Tariff
Decision: Setback or Boon?
This
week, Punch the monkey made some new friends. And oh yeah... the Supreme Court
came out with something about tariffs.
Clarice Feldman
| February 22, 2026 www.americanthinker.com
Will
this week’s Supreme Court decision limit the use of tariffs as a foreign policy
tool of presidents, or did it set up a firewall against future leftist chief
executives while allowing this president to continue to utilize other means to
the same end? Is the decision momentous or of little consequence?
A
lot of attention this week was focused on Alysia Liu’s stunning Olympic
performance and the tale of a
baby monkey in a Japanese zoo (name Anglicized to “Punch”). Punch was
abandoned by his mother, had been raised and bonded to his caretakers, who
needed to integrate him into the monkey troop, which rejected him. Noticing his
distress and the bullying he was receiving, the keepers gifted him a large
orangutan doll, which he hugged and carried everywhere. Finally, he found a
foster mom to hug and playmates, and all is well at the zoo.
In
the meantime, the Supreme Court, after months of consideration, resolved 6-3
against the Administration in one of the two consolidated cases: Learning
Resources, Inc. v. Trump and Trump v. V.O.S. Solutions. In the first
case, the Court denied that the federal district court had jurisdiction, ruling
that the Court of International Trade had exclusive jurisdiction of tariff
disputes.
The
main and dissenting opinions are very lengthy, but the case, at a minimum,
holds that the IEEPA (International Emergency Economic Powers Act), which was
the basis for the challenge in the V.O.S. case, cannot be used to raise
revenue.
Justice
Clarence Thomas strongly objected: “It’s the same basic statutory
construction that Nixon used in his day to levy tariffs. And nobody at the time
questioned the meaning of those words. So again, the Supreme Court is torturing
the plain meaning of the statute. It’s a shameful thing.”
But
except for constitutional scholars, most of us are more curious about the
impact of the ruling, and for many, it is inconsequential and may even
strengthen Trump’s hand.
Plan B
Treasury
Secretary Scott Bessent quickly announced that the administration was prepared
for this eventuality and was acting to continue the tariffs:
“This
administration will invoke alternative legal authorities to replace the IEEPA
tariffs. We will be leveraging Section 232 and Section 301 tariff authorities
that have been validated through thousands of legal challenges. Treasury’s
estimates show that the use of Section 122 authority combined with potentially
enhanced Section 232 and Section 301 tariffs will result in virtually unchanged
tariff revenue in 2026.”
Stephen
Miller confirmed
this:
STEPHEN
MILLER UNLEASHES: "As horrendous as the Supreme Court ruling was, as
poorly as it reflects on John Roberts' court and the continued TORTURING of our
statutes and our constitution, here's the good news!"
"The
court also affirmed the president has the authority under section 301, section
232, section 122, section 338, and many other provisions of federal law, that
the president can levy tariffs on foreign nations."
"So
his program will not only be fully reconstituted, but it will be
EXPANDED."
"The
Supreme Court also affirmed that under IEEPA, the president has authority to
restrict, impede, deny, license, or even fully embargo any foreign trade."
"So
the net result of all this is we're going to keep and grow the tariffs to bring
back American manufacturing, which keeps prices low by incentivizing products
to be made here in America."
"But
it also means that President Trump has even more tools when it comes to dealing
with foreign countries that undermine our security." @StephenM
The
IEEPA was obviously chosen by the Administration as it was a fast way to impose
tariffs. By contrast, Section 232 requires a prior Commerce Department
investigation. It should come as no surprise to those who marvel at the
competence of the Administration that during the long delay between the filing
in the Supreme Court and the decision this week, Commerce did conduct such an
investigation.
Section
232 of the Trade Expansion Act of 1962 empowers the U.S. President to impose
tariffs, quotas, or other trade restrictions on imports deemed to threaten
national security.
Following
a Department of Commerce investigation (maximum 270 days), the President has
broad discretion to determine what constitutes a "national security"
threat and to act, with no legal cap on the tariff rate.
Key
Aspects of Section 232 Powers:
- Broad Scope: The term "national security" is
not strictly defined by the statute, allowing for expansive interpretation
to cover various sectors.
- Trigger Mechanism: Requires an investigation by the
Secretary of Commerce into whether specific imports impair national
security.
- Actions Authorized: The President may impose tariffs
(no upper limit), quotas, or negotiate agreements to limit imports.
- Application: These measures are applied by sector, not
as a universal import tax, and can be used to protect industries like
steel, aluminum, automobiles, and minerals.
Buzz
Patterson
Trump
is brilliant. Anticipating all along that the initial tariffs wouldn’t stand
eventual scrutiny, the Department of Commerce, Howard Lutnick, started the
required review on day one and the 270 day review has been satisfied. It’s a
done deal. Go home, Gavin. And take your ball. @GavinNewsom
The
decision really does
seem inconsequential as it affects trade and revenue:
Given
that the mess of a Supreme Court opinion rejecting Trump’s IEEPA tariffs
nonetheless leaves the door wide open for Trump to immediately re-implement the
tariffs by different means and under different authorities, I think MacBeth has
the best description of the Roberts decision: A walking shadow, a poor player,
that struts and frets his hour upon the stage, and then is heard no more. It is
a tale told by an idiot, full of sound and fury, signifying nothing.
