My fellow Americans, this is Liberation Day … April 2, 2025, will forever be remembered as the day American industry was reborn.
— President Donald John Trump
This story originally appeared at TruthDig.
Donald Trump’s “Liberation Day” tariffs offer the Supreme Court a chance to turn the tables on an authoritarian president and claim a liberation day of its own. To strike down the tariffs, however, the court will have to use its favorite analytical tools — the conservative legal doctrines of originalism and textualism — to produce a liberal decision.
Trump announced the tariffs to great fanfare on April 2 in a televised Rose Garden ceremony before the iconic outdoor space was hideously remodeled as a concrete courtyard. On Nov. 5, the Supreme Court heard oral arguments on the legality of the levies by way of a pair of consolidated lawsuits (Learning Resources Inc. v. Trump and Trump v. V.O.S. Selections) initiated by two groups of small businesses that claimed the tariffs placed crippling new taxes on them. In a hearing that lasted 2 hours and 40 minutes, the justices showed little deference to the administration’s defenses, whether originalist or textual, signaling they may finally be ready to regain a small but much-needed measure of judicial independence.
Since the appointment of John Roberts as chief justice in 2005, the court has deployed originalism and textualism to move aggressively rightward. When necessary to shield Trump from legal accountability, the court’s Republican supermajority has been willing to twist the doctrines almost beyond recognition, most notably in its July 2024 decision on presidential immunity, which had no basis in either the text or history of the Constitution. The court has also dramatically expanded its emergency “shadow docket” to greenlight significant parts of Trump’s political and economic agenda, lifting lower-court injunctions that had placed temporary holds on the mass firings of civil servants, the defunding of scientific research and racial profiling in immigration sweeps, to cite just a few examples.
But the Liberation Day tariffs may prove a bridge too far, even for the Roberts court. Styled as “reciprocal” measures designed to redress long-standing international trade imbalances, the tariffs imposed duties on imports from virtually every country in the world, ranging from a baseline of 10% to as high as 50% for Lesotho. Yes, Lesotho. Other nations receiving rates in the upper tiers included China, Vietnam, Taiwan, Thailand and Madagascar.
The Liberation Day tariffs may prove a bridge too far, even for the Roberts court.
In the aggregate, according to many economists, the new tariff rates exceeded those imposed by the disastrous Smoot-Hawley Act of 1930, which helped trigger and prolong the Great Depression. Since April, the rates have fluctuated wildly, depending on Trump’s mood swings and which countries have curried his favor with obsequious flattery and/or outright gifts (here’s looking at you, Switzerland and South Korea).
Trump has long been fixated on tariffs, touting them as magical cures for the nation’s budgetary woes. In his first term, he placed tariffs on steel, aluminum, solar panels and washing machine imports, and a host of other products made in China. Although the tariffs did little good for the economy and precipitated a trade war with China, they were authorized by a series of statutes passed by Congress since 1917 that delegated tariff-setting powers to the president, but which came with strict procedural, substantive and time limits on how those powers could be exercised.
During the 2024 presidential campaign, Trump repeatedly extolled the virtues of Gilded Age President William McKinley for his use of tariffs as a key driver of federal revenue before the ratification of the income tax with the 16th Amendment. If reelected, Trump promised to follow McKinley’s example. On April 2, he made good on the pledge.
In a sharp departure from the first-term levies, the April 2 tariffs were based on a complex and lengthy federal statute enacted in 1977 — the International Emergency Economic Powers Act (IEEPA), which permits the president to regulate international commerce after declaring an emergency under the National Emergencies Act. Trump had threatened to use IEEPA for tariffs in his first term, but wound up using it, as former presidents had, to impose sanctions on foreign countries and dignitaries who had incurred his displeasure, such as the leaders of the International Criminal Court, whose U.S. visas Trump suspended in September 2020.
It’s easy to understand IEEPA’s appeal for Trump and his advisers. Unlike other tariff-related statutes, IEEPA sanctions have no time limits. They can also be unlimited in scope, and require only a presidential emergency proclamation to trigger.
In keeping with IEEPA, Trump in the Rose Garden declared the country’s trade imbalances to be a national emergency and a threat to U.S. economic sovereignty, exclaiming, “For decades, our country has been looted, pillaged, raped and plundered by nations near and far, both friend and foe alike. But it’s not going to happen anymore.”
The new tariffs were off and running, except for two problems: First, Article I, Section 8 of the Constitution vests the power to tax in Congress, not the president. And second, while IEEPA gives the president the power to “investigate, block … regulate … nullify, void, prevent or prohibit” imports or exports concerning designated countries in a declared emergency, the words “tariff” and “tax” nowhere appear in the law.
These problems were front and center in the Nov. 5 oral arguments. From the outset, it was clear that Trump’s motor-mouthed solicitor general, D. John Sauer, was in deep trouble.
Sauer’s first task was to convince the court that the IEEPA tariffs were regulations, not taxes, and that any revenues they raised were incidental to the president’s powers under Article II of the Constitution to direct foreign policy. The contention seemingly convinced no one.
Justice Sonia Sotomayor was quick to point out the obvious. “This [Trump’s tariff regime] is a tax,” she remarked. “I just don’t understand your argument. You want to say tariffs are not taxes, but that’s exactly what they are. They’re generating money from American citizens, revenue.”
“Tariffs are taxes. They take dollars from Americans’ pockets and deposit them in the U.S. Treasury.”
Even the usually cards-to-the-vest chief justice joined in, observing that the tariffs constitute “the imposition of taxes on Americans, and that has always been the core power of Congress,” implying that allowing the administration to use IEEPA would violate the separation of powers, the very essence of the founder’s constitutional design.
Sauer did his best to parry the court’s skepticism, stammering and talking over the justices, “It [the tariff package] is a — it is a — if I may, it’s a foreign-facing regulation of foreign commerce.” He also argued unpersuasively that the tariffs did not run afoul of either the “major questions” or “nondelegation” doctrines that the Roberts court had used to scuttle Biden administration initiatives on student loans, environmental protection and COVID vaccine mandates in the absence of highly specific congressional delegations of authority.
By the time Georgetown University Law Center professor Neil Katyal took his place at the lectern representing one group of plaintiffs, the case was all but over. “Tariffs are taxes,” Katyal told the court. “They take dollars from Americans’ pockets and deposit them in the U.S. Treasury. Our founders gave that taxing power to Congress alone. Yet, here, the president bypassed Congress and imposed one of the largest tax increases in our lifetimes.”
Katyal had originalism, textualism and the facts on his side. Tariffs are, in fact, taxes paid directly by importers or on their behalf by businesses operating as their agents directly to Customs and Border Patrol, which in turn passes the collected funds to the Treasury. Importers can either absorb the tariffs or raise domestic prices, adding to inflation.
In posts on Truth Social, Trump has boasted his tariffs will bring in “trillions of dollars” to the Treasury. He has also claimed the country will face economic disaster if the Supreme Court rules against him.
Despite the direction of the oral arguments on Nov. 5, it is possible that the Roberts court will find a way to rescue the president and uphold the sweeping IEEPA tariffs, or preserve at least some of them under other statutory authorities. This is, after all, a deeply compromised court that has shown in the past it is more committed to sustaining Republican power than it is to its own declared principles. In the meantime, we can hope, at least this one time, for liberation.