Top Trump official suggests signature policy may be in 'serious legal trouble': analysis

14 August

President Donald Trump holds a Cabinet meeting, Wednesday, April 30, 2025, in the Cabinet Room. (Official White House Photo by Molly Riley)

President Donald Trump administration is beginning to realize that his assertion of nearly boundless, unilateral authority to impose tariffs at any rate of his choosing may not be legally possible, noted writer Jason Willick in an article in the Washington Post published Thursday.

"The president’s claim of virtually unlimited, unilateral power to impose tariffs at whatever rate he chooses is in serious legal trouble," Willick wrote.

He argued that the forceful letter sent by Justice Department officials on Monday to the U.S. Court of Appeals for the Federal Circuit, following last month’s hearings, warned that a rollback of Trump’s tariff powers could precipitate a second Great Depression. It said: “In such a scenario ... millions of jobs would be eliminated, hard‑working Americans would lose their savings, and even Social Security and Medicare could be threatened.” And they concluded: “In short, the economic consequences would be ruinous, instead of unprecedented success.”

Treasury Secretary Scott Bessent said on Fox News Tuesday: “The amount of money that’s coming in here — I think the more deals we’ve done, the more money coming in, it gets harder and harder for [the Supreme Court] to rule against us.”

He added that tariff income is “well in excess” of $300 billion.

Willick wrote: "Think about that for a second. At issue in the tariff case is whether the president is usurping Congress’s power to tax. And the Treasury secretary is pointing out that the tax is so large that the courts can’t possibly find that the president has exceeded his power. That has it backward."

He added that revenue‑raising authority lies with Congress. He cited James Madison, who wrote in the Federalist Papers, “The legislative department alone has access to the pockets of the people.”

Tariffs, Willick noted, are taxes imposed on U.S. importers — both individuals and companies — paid to Customs and Border Protection, which then transfers the proceeds to the U.S. Treasury.

"If Trump is ordering Americans to pay huge sums of money without clear authorization from Congress, that ought to heighten judicial scrutiny of whether the taxes are legal," he wrote.

But Willick added that Bessent's point about the “deals we’ve done” with other countries is constitutionally stronger. "The Supreme Court doesn’t want to intervene in diplomacy, which — unlike taxation — is a core presidential power."

He added: "But the administration might be realizing that its constant invocations of foreign affairs aren’t sufficient to wave off judicial review. It should have worked with Congress and put its trade dealings on a stronger legal foundation. There’s still time to do so."

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