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PaperclipPerfector  5d ago (text post)   18834 thread views

Culture War Roundup for the week of February 16, 2026

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So the US Supreme Court struck down most (all?) of Trump's tariffs in a 6-3 ruling, ruling that its use exceeded the International Emergency Economic Powers Act. This appears to have largely been done under the major questions doctrine, the idea that if Congress wants to delegate the power to make decisions of vast economic or political significance, it must do so clearly. The majority ruling is that Trump's attempt to claim and leverage emergency powers overstepped this, plus doubtless other nuances I'm not noting. The Court also opened an entirely different set of worms, as it did not adjudicate if the tariff revenue that had been collected has to be refunded, or even who a refund would go to. I predict great long !lawyer bills~ debates over how, if tariffs are taxes on Americans, which Americans are owed the tax refunds.

(Do I predict the Trump administration will try to use this as a basis to give money to the electorate in a totally-not-buying-votes-before-mid-terms scheme? No, but I think it would be funny if political bedfellows put Democrats on the side of big business importers who will make claims on the refunds even if they passed on costs to American consumers.)

Trump will reportedly make comments soon. While this will be a major policy loss for the Trump administration, and promises to make the next many months 'interesting,' part of my curiosity is what this ruling might hold (or have held) for other court cases in the dockets, there will also be significant geopolitical reflections on this for months and years to come. This ruling wasn't entirely a surprise, and various countries (and the European trade block) had been hedging in part to let the court case play out. We'll see where things go from here, particularly since not all Trump tariff threats were derived from the IEEPA, and so there will probably be some conflation/confusion/ambiguity over various issues.

While I will defer to others for the legalese analysis, I am also interested in what sorts of quid-pro-quos the internal court politics might have had for Roberts to have led the majority here. There are a host of cases on the docket this term, with politically-relevant issues ranging from mail-in ballots to redistricting. While I think the tariffs case was outside any typical 'we accept this case in exchange for accepting that case' deal over which cases get heard, I will be interested if the administration gets any 'surprise' wins.

For longer commentary from Amy Howe of the SCOTUS Blog-

In a major ruling on presidential power, the Supreme Court on Friday struck down the sweeping tariffs that President Donald Trump imposed in a series of executive orders. By a vote of 6-3, the justices ruled that the tariffs exceed the powers given to the president by Congress under a 1977 law providing him the authority to regulate commerce during national emergencies created by foreign threats.

The court did not weigh in, however, on whether or how the federal government should provide refunds to the importers who have paid the tariffs, estimated in 2025 at more than $200 billion.

The law at the center of the case is the International Emergency Economic Powers Act, known as IEEPA, which authorizes the president to use the law “to deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States, if the president declares a national emergency with respect to such threat.” A separate provision of the law provides that when there is a national emergency, the president may “regulate … importation or exportation” of “property in which any foreign country or a national thereof has any interest.”

The dispute at the center of Friday’s opinion began last year, when Trump issued a series of executive orders imposing the tariffs. Lawsuits filed by small businesses and a group of states, all of which say that they are affected by the increased tariffs, were filed in the lower courts, which agreed with the challengers that IEEPA did not authorize Trump’s tariffs. But those rulings were put on hold, allowing the government to continue to collect the tariffs while the Supreme Court proceedings moved forward.

In a splintered decision on Friday, the Supreme Court agreed with the challengers that IEEPA did not give Trump the power to impose the tariffs. “Based on two words separated by 16 others in … IEEPA—‘regulate’ and ‘importation’—the President asserts the independent power to impose tariffs on imports from any country, of any product, at any rate, for any amount of time,” Chief Justice John Roberts wrote. “Those words,” he continued, “cannot bear such weight.” “IEEPA,” Roberts added, “contains no reference to tariffs or duties.” Moreover, “until now no President has read IEEPA to confer such power.”

In a part of the opinion joined by Justice Neil Gorsuch and Justice Amy Coney Barrett, Roberts said that Trump’s reliance on IEEPA to impose the tariffs violated the “major questions” doctrine – the idea that if Congress wants to delegate the power to make decisions of vast economic or political significance, it must do so clearly. “When Congress has delegated its tariff powers,” Roberts said, “it has done so in explicit terms, and subject to strict limits,” a test that Trump’s tariffs failed here.

The court’s three Democratic appointees – Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson – joined another part of the Roberts opinion, holding that Trump’s tariffs were also not supported by the text of IEEPA. “The U.S. Code,” Roberts noted, “is replete with statutes granting the Executive the authority to ‘regulate’ someone or something. Yet the Government cannot identify any statute in which the power to regulate includes the power to tax.”

Justice Brett Kavanaugh wrote the main dissent, which was joined by Justices Clarence Thomas and Samuel Alito. In his view, Trump had the authority under IEEPA to impose the tariffs because they “are a traditional and common tool to regulate importation.” Moreover, he suggested, although “I firmly disagree with the Court’s holding today, the decision might not substantially constrain a President’s ability to order tariffs going forward … because numerous other federal statutes authorize the President to impose tariffs and might justify most (if not all) of the tariffs at issue in this case.”

