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.
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
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