The Supreme Court’s 6-3 ruling striking down President Donald Trump’s sweeping “Liberation Day” tariffs did not fall on ideological lines, and it split the conservative majority down the middle in a consequential decision for Trump’s economic agenda.
Chief Justice John Roberts wrote the majority opinion that found the International Emergency Economic Powers Act does not authorize the president to impose tariffs. While the high court has a 6-3 conservative majority, three of the conservative justices dissented, while the other three joined with all three liberal justices to form the majority. Among both the majority and the minority, some justices split on the nuances of the case.
Roberts writes majority while Gorsuch and Barrett write separate opinions concurring
Roberts’s majority was joined entirely by Justices Neil Gorsuch and Amy Coney Barrett, but both wrote separate opinions.
Gorsuch issued a lengthy concurrence examining the opinions wrote by Justices Clarence Thomas, Elena Kagan, Brett Kavanaugh, and Barrett, largely discussing the major questions doctrine, requiring Congress to explicitly delegate an agency or the president a power in the law in order for the executive branch to have it. He also nodded at people disappointed that Trump’s tariffs would be struck down by Friday’s ruling, arguing that Congress must be the one to issue tariffs.
“For those who think it important for the Nation to impose more tariffs, I understand that today’s decision will be disappointing,” Gorsuch wrote. “All I can offer them is that most major decisions affecting the rights and responsibilities of the American people (including the duty to pay taxes and tariffs) are funneled through the legislative process for a reason.”
“Yes, legislating can be hard and take time. And, yes, it can be tempting to bypass Congress when some pressing problem arises,” he added. “But the deliberative nature of the legislative process was the whole point of its design. Through that process, the Nation can tap the combined wisdom of the people’s elected representatives, not just that of one faction or man.”
Barrett used her concurrence to comment on Gorsuch’s opinion on the major questions doctrine, disagreeing with many aspects of his view.
“I understand Justice Gorsuch to require Congress always to speak precisely to any major power that it intends to give away,” Barrett wrote. “As I have said before, I think that other, ‘less obvious’ clues can do the trick. I do not see any such clues here; in fact, as the Court explains, the clues we have point in the opposite direction.”
Conservatives equally split on the high court’s judgment
Beyond the fact that they split evenly on the high court’s overall judgment that Trump’s “Liberation Day” tariffs were unconstitutional, the conservative justices had minor differences of opinion among themselves.
Two Trump appointees on the bench, Gorsuch and Barrett, opted to strike down the tariffs while Kavanaugh dissented from the majority’s judgment. Among the former President George W. Bush appointees, only one voted to strike down the tariffs — Roberts — while Justice Samuel Alito upheld the tariffs.
The principled dissent, written by Kavanaugh, explained why the three conservative justices disagreed that the International Emergency Economic Powers Act does not confer tariff power to the president in emergencies, but also stressed that the “interim effects” of the majority’s ruling could be “substantial.”
“The sole legal question here is whether, under IEEPA, tariffs are a means to ‘regulate…importation.’ 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,” Kavanaugh said for the dissent.
Kavanaugh’s dissent also outlined how Trump could use other laws to implement tariffs, noting the majority’s decision “is not likely to greatly restrict Presidential tariff authority going forward.” Trump praised Kavanaugh’s dissent on Friday afternoon and said he would still pursue his tariff agenda using other laws.
Thomas also wrote his own dissent, saying he joined Kavanaugh’s opinion in full, but also arguing that IEEPA does not unconstitutionally delegate any core legislative powers to the executive, as the majority claimed that giving the president emergency tariff powers would do.
Liberal justices split off from part of Roberts’s opinion
The three liberal justices were unified in their judgment. All three partially signed on to Roberts’s majority opinion, and all three signed on to Kagan’s concurrence.
Kagan explained that while she agrees with the “conclusion” and “the bulk of the principal opinion’s reasoning,” she does not agree with “invoking the so-called major-questions doctrine.”
“For all those reasons, straight-up statutory construction resolves this case for me; I need no major-questions thumb on the interpretive scales. IEEPA gives the President significant authority over transactions involving foreign property, including the importation of goods. But in that generous delegation, one power is conspicuously missing,” Kagan wrote.
“Nothing in IEEPA’s text, nor anything in its context, enables the President to unilaterally impose tariffs. And needless to say, without statutory authority, the President’s tariffs cannot stand,” she added.
Justice Ketanji Brown Jackson also wrote her own concurring opinion, saying the legislative history should be the main factor instructing their decision to strike down the tariffs.
“In these cases, the legislative history provides helpful evidence of ‘what Congress was trying to do’ in
IEEPA. Given that evidence, we need not speculate or, worse, step into Congress’s shoes and formulate our own views about what powers would be best to delegate to the President for use during an emergency,” Jackson said.
SUPREME COURT STRIKES DOWN TRUMP’S SWEEPING ‘LIBERATION DAY’ TARIFFS
“When Congress tells us why it has included certain language in a statute, the limited role of the courts in our democratic system of government—as interpreters, not lawmakers—demands that we give effect to the will of the people,” she added.
While the dense, 170-page ruling contained several opinions, both concurring and dissenting from the majority holding, two justices did not write their own opinions on the legality of a president issuing tariffs under IEEPA — Justices Sonia Sotomayor and Samuel Alito. Sotomayor joined most of Roberts’s majority opinion and Kagan’s concurring opinion, while Alito only joined Kavanaugh’s dissenting opinion.
