When it comes to Donald Trump and the law, nothing could be more on-point than the recent saga over his tariffs: two losses, no concrete consequences (yet), chaos ahead. The only near-certainty is that the Supreme Court will settle this, eventually. When and how they’ll decide is anybody’s guess – though we’ll try, in a moment.
The first ruling came from the Court of International Trade. Don’t be misled by the name; this is not some United Nations-like entity that makes pronouncements but lacks enforcement authority; this is a full-fledged, constitutionally-authorized, statutorily-created federal court that specializes in disputes over international trade (“Taxes, Duties, Imposts, and Excises,” as the Constitution puts it).
Last week, in a lawsuit brought by a conglomerate of states and trade groups, a three-judge panel unanimously held Trump’s tariffs invalid. The ruling struck down the tariffs announced on the President’s first day in office against Mexico, Canada, and China, and the worldwide tariffs unveiled on so-called “Liberation Day,” April 2, 2025. The Court found that the International Emergency Economic Powers Act of 1977 (“IEEPA”) – through which Congress empowered the President to regulate foreign commerce to protect against any “unusual and extraordinary threat with respect to which a national emergency has been declared” – did not properly authorize Trump’s tariffs.
The court ruled, first, that the judiciary does have a role in reviewing the president’s determination that an emergency exists and, second, that Trump’s tariffs do not address sufficiently “unusual and extraordinary” economic threats to the United States. Regular readers will recall that we recently diagnosed precisely this self-defeating tendency by the Trump administration to make hyperbolic declarations about emergencies and invasions and the like. Indeed, not everything bad is a full-blown emergency.
The three judges who ruled against Trump had been appointed to the federal bench by Presidents Reagan, Obama and…Trump himself, during his first term. Trump accordingly lashed out against the Federalist Society (which has recommended many of Trump’s conservative judicial nominees) and its founder, Leonard Leo (a “sleazebag” and a “bad person,” according to the commander-in-chief). The President’s outburst was nonsensical; the Federalist Society has been a potent Trump ally and has helped him reshape the courts to his advantage. And, as David Lat notes in his insightful “Judicial Notice” newsletter, the Trump nominee on the tariff case, Timothy Reif, is a Democrat, and Leo likely had nothing to do with his appointment.
Less than 24 hours after the ruling, however, the Court of Appeals for the Federal Circuit (which sits above the Court of International Trade) put it on temporary hold. The appeals court did not address the merits – whether the tariffs are legal – but it did suspend the lower court’s ruling pending the ultimate outcome of the appeal. So, for now: Trump’s tariffs, though adjudged illegal, are back on as the appeals court does its work.
Virtually simultaneously, another federal district court judge in Washington, D.C., struck down the Trump tariffs in a separate lawsuit brought by U.S.-based toy companies that import products from Asia. That judge, Rudolph Contreras (an Obama nominee), concluded that while the emergency powers law does confer certain economic powers on the president, it does not empower him to impose tariffs at all. Judge Contrerars paused his own ruling (“stayed,” in the lingo) for 14 days – we’re smack in the middle of that period now – to allow the court of appeals to weigh in.
The tariff cases are destined for the Supreme Court. While the justices accept only a miniscule fraction of all matters presented to them, the tariff cases feature both factors that tend to draw the Court’s involvement: They involve major issues of national (and international) consequence, and there’s an abiding need for uniformity and finality.
So when will the Court rule? In its current procedural posture, the primary tariff case is on a fast track. Briefs are due to the Federal Circuit court of appeals next week, and the case should reach the Supreme Court for emergency consideration of a temporary pause by the end of June. The underlying merits argument will take months, if not years, so the Court’s emergency ruling will likely determine the issue for the foreseeable future. Until then, markets, investors, and foreign countries will remain on perilously unstable footing.
If and when the Court takes up the tariff cases, we can safely place five of the nine votes: Justices Clarence Thomas and Samuel Alito will back Trump, and the three liberals (Justices Elana Kagan, Sonia Sotomayor, and Ketanji Brown-Jackson) will oppose the tariffs.
The question, then, will be whether two of the remaining four – Chief Justice John Roberts and Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett – will join the liberals in opposition.
On one hand, conservatives generally favor broad Executive Branch power and tend to eschew judicial second-guessing of the duly-elected chief executive. Even if the justices don’t quite see the international economic status quo as a dire emergency, conservatives typically defer to the President on foreign affairs, barring an outlandish abuse of discretion.
On the other hand, Trump’s position is a stretch. How is it suddenly an “economic emergency” to run foreign trade deficits – which aren’t necessarily bad for our economy, and which we’ve had for over forty years running? And, under the “major questions doctrine” embraced by conservatives during recent Supreme Court terms, a sweeping measure like worldwide tariffs would require specific congressional authorization rather than the broad delegation of power in the IEEPA.
Roberts, Barrett and Kavanaugh have shown more willingness to reject the administration’s positions than commonly recognized; Trump reportedly is fuming behind the scenes at all three of his appointed justices, especially Barrett. And Roberts, as Chief, has strained to avoid ideologically-split, six-to-three outcomes on cases that could reshape the American political landscape. On balance, if I had to guess – and mine is as good as yours, or anyone else’s – I’d lean ever so slightly towards the Court striking down the tariffs.
Trump stands to win either way. He might actually win in court, of course, in which case his tariffs stand (which might, perversely, be a long-term political setback for the President and an economic loss for the country). Or Trump might lose, which some conservatives and experts have posited would rescue the President from his own act of economic self-sabotage. If the courts do ultimately strike down the tariffs, count on Trump to blame every subsequent economic failure on the courts: None of this would’ve happened if those lamebrained activist judges had let me impose my beautiful, strong tariffs!
Once again, Trump’s aggressive, scattershot use of executive power has pushed us into new constitutional territory, and only the Supreme Court can resolve the inconclusive mess in the lower courts. We’ve rarely seen a case of quite this import and volatility, even during the Trump era. The stakes are global, the timing is urgent, and the outcome is genuinely in doubt.
