A Supreme Court ruling is more likely to come closer to June . . . but Congress could act right now.
I’d really like to see the Supreme Court issue a ruling in the tariff case this week . . . just like everyone else who believes the Trump tariffs — a huge tax on the American people — are illegal, and who is mortified by the pell-mell imposition of new tariffs on our European allies, in furtherance of the president’s lawless, un-American aggression regarding Greenland (as to which there is no congressional authorization for a purchase, much less for the unthinkable — military action).
But I’m not holding my breath.
The Court issued three decisions today, but not the tariff case. So when is that coming? We have no idea. The Court does not alert even the parties to a lawsuit when a particular decision is coming (as explained by Neal Katyal, who argued the case, for the anti-tariff side, before the justices on November 5).
The speculation that a tariff ruling is imminent (which repeats the speculation last Wednesday, when the Court issued an opinion but not in the tariff case) is driven by current events, in which tariffs are highly consequential. Obviously, a ruling about executive authority to wield this congressional power would be clarifying.
The Court, however, does not work that way, nor should it.
The justices’ obligation is to get the law right. The tariff case is extraordinarily complicated, as anyone who listens to the oral argument can attest. There are many components of it, competing doctrines of constitutional law and challenging questions about the proper construction of statutory text. To get a comprehensive ruling from nine justices, all of whom must have an opportunity to weigh in on what may be multiple sub-rulings, undoubtedly including some dissents (to which majority justices get an opportunity to respond before the formal decision is finally issued), is going to take a lot of time. Maybe the Court can get it done by this week, but I believe it’s more likely that the tariff case will not be decided until late in the term (which will conclude in late June or very early July). Knowing how President Trump is sure to (over)react if the decision does not go his way, if I were a justice, I’d prefer to issue the tariff case on the term’s last day and then get out of Washington for a few months.
Of course, the way our constitutional system is supposed to work (to echo a point Charlie has made), Congress could act right now. It could amend the International Emergency Economic Powers Act to make explicit what is now merely implicit: The IEEPA does not give the president tariff authority.
To repeat what I’ve argued, the IEEPA should be repealed because Congress intended to delegate its powers (which do not include imposing tariffs) only if it could countermand presidential action by a legislative veto; once the Supreme Court invalidated legislative vetoes (in INS v. Chadha (1983), then the IEEPA should have been withdrawn (since it now enables aggressive executive legislating with no practical possibility of congressional nullification).
I would do away with all emergency provisions that delegate legislative authority to the president. If there is a true national security crisis (e.g., a threat of forcible invasion), the president has all the authority he needs to respond forcefully under Article II of the Constitution. With respect to everything else, it’s not the 18th, 19th, or even early 20th century anymore. Congress is now in session far more regularly than it originally was; moreover, modern telecommunications and transportation technology enable Congress to convene within hours if necessary. There is no emergency it cannot vote on rapidly if the need arises — as it did, for example, after Pearl Harbor, 9/11, and the Capitol riot.
And if the president is going to fabricate an emergency to rationalize starting a trade war with our allies as part of a reprehensible exercise in territorial aggression, shouldn’t Congress want to be on record rebuffing him?
The Supreme Court’s task is to resolve concrete legal controversies between litigants involved in a lawsuit. That’s difficult enough. It is not the Court’s job to make tariff policy. That’s for Congress.