Justice Brett Kavanaugh may have provided Donald Trump with a "roadmap" to getting his way, one legal analyst told The Bulwark on Wednesday, sketching out a loophole that could allow him to defy the Supreme Court.
Elliot Williams is a legal analyst for CNN who also previously worked in the Obama administration as a deputy assistant attorney general. On Wednesday, he appeared on the latest episode of The Bulwark's "Illegal News" podcast, where he discussed Trump's various recent legal doings, including the defeat of his sweeping global tariffs by the Supreme Court.
Williams noted during the appearance that Trump retains some other authorities allowing him to issue tariffs, outside of the law he had been using prior to Friday's SCOTUS decision. In fact, he said, Trump-appointee Kavanaugh may have been laying out a "roadmap" for him to do so in his dissent.
"Justice Kavanaugh did sort of lay out a bit of a roadmap for saying that, yes, there are avenues for the president to get some tariffs," William said.
Kavanaugh's dissent was noted by many legal experts as being strongly in favor of the tariff authority Trump had been using, under the International Emergency Economic Powers Act. In the absence of authority from that law, Kavanaugh noted three laws that could still afford Trump the ability to levy tariffs, if not as many as he had been doing, and not anywhere near as quickly: the Trade Expansion Act of 1962, the Trade Act of 1974, and the Tariff Act of 1930.
These laws empower a president to issue tariffs, but they are only temporary, are capped at rates much lower than those Trump had been using and require him to present certain findings in order to justify them. Kavanaugh noted in his dissent that "the president checked the wrong statutory box" when he issued tariffs using IEEPA.
Trump later said in a briefing about the decision that he was "proud" of Kavanaugh's dissent, and has forged ahead with plans to implement new tariffs using Section 122 of the Trade Act. Williams explained, however, that without IEEPA, his ability to levy tariffs as swiftly and as broadly as he had been doing is gone, likening his situation to winning a luxury car, but then being forced to drive a beat-up older model.
"It is impossible for the president to get the kinds of tariffs, one, that he ran on, and two, that he tried to put in place on 'Liberation Day,' whatever it was, in April of [2025]," Williams explained.
