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Lawfare Daily: The Tariffs Decision and What Comes Next

March 4, 2026·54 min·5 clips

The Supreme Court issued its broadest possible ruling because Trump abused tariff power with daily arbitrary changes.

Senior Editor Scott Anderson leads a discussion with Georgetown Law professors Kathleen Klausen, Marty Lederman, and Peter Harrell about the Supreme Court's decision striking down President Trump's IEPA-based tariffs. The 6-3 majority held that IEPA, a 1977 emergency powers statute, does not authorize tariffs, invalidating both the global reciprocal tariffs applied to all U.S. trading partners and the trafficking tariffs imposed on Canada, Mexico, and China. The majority opinion by Chief Justice Roberts featured two analytical threads: conventional statutory interpretation joined by all six majority justices, and a major questions doctrine analysis that the three Democratic appointees declined to join. Justice Barrett and Justice Gorsuch wrote separately, disagreeing about whether the major questions doctrine has constitutional foundations or is merely an interpretive tool. Justice Kagan's concurrence, joined by Sotomayor and Jackson, rejected the major questions doctrine entirely. The dissenters, Alito, Kavanaugh, and Thomas, argued for broad presidential deference in foreign affairs, with Kavanaugh anchoring his position in the tradition of expansive delegation going back to Curtis-Wright. Marty Lederman argues the ruling is a classic case of executive power abuse producing the broadest possible judicial restriction. He hypothesizes that if Trump had used IEPA only for narrow geopolitical tariffs, such as pressuring India over Russian oil purchases, the court might have ruled 9-0 in the president's favor. Instead, Trump's pattern of arbitrary daily changes, described in detail on page three of Roberts' opinion, where Chinese tariff rates went from 10% to 20% to 84% to 125% within weeks, pushed the court to rule categorically that IEPA never authorizes tariffs. The panel discusses the taxing clause as a pivotal framing device. Peter Harrell notes that tariffs were the primary source of federal revenue for the first several decades after the founding, making this exactly the type of tax the framers were discussing when they vested taxing power specifically in Congress. The court's emphasis that Congress must explicitly delegate taxing power could have ramifications for other Trump administration revenue-raising efforts, including the proposed tax on NVIDIA chip sales to China and ownership stakes in foreign-funded investments. Kathleen Klausen provides trade law context, noting that before the ruling, approximately six major statutes allowed the president to impose economic actions on national security grounds; now there are five. She cautions against celebrating too much, since the president immediately pivoted to Section 122 of the 1974 Trade Act. Section 122 allows a 10% tariff for up to 150 days when there are fundamental international payments problems. Peter Harrell questions whether the statutory preconditions are met, noting the provision was drafted during the transition off the gold standard to address concerns about fixed exchange rates that no longer apply. The panel also discusses Section 232 and Section 301 tariff authorities as the next lines of legal battle. The foreign affairs versus domestic framing of trade policy emerges as a key fault line. Marty Lederman compares the case to Youngstown, where Truman's seizure of steel companies was pitched as a wartime measure but the court treated it as a domestic action. Trade occupies both categories simultaneously, drawing on the taxing clause and the foreign commerce clause, which makes bright-line distinctions difficult. The discussion notes that Trump announced Section 122 tariffs within hours of the Supreme Court opinion, and that various 232 and 301 investigations were already underway before the ruling.

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