From the Wall Street Journal, September 1:
The president’s powers are at their strongest when it comes to foreign policy and national security.
The full U.S. Court of Appeals for the Federal Circuit on Friday rejected the Trump administration’s use of federal “emergency” powers to impose tariffs on the rest of the world. By a vote of 7-4, the court concluded that Congress never granted the executive branch the nearly unbounded authority the White House claimed.
This is the third court ruling against the Trump tariffs, and it’s tempting to assume the Supreme Court will make it four. Don’t count on it. At first glance, it’s hard to conceive how the Constitution could allow the rewriting of tariff schedules on mere presidential say-so. That President Trump’s tariffs are bad policy is icing on the cake. Yet under current doctrine V.O.S. Selections v. Trump presents a close case that is likely to divide the justices and could go either way.
Article I, section 8 of the Constitution grants Congress the powers to “lay and collect Taxes, Duties, Imposts and Excises” and “regulate commerce with foreign nations.” Article II vests the president with the power to make treaties with other countries, including trade agreements, but requires Senate consent for them to take effect. It seems logical that this allocation of authority precludes unilateral presidential authority to impose or revise tariffs, even as part of a deal between heads of state. But it isn’t so simple.
Since the Constitution was adopted, Congress has enacted laws delegating responsibility for executing these powers to the executive branch. Supreme Court precedent requires that in granting such authority, Congress must articulate an “intelligible principle” to its exercise. But the justices have never interpreted that as much of a limitation—broad statements of purpose will do. Thus while V.O.S. Selections is an immensely important separation-of-powers case, it is unlikely to be resolved on constitutional grounds. Instead, the case will turn—as it did in the lower courts—on whether Congress granted the president the power Mr. Trump claims.
The Trump administration argues that its tariffs are consistent with the International Emergency Economic Powers Act of 1977, or IEEPA, which among other things authorizes the president to “regulate . . . importation . . . of . . . any property” from foreign nations. While IEEPA makes no mention of tariffs, imposing duties is one way to “regulate” imports. Much like other taxes, the imposition of tariffs affects behavior, and they may be imposed for such purposes.
Despite this broad language, the Federal Circuit concluded that “IEEPA’s grant of presidential authority to ‘regulate’ imports does not authorize” tariffs as broad as these. Four judges in the majority argued that IEEPA doesn’t authorize tariffs at all. The law has been on the books for nearly 50 years and had never before been invoked to impose or increase trade duties. As Justice Antonin Scalia wrote in 2014, courts are properly skeptical when the executive branch “claims to discover in a long-extant statute an unheralded power to regulate a significant portion of the American economy.”
V.O.S. Selections would seem a textbook case for applying the “major questions doctrine,” which provides that policies addressing questions of “vast economic and political significance” require clear authorization from Congress. Thus in Biden v. Nebraska (2023), the Supreme Court concluded the power to “waive or modify” regulations governing student debt didn’t encompass the power to forgive such loans altogether. By this logic, the power to “regulate” imports shouldn’t include the power to tax them. While Congress has often delegated authority to set or revise tariffs, it typically does so explicitly.
This argument is strong, but it isn’t a slam dunk. The whole point of enacting statutes like IEEPA is to give the president broad authority to address emergencies when they arise. While IEEPA provides that such actions may “only be exercised” to address such declared emergencies “and may not be exercised for any other purpose,” courts have rarely felt competent to second-guess the executive branch’s national-security determinations.
Presidential power is at its zenith in matters of national security and foreign affairs, so it is understandable why Congress may delegate broader authority in such contexts than in domestic affairs. Setting tariffs on goods from other nations implicates different concerns from domestic environmental regulation or the payback of student loans.
When it comes to foreign affairs, Justice George Sutherland wrote in U.S. v. Curtiss-Wright Export Corp. (1936), Congress “must often accord to the President a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved.” Echoing this view in concurring with FCC v. Consumers Research (2025), Justice Brett Kavanaugh noted that “the major questions canon has not been applied by this Court in the national security or foreign policy contexts,” because it “does not reflect ordinary congressional intent in those areas.” Rather, according to Justice Kavanaugh, “the usual understanding is that Congress intends to give the President substantial authority and flexibility to protect America and the American people—and that Congress specifies limits on the President when it wants to restrict Presidential power in those national security and foreign policy domains.”....
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Paying particular attention to the dissenting opinion authored by Judge Taranto, beginning on page 62 of the Opinion.