Rebates
Well,
you might ask, will the $200 billion in tariffs paid under a mistaken
interpretation of law be refunded, to whom, and how? I assume this matter will
have to be decided by the Court of International Trade, which, as SCOTUS
just announced, has jurisdiction of the case. The Hill has
some ideas:
Justice Brett
Kavanaugh dealt with the problem directly in his forceful dissent. He
criticized the majority for its silence on whether or how such refunds would be
made. Most pointedly, Kavanaugh noted that the federal government “may be
required to refund billions of dollars to importers who paid the… tariffs, even
though some importers may have already passed on costs to consumers or others.”
In
other words, importers could be double-compensated if they are repaid, since,
in many cases, the public paid for the tariffs in the form of higher prices.
That is precisely what Democrats have been arguing for months, claiming that
prices were raised to cover the added cost of the tariffs.
Trump
could therefore further force the issue by offering to pay the money directly
to taxpayers as a tariff bonus as part of legislation that would ratify the
tariffs. Would Democrats vote against such checks for average citizens?
Even
if Congress does nothing, this will take years to sort out. In the meantime,
the administration has already utilized the other tariff powers recognized by
the court.
But
as it affects future executives, it is very consequential.
Jeff
Childers contends the president’s fury at the decision was a performative
display. In fact, he got everything he could have hoped for:
When
Gorsuch asked him about the peril of future presidents, the DOJ’s lawyer -- Trump’s lawyer-- agreed. If
IEEPA allows Trump tariffing, then a future Democrat president
could also use it, for whatever insane progressive agenda they felt like, just
by declaring a “state of emergency…”
The Firewall. And that, as they say, was that.
The ambiguously worded statute was a disaster waiting to happen [snip] When
they stripped tariffs from IEEPA, Justices Gorsuch, Roberts, and Barrett
weren’t betraying Trump. They were protecting America from
the next Democrat president -- a Warren or Newsom -- declaring a climate
emergency and using IEEPA to impose the Green New Deal by fiat.
So
they built a firewall.
And
so here’s where we are: while the Court slowly considered it, it let President
Trump use IEEPA for almost 8 months to get his Tariff
Dashboard up and humming. [snip] Trump got to do it since he launched
Liberation Day. But now the IEEPA store is closed, and nobody else can ever use
it like Trump did. According to a quick Yale calculation by yesterday’s close
of business, after Trump’s new executive order, the average tariff only dropped
from 16.9% to 15.4%.
In
other words, Trump was ready. The SCOTUS decision barely registered on the
needle. That was just the first disappointment Democrats haven’t yet grappled
with. There were more. [snip]
The Shield for Trump. The three rock-ribbed
conservatives, Thomas, Alito, and Kavanaugh, wrote spirited dissents
pre-empting Democrats from complaining that Trump’s use of IEEPA was ‘totally
illegal’ and unconstitutional. [snip]
Instead
of a weaponized decision rebuking Trump as an out-of-control dictator,
Democrats got a 6-3 split with a 40-page dissent explaining exactly why the
2025-26 tariffs could have -- in good faith -- been considered
legal. Womp womp.
The
dissenters handed Trump an ironclad rhetorical shield to deflect Democratic
criticism over his first eight months of IEEPA tariffs.
[snip]
The Machete. The majority’s legal reason
for chopping out IEEPA’s tariff power was actually another gift
to conservatives -- a sharpened machete. Since 2022 or so, the Court has been
sharpening a legal rule called the “Major Questions Doctrine” (MQD), which
basically says the Executive Branch can’t just ‘read between the lines’ or
‘fill in the gaps’ of statutes, even if they are badly written or ambiguous.
MQD
is widely considered a revolutionary tool that could finally clear the
ungovernable wilderness of the administrative state -- a goal conservatives
have longed for since the FDR days.
Even
sharper after yesterday’s decision, MQD provides that if a statute
doesn’t say something, executive agencies like the EPA or CDC
can’t regulate into existence what are essentially new laws. [snip]
In
short, Major Questions says federal agencies can’t just claim jurisdiction over
the water in your backyard bird feeder and call it law. Revolutionary, I know.
Had
yesterday’s decision swung the other way, had SCOTUS let Trump extrapolate tariffs
from IEEPA, it would have undermined the terrific MQD machete, which is one of
the Roberts Court’s most important restrictions on future Democrat presidents.
After this decision, the MQD is even stronger. Swing away, boys.
All
in all, not a bad week. Alysia Liu won the gold, Punch was adopted by another
monkey and accepted by the troop, Trump gets his tariffs, and future presidents
and their executive agencies can no longer manufacture jurisdiction over
matters Congress never granted them.
Related
Topics:
Supreme Court,
Trump, Tariffs
