On the question of President Trump’s emergency tariffs, the Supreme Court has spoken. In the court’s view, the International Emergency Economic Powers Act does not authorize the president to impose tariffs during a declared emergency, namely, the massive trade deficits that threaten our economic security.
But the court’s decision in Learning Resources, Inc. v. Trumpwas highly fractured. Only three justices — Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson — held that the law, under normal principles of statutory construction, does not give the president authority to impose tariffs.
A tariff wears two hats. It can function as a tax, but it can also operate as an instrument of foreign policy.
Justice Brett Kavanaugh’s dissent, joined by Clarence Thomas and Samuel Alito, quite persuasively demonstrates why that is not the case. As Justice Thomas noted in his separate dissent, the power to “regulate … importation” has throughout American history “been understood to include the authority to impose duties on imports.”
The other three justices who formed the majority — Chief Justice John Roberts and Justices Neil Gorsuch and Amy Coney Barrett — resorted to the major questions doctrine. This principle of statutory interpretation holds that Congress must speak with super clarity on issues of “economic and political significance” for the Court to approve a delegation to the executive.
The turn to the major questions doctrine implies that the statute, under normal principles of statutory construction, authorizes the president’s action, a point that Justice Gorsuch explicitly conceded in his concurring opinion.
But here’s the rub. The court has never previously applied the major questions doctrine in the foreign policy arena — and for good reason. Under Article II of the Constitution, the president has the core responsibility for foreign policy. Chief Justice Roberts acknowledged as much, stating in the part of his opinion that garnered only three votes that “as a general matter, the President of course enjoys some ‘independent constitutional power[s]’ over foreign affairs ‘even without congressional authorization.'”
That’s quite an understatement. The failure to recognize the full measure of that fundamentally important piece of constitutional law is the first fatal flaw in the chief justice’s opinion.
The key Supreme Court case on this point is United States v. Curtiss-Wright Export Corp. (1936), which Roberts does not mention. In that case, Justice George Sutherland, writing for a near-unanimous court, articulated the principled distinction between foreign and domestic powers: “In this vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation.”
Then, quoting John Marshall’s “great argument of March 7, 1800, in the House of Representatives,” Sutherland added, “The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.”
The main issue in the case was whether Congress could delegate to the president the authority to prohibit the sale of arms to either side in a war between Bolivia and Paraguay. But Sutherland did not rely solely on the act of Congress. He wrote:
It is important to bear in mind that we are here dealing not alone with an authority vested in the President by an exertion of legislative power, but with such an authority plus the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations — a power which does not require as a basis for its exercise an act of Congress.
In other words, President Roosevelt had the power to ban the sale of arms even without the act of Congress at issue.
The same should be true in Learning Resources, Inc. v. Trump. Thomas’ dissenting opinion convincingly demonstrates why that is the case. While the chief justice claimed that Solicitor General D. John Sauer conceded that “the President enjoys no inherent authority to impose tariffs during peacetime,” that’s not exactly what Sauer said. Rather, he argued that the statute delegated such authority to the president. Under Curtiss-Wright, a claim of inherent authority over foreign policy should still be viable.
In the part of the Curtiss-Wright opinion I elided above, Sutherland noted that the president’s power over foreign affairs, “like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution.”
For Roberts, the fact that the taxing power is vested exclusively in Congress — and that any bill “for raising revenue” must originate in the House of Representatives — further confirmed that Congress had not delegated to the president any authority to impose tariffs. The point lands a bit oddly, given Roberts’ earlier willingness to treat Obamacare as a tax even though the bill originated in the Senate.
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That move exposes the court’s second fatal flaw: a tariff wears two hats. It can function as a tax, but it can also operate as an instrument of foreign policy.
President Trump’s tariffs plainly fell into the latter category, even if they also happened to raise substantial revenue. This dual character is not unique to presidential tariffs; the Constitution itself recognizes it in a related provision. Article I, Section 10, Clause 2 provides that “No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws.”
That clause reflects the same two-hat reality. An impost or duty — akin to a tariff — can be a revenue measure, but it also can serve a regulatory end tied to a state’s police power. Congress’ exclusive authority to impose taxes under Article I, Section 8, does not erase the states’ limited ability to levy duties for a different purpose: enforcing inspection laws to protect health and safety.
So too with tariffs. The fact that duties and imposts fall within Congress’ taxing power does not negate the president’s authority to use tariffs as an instrument of foreign policy — a “plenary and exclusive” power that Curtiss-Wright describes as vested in the president as the nation’s “sole organ” in external affairs.
That distinction drives Thomas’ characteristically insightful dissent. He points, in effect, to a path by which the president may continue using tariffs while negotiating with and responding to foreign nations in his role as the sole organ of American foreign policy. Time will tell whether the court, if the president takes that route, will remain faithful to its landmark Curtiss-Wright precedent. It should.
Editor’s note: A version of this article appeared originally at the American Mind.
One of the most consequential developments of 2025 has received far less scrutiny than it deserves: the steady surrender of executive authority to an unelected judiciary.
President Trump was elected to faithfully execute the laws of the United States, yet his administration increasingly behaves as if federal judges hold final authority over every major policy decision — including those squarely within the president’s constitutional and statutory powers.
Judicial supremacy thrives on abdication. It advances because presidents comply, lawmakers defer, and voters are told this arrangement is normal.
