Conservative warns Trump's 'bad policy' spells trouble for the Supreme Court

In an article for the Wall Street Journal published Monday, conservative legal commentator Jonathan H. Adler argued that the en banc U.S. Court of Appeals for the Federal Circuit’s rejection of the Trump administration’s sweeping emergency “Liberation Day” tariffs underscores both the legal overreach at play and the constitutional stakes now before the Supreme Court.

On Friday, the U.S. Court of Appeals for the Federal Circuit, sitting en banc, affirmed a lower court’s ruling that President Donald Trump exceeded his authority under the International Emergency Economic Powers Act (IEEPA) when he imposed broad “Liberation Day” and reciprocal tariffs, reversing conventional limits established by Congress.

The court’s 7-4 decision upheld the Court of International Trade’s May ruling that IEEPA does not authorize such sweeping tariffs, and invoked the “major questions doctrine” to underscore that significant economic and political decisions require clear congressional authorization.

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To allow the Trump administration opportunity to seek further review, the appellate court stayed the judgment, maintaining the tariffs in place, until mid‑October.

In his WSJ piece, Adler highlighted that, while at first glance it seems inconceivable that the Constitution and its clear division of power between Congress and the president would permit such tariff manipulation by executive fiat, the case actually presents a thorny, closely divided issue likely to divide the justices.

He noted that, although the tariffs rest on shaky constitutional footing and are “bad policy” to boot, the Court’s precedent and doctrines leave enough ambiguity for serious internal debate.

Adler outlines that Article I vests in Congress the exclusive authority to lay and collect duties, and Article II only allows the president — a treaty-making power that requires Senate consent — to impact trade.

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Though Congress has delegated certain regulatory authorities, any such delegation must include an "intelligible principle." In V.O.S. Selections, he said, the issue turns not on novel constitutional theory but on interpreting whether Congress actually granted the president tariff-setting power under IEEPA — a statute the Federal Circuit has now held does not authorize the sweeping duties imposed.

He further explained how IEEPA's broad language — authorizing the president to "regulate" importation — has never been understood to include tariffs, and that such authority has long required explicit congressional approval.

When courts encounter statutes affecting matters of “vast economic and political significance,” Adler warned, they typically invoke the "major questions doctrine," demanding clear congressional authorization rather than vague grantings. By this logic, IEEPA's omission of explicit tariff authority is telling.

Still, Adler cautioned, the case remains far from clear-cut.

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Declaring national emergencies and invoking broad powers has long been a practice in foreign affairs and national security — areas where courts traditionally defer more to the executive. Citing precedents like Curtiss‑Wright and Justice Kavanaugh’s recent concurring remarks in a separate case, Adler observed that the major questions doctrine has not been consistently applied in the national-security context.

Because Congress has long delegated tariff-related powers to the executive, even if those delegations were clearer and narrower, courts may be reluctant to sharply rein in presidential flexibility in these realms.

Adler characterized the Trump tariffs not only as legally flimsy but as “bad policy icing on that cake,” arguing that if Congress feels the IEEPA is insufficient for modern emergencies, it should enact new, more clearly tailored legislation.

Adler portrayed V.O.S. Selections as a pivotal case that, while seemingly obvious in its constitutional shortcomings, may nonetheless divide the Court.

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"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," Adler wrote.

He added that the political and economic backlash to Trump’s tariffs only reinforces how unwise the policy is, making the case both legally fraught and substantively misadvised.