would beg to differ. The word “regulate” is defined as:

To control or direct according to rule, principle, or law.
— Regulate – The Free Legal Dictionary

To claim that the statutory text shows that the power to impose tariffs was a part of regulating importation just isn’t true. If Congress went through the effort of listing numerous ways the president could be involved in foreign commerce, you would think that if they meant to include imposing tariffs, they would have said so. As for Justice Kavanaugh’s claim that history shows that the power to regulate including the power to tariffs, I point to the fact that Congress has, on several occasions, specifically included that power to impose tariffs and duties when delegating powers to the President. So again, if Congress wanted to delegate to the President the power to impose tariffs, why didn’t they say so in IEEPA?

In 1971, President Nixon imposed 10 percent tariffs on almost all foreign imports. He levied the tariffs under IEEPA’s predecessor statute, the Trading with the Enemy Act, which similarly authorized the President to “regulate . . . importation.” The Nixon tariffs were upheld in court.
— Learning Resources, Inc. v. Trump

And we all know that the members of the courts never get anything wrong.

Conclusion
Everyone apparently agrees that the president does not have inherent power to impose tariffs. So the real question comes down to this: Does the IEEPA authorize the President to impose tariffs? According to six of the justices, it does not.

The three dissenting justices claimed that the power to “regulate” included the power to impose tariffs, even though that language does not exist in the law. They claim that when the statute listed nine specific things the president can do under this law, Congress just assumed “regulate” included the authority to impose tariffs. They also apparently ignored the occasions when Congress specifically delegated the power to impose tariffs to the president.

Where does this leave the country? First off, remember that courts have neither force nor will, but merely judgment, and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments (Federalist #78). Meaning the court can complain all it wants, but it cannot force the President to comply. Should the President ignore this decision, it could be grounds for his impeachment.

While there have been many foreign policy gains from these illegal tariffs, there has also been a lot of harm. Will there be a redress of these grievances? Will the Treasury refund tariffs collected under IEEPA to the importers?

This time, it appears the court got it right. The majority followed the law and the Constitution rather than the mistaken opinions of the past.