Today, the Supreme Court is hearing arguments in the landmark case of Learning Resources, Inc. v. Trump, which will determine whether President Trump can use an emergency declaration to unilaterally impose tariffs on foreign goods that Americans buy, as he did earlier this year.
Although the Constitution is pretty clear that only Congress has the power to tax, the Trump administration cited a 1977 law called the International Emergency Economic Powers Act to justify the suite of tariffs it rolled out on April 2—what Trump called “Liberation Day.”
According to the president and his lawyers, the fact that the country has a trade deficit—that American consumers spend more on goods and services from foreign producers than American businesses make from sales to foreign consumers—is a national emergency.
Trump considered attending the hearing himself over the weekend. He eventually decided against it, but stressed to his followers on Truth Social that he views this case as “one of the most important in the history of the country.”
The president clearly wants his allies on the Supreme Court to understand that he would take a ruling against him very personally. And, based on their previous rulings, the Court’s Trump-friendly majority probably wants to again give a green light to Trump’s expansion of executive authority.
But that could prove difficult. To strike down several of Biden’s more blatant power grabs, this Court relied on the so-called “major questions doctrine,” which requires Congress to use plain and direct language to authorize sweeping economic actions by the executive branch. All that the 1977 law Trump is using to justify his tariffs authorizes him to impose are “regulations” on imports.
It would be transparently hypocritical for these justices to agree that “tariffs,” “taxes,” or “duties” can be implied by the word “regulations” when they just refused to grant that level of leniency to the previous administration.
Which isn’t to say it won’t happen. The idea that the Supreme Court, and the entire federal judiciary, are independent, non-political entities driven solely by a commitment to the letter of the law is, after all, a myth.
But it’s still a difficult position for Trump’s allies on the Court. And further, it’s more evidence that Trump has abandoned his promise to rein in the power of the federal bureaucracy.
As Ryan McMaken pointed out back in April, Trump claiming unilateral control over the power to levy taxes is not at all unprecedented. That’s the direction the federal government has been moving for well over a century, as more and more of Congress’s core powers get transferred to the White House and the executive agencies making up the administrative state.
Further, the executive branch using “emergencies” it declares to justify its own power grabs has been one of the primary ways the executive state has grown in general.
In recent years, crises like the 9/11 attacks, the collapse of the housing bubble, and the covid pandemic have been used to give the permanent federal bureaucracy significantly more control over our lives.
But there have been some bright spots on this front. One of them was the Supreme Court’s embrace of the major questions doctrine, which restricted the administrative state’s ability to interpret vague language in legislation in whichever way granted itself the most power. On top of that, last year, the Court overturned the so-called Chevron doctrine.
Taking its name from the 1984 case involving the energy company Chevron that established it, the Chevron doctrine held that, whenever a dispute arose between citizens and an executive agency because of ambiguous language in legislation relating to the agency’s function, the courts were to defer to the agency’s interpretation of the law. The overturn meant victims of the administrative state’s most flagrant power grabs wouldn’t have to wait for their case to get all the way to the Supreme Court to see justice.
Together, these various rulings dealt a serious blow to the administrative state. And, because they were largely driven forward by justices appointed by Trump, they were framed as part of Trump’s broader effort to roll back the permanent, administrative bureaucracy in DC—or to “drain the swamp,” as he called it.
But now that Trump is president, he, his team, and many of his supporters have not only lost interest in reining in executive power, they want to expand it themselves.
That is not necessarily a bad thing in itself. As some firm opponents of the administrative state have argued, a strong executive that is just as willing to shirk constitutional restraints as the previous administrations have been could well be the most realistic vessel for meaningfully rolling back federal power.
If Trump, for instance, had declared all the financial pain the American people have suffered as a result of the income tax to be a national emergency and then unilaterally forced the country back to the nineteenth century government funding set-up that Trump has lauded—where minimal government programs were funded almost entirely by a relatively small-tariff regime—that would be a massive win for liberty.
But that’s not what Trump is doing. Instead, he’s left the entire income tax system in place and kept government spending at virtually the same level as Biden, and then added a sweeping tariff regime on top of it.
The political establishment does not like Trump’s tariffs because, in addition to hurting normal everyday Americans, they’re also bad for big business. And so it’s entirely possible we’ll see Trump’s power to impose them get rolled back in some cases.
But the establishment must also be wary about going too far to rein in executive power that they will, in all likelihood, wield again soon. So don’t expect them to fight too hard on your behalf.