Kavanaugh also warned that “[i]n the meantime, however, the interim effects of the Court’s decision could be substantial. The United States may be required to refund billions of dollars to importers who paid the IEEPA tariffs, even though some importers may have already passed on costs to consumers or others.”

(And apologies to @Gillitrut, who posted while I was drafting this.)

Like most Supreme Court rulings, I think this is entirely correct. I don't have anything against the concept of tariffs per se, but this nonsense about using the Executive to go around the Legislative needs to stop. Congress is supposed to govern, not shrug and let the President do whatever he wants (without even specifically authorizing him to do so).

Ubi enim senatus? For where is the Senate? Now empty… America burns.

Rather pointless to complain about what the legislative branch “should” be doing. If’s a dead body. The country is ruled by the President, the Courts, and the Oligarchy. The legislative branch is irrelevant.

This is the fact of how America functions in practice. I don’t really take the text of the ruling seriously at all. The Justices who struck down the tariffs did so because they thought they were a bad policy, and those who dissented thought they were a good policy.

Worse than that - Kavanaugh (definitely) and Alito/Thomas/Sotomayor/Kagan/Jackson (probably) didn't even vote based on their view of the policy merits of the tariffs - they voted based on their partisan attitude to the President who imposed them.

We can't tell whether Roberts/Gorsuch/Barrett votes based on the law or their policy preferences because both their view on the law and their view on the policy are consistent, being downstream of their establishment libertarianish worldview. Their opinion has the advantage of being short and obviously correct - if you think the Major Questions Doctrine exists at all, this is an easy MQD case.

The Kav dissent is right about one thing - given this President and this Congress, the practical consequences of the decision are going to be that the clownshow gets worse.

Gorsuch calling out everyone except himself and Roberts for hypocrisy on the MQD is also obviously correct and great fun to read, but probably bad judicial behaviour. The Barrett (arguing with Gorsuch about whether the MQD comes from the Constitution or is just common sense, with no impact on the case) and Thomas (responding to an argument about nondelegation that the majority didn't make) concurrences are entirely unnecessary bloviations. The Jackson concurrence is making an important point about the legislative history of IIEPA that none of the other justices reach for reasons that are not clear to me.

Since it's the Winter Olympics, here is my skating scores (out of 6.0) for the various opinions:

  • Roberts (+Gorsuch/Barrett) majority: Technical merit - 5.9 Artistic impression - 5.7
  • Gorsuch concurrence: Technical merit - 5.8 Artistic impression - 6.0
  • Barrett concurrence: Technical merit - 5.5 Artistic impression - 5.5
  • Kagan (+2 other libs) concurrence: Technical merit - 5.5 Artistic impression - 5.8
  • Jackson concurrence: Technical merit - 5.9 (if you believe in using legislative history in statutory interpretation, 4.5 if you don't) Artistic impression - 5.6
  • Thomas dissent: Technical merit - 4.0 Artistic impression - 5.5
  • Kav (+ 2 cons) dissent: Technical merit - 5.7 Artistic impression - 5.6. Particularly impressive given that their theory of the case (that the MQD is real and important and somehow doesn't apply to tariffs) is indefensible.

I disagree. Kavanaugh makes a strong argument that given the Nixon tariff, the meaning at the time of the statue would’ve been clearly understood to include tariffs and therefore MQD is not applicable. The fact presidents haven’t used it since is largely irrelevant.

He also points to the historic understanding to again ground the definition to obviously include tariffs. Finally, he makes a compelling point that the majority seems to believe the statue permits a bull elephant in this elephant hole (the ability to prevent any imports from a country) yet the majority believes the statute precludes a baby elephant (ie a tariff). This is of course an inversion of how MQD typically work.

I think the reality is that in the merits of interpreting regulating imports Kavanaugh has the better of it. But I think what really bothers the conservative members of the majority is the statute envisages an emergency. But how could our trade balance—which has existed for decades—be an emergency?

So while that part wasn’t really reviewable I think the majority imprecisely used MQD to say no way even if doctrinally Kavanaugh has the better of it.

Finally, he makes a compelling point that the majority seems to believe the statue permits a bull elephant in this elephant hole (the ability to prevent any imports from a country) yet the majority believes the statute precludes a baby elephant (ie a tariff). This is of course an inversion of how MQD typically work.

I don't think this point is that compelling. A power that can be controlled precisely is greater than a power that can only be used completely or not at all, so a tariff that can go from 0 to a percentage that is indistinguishable than a ban is actually a greater power than to merely ban or not.

But the majority also allows quotas (so not 0-100). Functionally, a quota functions somewhat similar to a tariff in economic impact.

Also the bull elephant isn't in a hole of any kind - it is on the face of the statute. The statute grants a number of powers expressly, including to prohibit trade. The Kavanaugh interpretation is that all of these, plus tariffs, are implicit in "regulate".

We can argue about whether it is rational to delegate a power to ban trade without also delegating the lesser power to tariff it. (In wartime, which was the original context of the legislation, it obviously is.) But if you interpret the text of IIEPA as limited to its express words (under the MQD or any other canon of strict construction) then that is what Congress did.

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