The Lawfare Podcast · The Lawfare Institute

Rational Security: The “Off the Rails” Edition

February 26, 2026·1 hr 17 min·5 clips

Why the Supreme Court's tariff ruling challenges Trump's maximalist view of presidential power in foreign affairs.

Scott Anderson hosts this episode of Rational Security with Molly Roberts, Tyler McBrien, and guest Paul Stephen, a professor at the University of Virginia School of Law. The first and longest segment covers the Supreme Court's 6-3 ruling that the International Emergency Economic Powers Act does not authorize tariffs. The majority included Chief Justice Roberts, Barrett, and Gorsuch joining the three liberal justices, which Paul Stephen says he expected based on oral arguments. The court found that IEEPA's language authorizing the regulation of importation does not encompass the power to impose tariffs, grounding this conclusion in the constitutional principle that taxation is the most powerful authority given to the federal government and must be expressly delegated. Stephen highlights Gorsuch's lengthy concurrence on the major questions doctrine and notes that six justices are trying to distance themselves from their prior positions on MQD, with liberals softening their opposition and the most conservative justices retreating from aggressive application. Kavanaugh's dissent argued for broad executive deference in foreign affairs, but Stephen warns this approach would mean everything outward-facing invokes inherent executive authority, which he finds unacceptable. The panel discusses what the ruling means for Trump's ability to reimpose tariffs through other statutes. The balance of payments authority has hard caps of 15 percent and 150 days, while Section 232 national security tariffs require time-consuming findings. Stephen argues the administration's confidence about alternative statutory authorities may be overstated, particularly in light of the court's new interpretive presumption against revenue-raising capability and its refusal to treat trade as a foreign affairs case warranting heightened deference. Anderson notes that in a post-Loper Bright world, the traditional extreme deference of the Federal Circuit in trade cases may not survive Supreme Court scrutiny. Stephen makes the broader point that the court's emphasis on money mattering, citing Madison's language about picking the taxpayer's pocket, has implications for other Trump administration revenue-raising measures like the 25% NVIDIA deal and minerals deals with Ukraine. The second segment covers the killing of Jalisco New Generation Cartel leader Nemesio Oseguera Cervantes, known as El Mencho, by an elite Mexican army unit. Tyler McBrien explains that the operation followed U.S. intelligence sharing and Trump's pressure campaign on President Scheinbaum. Violence immediately erupted across Mexico, including in tourist areas like Puerto Vallarta. McBrien notes that the kingpin strategy is widely criticized as a decapitation approach and is particularly unlikely to work against this decentralized cartel. The CJNG operates diverse criminal enterprises from fentanyl trafficking to timeshare fraud. The third segment covers Trump's State of the Union address, described as the longest in history. Despite expectations of confrontational rhetoric toward the Supreme Court justices present, Trump pulled his punches on that front and did not announce strikes on Iran. The panel discusses the speech's effectiveness and what it reveals about the current state of the second presidency. Molly Roberts cautions against reading too much into the tariff ruling as evidence the court will broadly check Trump, noting the court did not address the emergency powers question and answered only a narrow statutory question.

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A court-focused episode that turns Supreme Court splits into something concrete.

Rational Security starts with a few train-station anecdotes, then settles into a court-centered conversation that makes the legal politics feel concrete.

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Start here if you want a legal-political conversation that begins off topic and lands on Supreme Court fault lines.

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