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Lawfare Daily: The Trials of the Trump Administration, Feb. 20

February 23, 2026·1 hr 39 min·5 clips

The Supreme Court just ruled 6-3 that Trump's emergency tariff powers are illegal—what happens to $200 billion in collected tariffs?

Benjamin Wittes hosts a panel including trade law expert Peter Harrell, senior editors Roger Parloff and Eric Columbus, and DOJ fellow Troy Edwards to cover a consequential day at the Supreme Court. The Court ruled 6-3 that IEPA does not authorize tariffs, finding that the statutory power to regulate importation of property does not encompass the power to tax. The majority opinion by Chief Justice Roberts was joined fully by Gorsuch and Barrett, while the three liberal justices concurred in the result but declined to join the portion relying on the major questions doctrine. Harrell explains the ruling is definitive with no carve-outs or exceptions, shutting down IEPA tariffs for trade deficits, fentanyl, or geopolitical leverage alike. The panel notes that approximately 70 percent of Trump's tariff program by dollar value relied on IEPA, with the remaining 30 percent based on Section 232 product-specific tariffs that are unaffected. Trump announced immediate invocation of Section 122, which allows up to 15 percent tariffs for 150 days based on balance-of-payments concerns, and plans for Section 301 investigations into unfair trade practices. Harrell assesses that these fallback authorities could sustain tariffs in the 10-15 percent range but cannot replicate the speed or scale of IEPA tariffs. The refund question looms large: approximately $200 billion in collected tariffs may need to be returned, and the administration has already conceded the Court of International Trade has authority to order refunds. The panel explores the doctrinal debates among the concurrences, including Barrett and Gorsuch disagreeing on the major questions doctrine, Kagan arguing against it, and Jackson pushing for renewed attention to legislative history. The conversation then shifts to Troy Edwards discussing the Trump banner placed on the DOJ headquarters, which he frames as both an obvious symbol of lost independence and a practical problem for litigation, since the department's own statement says it acts at the president's direction. Edwards warns this will accelerate departures of career staff and provide ammunition for defense attorneys arguing vindictive or selective prosecution. The episode closes with the civil contempt case against Special Assistant U.S. Attorney Matt Isahara in Minnesota, a JAG officer assigned 126 to 129 cases in a single month who missed filing deadlines in a habeas case, resulting in a $500 per day contempt finding that illustrates the operational breakdown caused by staffing federal courts with reassigned military personnel.

As heard by us

A live look at tariffs, executive power, and pressure on federal institutions.

Lawfare Live opens with the Supreme Court's 6-3 decision striking down the President's Tariff Initiative under IEPA, then widens into a discussion of executive power and the strain on federal institutions.

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You want the Supreme Court's 6-3 tariff ruling unpacked by people who know trade law.

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