Trump's tariffs are unconstitutional and will be struck down by the Supreme Court

On April 2, 2025, President Trump signed an executive order imposing a minimum 10% tariff on all US imports, and increased tariffs on 57 nations.

I posit that this executive order violates U.S. law, and would likely be overturned when heard by the Supreme Court. Broad tariffs and raising government revenue in general is explicitly and unambigiously reserved for the legislative branch in the Constitution.

The Constitution

The U.S. Constitution clearly and unequivocally assigns the authority to raise tariffs to Congress.

We can see this in Article 1, Section 7:

All Bills for raising Revenue shall originate in the House of Representatives

And in Article 1, Section 8:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises

and

To regulate Commerce with foreign Nations

Therefore, any attempt to assign tariff authority to the President would need a compelling legal argument to justify overriding the Constitution.

Alleged Established Precedent

One argument that is often presented is that there is an established precedent, and that many other Presidents (as well as Trump in his previous term) have increased tariffs.

However, the previous examples are radically and qualitatively different.

Here are two representative examples:

• In 2001, Clinton / Bush transition imposed a tariff on steel wire rod imports, invoking section 203 of the Trade Act.

• In 2018, the Trump administration imposed a 30% tariff on imported solar cells using Section 201 of the Trade Act.

These previous examples are usually limited to a single good, and have a specific argument, based on the specific law, which has clear limitations in its scope.

This is how these trade laws were designed. They are seen as a delegation of power from congress to the executive, which is allowed when there are "clear preconditions to Presidential action". They also "require a specific federal agency to conduct an investigation and make certain findings before tariffs may be imposed."

The Trump 2025 tariffs were not based on any of the Acts previously used to impose tariffs. Instead they were based on the International Emergency Economic Powers Act of 1977 (IEEPA). (See the Executive Order.)

Therefore we have two fundamental flaws with the claim that these establish a precedent for the Trump 2025 tariffs:

• The authority invoked by Trump 2025 is different from those invoked in previous cases, and has never before been used to increase tariffs.

• The authorities invoked in previous cases have explicit limitations, and could not be used to apply broad-based tariffs. (The Trump team is aware of this, which is why they did not attempt to base the Trump 2025 tariffs on these authorities.)

The major questions doctrine

The major questions doctrine is a principle that Congress does not delegate to executive agencies issues of major political or economic significance.

This doctrine was formally established in West Virginia v. EPA (2022), where the Supreme Court struck down the EPA's Clean Power Plan, ruling that such sweeping regulatory authority required explicit congressional approval. The doctrine was further reinforced in Biden v. Nebraska (2023), when the Court invalidated the administration's student loan forgiveness program on similar grounds.

While limited tariffs on specific products such as on solar panels could be argued not to be of major political or economic significance, this is absolutely not the case with the 2025 Trump tariffs, which have enormous implications for the entire global economy. The implementation of these far-reaching tariffs through executive action, therefore, are a clear breach of the major questions doctrine.

The International Emergency Economic Powers Act of 1977

The International Emergency Economic Powers Act (IEEPA) of 1977 is a U.S. federal law that grants the President authority to regulate various economic transactions in response to an unusual or extraordinary threat to the United States that originates substantially outside the country.

This is the authority that Trump is invoking for the 2025 tariffs.

It has never been invoked before in order to raise tariffs in its 48 year history.

The main problem is that the reasoning for declaring an emergency must be exceedingly strong, but it clearly is not. The reason that it must be very strong is that it intends to overrule the clear word of the Constitution. We cannot legally have a situation where the President has the ability to call any problematic issue an "emergency", and then take over powers explicitly reserved for congress. It is reasonable to argue that the trade and debt situation is a very serious and even crucial issue for the U.S. But the founders and the Constitution did not say that the President can overrule the Constitution with emergency powers any time there is a serious issue. In fact, it explicitly says the opposite.

As Rand Paul says:

"One person is not allowed to raise taxes. The Constitution forbids it." "It has to come to Congress. It has to originate in the House. This has gone on for 200-odd years. You can’t simply declare an emergency and say: 'Well, the Constitution of the Republic was great; but gosh, we’ve got an emergency or times are dire.' "

From a broader perspective: if the president is free to call issues emergencies and overrule the Constitution on that basis, then there is essentially no limit to the power they can accrue. It would then not be unthinkable, for example, that an application of emergency powers could be used to abandon term limits.

