For the past year, the liberal commentariat has decried the Supreme Court for being just an adjunct of the Trump administration. The Brennan Center for Justice argued that, despite the nation’s “democratic backsliding” under Trump, the Court “keeps ruling in Trump’s favor.” Noted legal scholar Kate Shaw said on a New York Times podcast that the Court’s conservatives “really are just partisan justices in support of Donald Trump.” Shaw and others on the Left have advocated for radical court reform, which for some included court-packing, to force it to support their version of American democracy.
The argument that the Supreme Court kowtowed to whatever President Trump wanted was foolish before, and became insupportable after, Friday’s announcement of the decision in Learning Resources v. Trump, which overturned the most important part of Trump’s tariffs policy. The ruling shows the Court is still performing the traditional conservative function of limiting the power of the administrative state, under presidents of all stripes.
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If the Supreme Court were merely interested in supporting Trump’s preferences, it could hardly have found a better case to do so than Learning Resources. Trump has long had a fascination with tariffs. He has declared himself a “tariff man” and said that “the most beautiful word in the dictionary is ‘tariff.’” He has said that the ruling in Learning Resources could be “literally life or death for our country.”
The announcement of Trump’s global tariffs last April 2, what he termed “Liberation Day,” was inarguably the most important economic event of his term so far. On that day, Trump invoked the International Emergency Economic Powers Act (IEEPA), passed in 1977, to place tariffs of anywhere between 10 percent and 50 percent on imports from almost every country on Earth. The act led to international economic turmoil and a series of deals between Trump and other nations to provide investment or other economic supports for the United States in exchange for reduced tariffs. The Court understood the immense importance of the case, to both the president and the economy, when it agreed to take it up.
The companies challenging the tariffs said that IEEPA did not seem to give the president power to impose tariffs at all. The act allowed the president to “regulate . . . importation or exportation” from other countries if he declared a national emergency. The president’s lawyers claimed that the term “regulate” included a power to tax and tariff; the companies said that it did not. On such linguistic subtleties the fate of hundreds of billions of dollars depended.
The Court might have deferred to the president’s understanding of the law if not for another of its rulings from just four years ago, a decision at the time widely decried by the Left. In West Virginia v. EPA, the Court affirmed the “major questions doctrine,” which said that the president or executive administrators could not take actions of major importance unless Congress gave them that power in unambiguous terms.
The Left argued that the West Virginia case was just an excuse to support deregulation and Republican priorities. But in the Learning Resources ruling, Chief Justice John Roberts, accompanied by two conservative justices, noted that it was hard to think of a clearer case of a major question than tariffs imposed across the entire globe. Roberts even quoted Trump’s previous invocation of the importance of the tariffs to make his case. It seems the major questions doctrine does not have a clear partisan slant.
The Left’s previous attacks on the West Virginia decision, the major questions doctrine, and other Court rulings against executive action are ironic in light of its new obsession with the Supreme Court countering Trump. In reality, one of the defining factors in Chief Justice Roberts’s tenure has been reining in executive power and cabining the power of administrative agencies to affect the economy. According to one academic analysis, the Roberts Court has been the “most ‘anti-president’ Court” in modern times.
Before Learning Resources, some claimed that the Court constrained presidential power only when it came from the Left. But the Court has long been active in countering Trump in particular. As the Washington Post noted near the end of his first term, “Trump has the worst record at the Supreme Court of any modern president.” At the time, he was the only president that won less than half of the cases in which he was engaged.
The Left’s attacks against an authoritarian presidency and supposedly quiescent Supreme Court were always incoherent. For more than a century, the Left has advocated ever-greater executive power, has cheered giving administrators increased authority to run the economy without the say of Congress, and has attacked any effort by the Court—such as West Virginia v. EPA—to curb those tendencies. The Left raised no ruckus about executive overreach when President Joe Biden unilaterally tried to cancel hundreds of billions of dollars in student loans or ban the production of most gas-powered cars.
The Learning Resources case, as Justice Brett Kavanaugh notes in a dissent, still gives the president authority to impose tariffs through other congressional statutes, and Trump will doubtless take advantage of these. But Congress in those other laws both gave the president clear authority to impose tariffs and put in place guardrails about when and how they can be imposed. Roberts’s ruling in Learning Resources shows that his long campaign against unilateral executive control of the economy continues, regardless of who’s in the White House—and no matter what the partisans say.
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