How and why the conservative justices differed on tariffs

Courtly Observations is a recurring series by Erwin Chemerinsky that focuses on what the Supreme Court’s decisions will mean for the law, for lawyers and lower courts, and for people’s lives.

The Supreme Court’s decision in the tariffs case reveals fascinating – and significant – differences among the six conservative justices. It is tempting to think of these justices as a bloc, and they do often vote that way. But in the tariffs case, Learning Resources, Inc. v. Trump, decided on Friday, Feb. 20, five of the conservative justices – Chief Justice John Roberts, and Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett – wrote opinions in which they expressed significantly different views, even among those (Roberts, Gorsuch, and Barrett) who sided against the president. This divergence could have great importance in the future.

***

At the outset, it is important to note the agreement among them, and indeed all of the justices. There was unanimity that the president has no inherent constitutional authority to impose tariffs during peacetime. Roberts began his majority opinion by quoting the 1824 case of Gibbons v. Ogden, stressing that Article I of the Constitution gives Congress the power to tax and that the “power to impose tariffs ‘is very clear[ly] a branch of the taxing power.’” 

None of the other opinions disagree with this premise. In fact, the solicitor general conceded this at oral argument. It means for this case and all future ones concerning tariffs, including the new tariffs that President Donald Trump announced in response to this decision, the question is one of statutory interpretation: Does federal law provide the president with the authority to impose taxes?

It is as to this question, and how to approach it, that there was significant disagreement among the conservative justices. First, they disagreed about whether the International Emergency Economic Powers Act, the statute at the center of this case, authorizes the president to impose tariffs. The statute empowers the president to “regulate . . . importation” in order to “deal with any unusual and extraordinary threat.”

Roberts, joined by Justices Sonia Sotomayor, Elena Kagan, Gorsuch, Barrett, and Ketanji Brown Jackson emphatically said that the law does not provide the president the power to impose tariffs. As Roberts wrote: “IEEPA’s grant of authority to ‘regulate . . . importation’ falls short. IEEPA contains no reference to tariffs or duties. The Government points to no statute in which Congress used the word ‘regulate’ to authorize taxation.  And until now no President has read IEEPA to confer such power.”

Kavanaugh, joined by Thomas and Alito, disagreed and found that the language of IEEPA, interpreted in light of history, provided sufficient authority for Trump’s tariffs. In a 63-page dissent, Kavanaugh argued that “[s]tatutory text, history, and precedent demonstrate that the answer is clearly yes:  Like quotas and embargoes, tariffs are a traditional and common tool to regulate importation,” and the majority’s statutory analysis was, in itself, “exceedingly weak.”

***

It is not unusual in statutory interpretation cases to have majority and dissenting opinions disagreeing over what meaning to give to words, and each side in this case presents arguments over the language of IEEPA and historical practices with regard to tariffs. What is surprising is that even though this is primarily what the case is about, a majority of the 170 pages of opinions are focused on other issues, especially the application of what is called the major questions doctrine. This is the principle that the executive branch cannot act on major questions of economic or political significance without clear direction from Congress.

Indeed, there was substantial disagreement among the conservative justices about from where this doctrine derives and its implications. This is especially interesting because, as Kagan, in an opinion joined by Sotomayor and Jackson, pointed out, the major questions doctrine was unnecessary to the court’s holding – which six justices supported – that IEEPA’s statutory authority to “regulate . . . importation” does not include the power to impose tariffs.

Yet, as noted, many pages of the opinions – and some of the sharpest disputes among the conservative justices – were devoted to this doctrine. 

One area of disagreement among the conservative justices is whether the major questions doctrine applies in the area of foreign affairs, where presidential power is considered to be at its most significant. Roberts’ majority opinion rejected the solicitor general’s and the dissent’s argument that the major questions doctrine does not apply as to the president’s actions concerning foreign policy. Kavanaugh sharply disagreed and declared that “the major questions doctrine does not apply in the foreign affairs context.  In the foreign affairs realm, courts recognize that Congress often deliberately grants flexibility and discretion to pursue America’s interests.”

This, of course, will matter when other tariff cases come to the Supreme Court, and, perhaps more importantly, to the president’s power over foreign affairs in general. It appears that to Roberts, Gorsuch, and Barrett, this doctrine provides some limitation on the president in the realm of foreign affairs. Kavanaugh, Alito, and Thomas disagree.

There is another disagreement among the conservative justices about the major questions doctrine: what is its basis? In teaching the major questions doctrine, I ask my students to consider this very question. Is it constitutional? Statutory interpretation? Some form of interpreting statutes to avoid constitutional questions? A form of textual analysis?  

Gorsuch and Barrett, though both in the majority, disagreed over that. In his 46-page concurring opinion focused almost entirely on the major questions doctrine, Gorsuch argued that it is founded on long-standing principles in many areas of law and sees it as derived from the Constitution itself and the separation of powers. While he devoted significant attention to criticizing the liberal justices for not accepting the major questions doctrine and it serving as a basis for invalidating the tariffs, Gorsuch also sharply disagreed with Barrett finding the major questions doctrine to be a “common sense” way to interpret a text. Barrett, unlike Gorsuch, does not see the major questions doctrine as a constitutionally-required doctrine. Rather, as she explained, “the major questions doctrine ‘situates text in context’ and is therefore best understood as an ordinary application of textualism.”

The disagreement among the conservative justices – and the continued unwillingness of the liberal justices to apply it – leaves this question unresolved, although what practical implications this will have on resolving issues before the court remains to be seen. 

Third, Thomas put forth a novel theory of the non-delegation doctrine and presidential power that no other justice joins. The non-delegation doctrine is the principle that Congress cannot delegate, or give away, its legislative power. There are only two cases, both in 1935, in which the Supreme Court has struck down federal laws as unconstitutional, excessive delegations of legislative power. But in dissents in recent years like Gundy v. United States and Federal Communications Commission v. Consumers Research conservative justices have urged the revival of the non-delegation doctrine as a curb on the power of executive agencies. Thomas joined these dissents.

In the tariffs case, Thomas said that the non-delegation doctrine is based on both the Constitution’s allocation of power to Congress and the due process clause. As a result, he concluded that the non-delegation doctrine applies only when there is a deprivation of life, liberty, or property. There is no indication that any of the other conservative justices – including those such as Gorsuch and Alito, who have also argued for the revival of the non-delegation doctrine – share this more robust view of presidential power. At the very least, and with the three liberal justices opposed to using the non-delegation doctrine, this may mean it will be harder to have a majority in the future, in at least some instances, to revive the non-delegation doctrine.

A final area of disagreement among the conservative justices involves concern for the remedy of the illegal tariffs. Kavanaugh, joined by Thomas and Alito, raised this issue and said “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 have paid the IEEPA tariffs, even though some importers may have already passed on costs to consumers or others.” He quoted Barrett’s statement at oral argument that this is likely to be a “mess.”  

Notably, none of the other opinions addressed this, separating the question of whether the tariffs are legal from the issue of the remedy for their illegality. This is certain to be the focus of enormous litigation that well could return to the Supreme Court.

***

The tariffs decision is important in showing that a court that overwhelmingly has sided with Trump over the last year will, at least sometimes, be a check. But the many different opinions, especially among the conservative justices, are also revealing of underlying disagreements that could matter greatly in future cases. Although it always is dangerous to generalize too much from one decision, the tariffs case shows a clear divide among the conservative justices in their willingness to curb presidential power.