By backing down whenever district courts issue sweeping injunctions, the administration is reinforcing a dangerous precedent: that no executive action is legitimate until the judiciary permits it. That assumption has no basis in the Constitution, but it is rapidly becoming the governing norm.
The problem became unmistakable when federal judges began granting standing to abstract plaintiffs challenging Trump’s deployment of the National Guard to protect ICE agents under attack. Many assumed such cases would collapse on appeal. Instead, the Supreme Court last week declined to lift an injunction blocking the Guard’s deployment in Illinois, signaling that the judiciary now claims authority to second-guess core commander-in-chief decisions.
Over the dissent of Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch, the court allowed the Seventh Circuit’s decision to stand. That ruling held that violent attacks on ICE agents in Chicago did not amount to a “danger of rebellion” sufficient to justify Guard deployment and did not “significantly impede” the execution of federal immigration law.
That conclusion alone should alarm anyone who still believes in separation of powers.
No individual plaintiff alleged personal injury by a Guardsman. No constitutional rights were violated. The plaintiff was the state of Illinois itself, objecting to a political determination made by the president under statutory authority granted by Congress. Courts are not empowered to adjudicate such abstract disputes over executive judgment.
Even if judges disagree with the president’s assessment of the threat environment, their opinion carries no greater constitutional weight than his. The commander in chief is charged with executing the laws and protecting federal personnel. Courts are not.
If judges can decide who has standing, define the scope of their own authority, and then determine the limits of executive power, constitutional separation of powers collapses entirely. What remains is not judicial review but judicial supremacy.
And that is precisely what we are witnessing.
Courts now routinely insert themselves into immigration enforcement, national security decisions, tariff policy, federal grants, personnel disputes, and even the content of government websites. The unelected, life-tenured branch increasingly functions as a super-legislature and shadow executive, vetoing or mandating policy at will.
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What, then, remains for the people acting through elections?
If judges control immigration, spending, enforcement priorities, and foreign policy, why bother holding congressional or presidential elections at all? The Constitution’s framers never intended courts to serve as the ultimate policymakers. They were designed to be the weakest branch, confined to resolving concrete cases involving actual injuries.
Trump’s defenders often argue that patience and compliance will eventually produce favorable rulings. That belief is not only naïve — it is destructive.
For every narrow win Trump secures on appeal, the so-called institutionalist bloc on the court — Chief Justice John Roberts, Brett Kavanaugh, and Amy Coney Barrett — uses it to justify adverse outcomes elsewhere. Worse, because lower courts enjoin nearly every significant action, the administration rarely reaches the Supreme Court on clean constitutional grounds. The damage is done long before review occurs.
Consider the clearest example of all: the power of the purse.
Congress passed a budget reconciliation bill explicitly defunding Planned Parenthood. The bill cleared both chambers and was signed into law. Under the Constitution, appropriations decisions belong exclusively to Congress.
Yet multiple federal judges have enjoined that provision, effectively ordering the executive branch to continue sending taxpayer dollars to abortion providers in defiance of enacted law. Courts have not merely interpreted the statute; they have overridden it.
That raises an unavoidable question: Does the president have a duty to enforce the laws of Congress — or to obey judicial demands that contradict them?
Continuing to fund Planned Parenthood after Congress prohibited it is not neutrality. It is executive acquiescence to judicial nullification of legislative power.
The same pattern appears elsewhere.
Security clearances fall squarely within executive authority, yet the first Muslim federal judge recently attempted to block the president from denying clearance to a politically connected lawyer. Immigration, long recognized as a sovereign prerogative, has been transformed by courts into a maze of invented rights for noncitizens — including a supposed First Amendment right to remain in the country while promoting Hamas.
States fare no better. When West Virginia sought to ban artificial dyes from its food supply, an Obama-appointed federal judge intervened. When states enact laws complementing federal immigration enforcement, courts strike them down. But sanctuary laws that obstruct federal authority often receive judicial protection.
Heads, illegal aliens win. Tails, the people lose.
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What we are witnessing is adverse possession — squatter’s rights — of constitutional power. As Congress passes fewer laws and the executive hesitates to assert its authority, courts eagerly fill the vacuum. In 2025, Congress enacted fewer laws than in any year since at least 1989. Meanwhile, judges effectively “passed” nationwide policies affecting millions of Americans.
This did not happen overnight. Judicial supremacy thrives on abdication. It advances because presidents comply, lawmakers defer, and voters are told this arrangement is normal.
It is not.
Trump cannot comply his way out of this crisis. No president can. A system in which courts claim final authority over every function of government is incompatible with republican self-rule.
The Constitution does not enforce itself. Separation of powers exists only if each branch is willing to defend its role.
Right now, the presidency is failing that test.
'If it's not crossing the physical border, what is the magic thing ... that we're looking for where we say, "Ah, now that person we can say 'arrives in' the United States?"' asked Justice Barrett.
If anyone's evoking 'personal hostility,' it's rogue judges allowing their animus toward Trump to steer the outcome of cases before them.
The judges let Congress off the hook, further incentivizing the legislature’s dereliction while effectively usurping power from the political branches of government.
The judiciary is essential to the republic, and Chief Justice Roberts has taken an excellent step in safeguarding the hallowed deliberative process.
The arguments from Slaughter's attorney didn't appear convincing to the court's conservative justices.
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