The language also specifically states that the situation must be an "unusual and extraordinary threat". It is hard to argue that a situation that has been ongoing for many decades is highly unusual and extraordinary. The report accompanying the law explicitly states that “emergencies are by their nature rare and brief, and are not to be equated with normal, ongoing problems.” A decades long trade deficit is clearly not "rare and brief".

A further issue with invoking the IEEPA in order to increase tariffs is that it does not even mention tariffs, and neither does the House report on the legislation, even though they contain a long list of things the president can do.

John Vecchione from the NCLA claims that this is decisive:

“If this was ‘Red Dawn’ and the enemy was coming across the border and the president invoked IEEPA, he still can’t put in tariffs. It’s not what it’s for. He can embargo our enemies. He can cut off their banking. He can do a lot under IEEPA, but tariffs are not in it.”

Vecchione may be correct about this. But I see the center of the issue as being that imposing broad tariffs is an authority reserved for Congress in the Constitution. Regardless of where exactly the fault lies, whether with the IEEPA, its application, or something else, the Constitution is crystal clear about this.

The current Supreme Court

There are three broad ideological groupings on the current Supreme Court:

• The textualist group: Alito, Thomas, Gorsuch

• The more moderate group: Barrett, Kavanaugh, Roberts.

• The progressive, non-textualist group: Jackson, Kagan, Sotomayor

The textualist group is unlikely to permit what could be seen as a clear disregard for the Constitution and will likely view the 2025 tariffs as unconstitutional.

The more moderate justices place greater emphasis on precedent, but will nevertheless likely share this opinion. Notably, Chief Justice Roberts authored the majority opinion in West Virginia v. EPA (2022), which invoked the major questions doctrine. The 2025 tariffs is even more of a major question than the one addressed there.

The progressive group is less constrained by strict textual interpretation. However, they tend not to favor Trump, Trump policies, or expansions of executive power under Trump.

Given these dynamics, it is likely that the Supreme Court would strike down the 2025 tariffs, potentially with a broad majority.

Legal experts agree

Some examples:

Ilya Somin: Why Trump's "Liberation Day" Tariffs are Illegal

Wall Street Journal Editorial Board: The President invokes a law that doesn’t give him power to impose sweeping tariffs. Someone should sue.

Gary Clyde Hufbauer: The time has come for the Supreme Court to take a fresh look at this constitutional travesty.

Jennifer Hillman: Trump’s Use of Emergency Powers to Impose Tariffs is an Abuse of Power

Peter E. Harrell: The Case Against IEEPA Tariffs

National Review Editors: We are of the view that many of the delegations of authority that Congress has granted to the executive are unconstitutional, and that they should be struck down as such by the Supreme Court.

Andrew McCarthy: Trump is wielding legislate authority. he has no business imposing tariffs.

Sorites paradox and the Trump tariffs.

The U.S. Constitution establishes clear boundaries on executive power. When these boundaries are violated, it does not matter if the violation occurs directly or through incremental actions.

Consider a hypothetical scenario regarding the 22nd Amendment, which expressly prohibits a president from serving more than two terms. This constitutional limit could be breached in two distinct ways:

• Direct Violation: A two-term president openly runs for a third term, directly defying the Constitution.

• Indirect Violation: The same result is achieved incrementally:

- Congress passes a law granting emergency powers to the president under certain conditions.

- The president declares emergency conditions exist.

- The president claims these powers override the 22nd Amendment, thereby serving a third term.

Both scenarios ultimately lead to identical constitutional breaches.

This phenomenon resembles the ancient Sorites paradox: If a heap is reduced by a single grain at a time, at what exact point does it cease to be considered a heap?

The 2025 Trump tariffs illustrate a similar constitutional dilemma. Article I explicitly grants Congress — not the president — the power to impose tariffs. Presidential imposition of sweeping tariffs without congressional approval violates this constitutional principle, regardless of whether it occurs:

• In a single sweeping executive order, or

• Through incremental steps justified by emergency powers, historical precedent, or other seemingly defensible rationales.

When constitutional boundaries erode gradually, pinpointing the exact moment of violation becomes difficult. However, if the Constitution is worth defending at all, it is worth defending whether the heap is removed all at once, or one grain at a time.