On That Tariff Ruling

The Supreme Court got it right, but it may not matter that much.

Look for longer pieces in the New York Post and City Journal tomorrow, but here was my initial reaction that got blasted to the media:

The tariff ruling was about what conventional wisdom would’ve predicted: (1) a majority saying that the statute on which the administration hung its tariffs (the International Emergency Economic Powers Act) doesn’t give the president the authority he claims: “None of IEEPA’s authorities includes the distinct and extraordinary power to raise revenue.”; (2) several justices adding that if Congress wants to grant that kind of power, it has to speak clearly: “There is no exception to the major questions doctrine for emergency statutes.”; and (3) several justices dissenting, for varying reasons. Although the breakdown of justices is somewhat convoluted, the bottom-line is straightforward and a clear majority would agree with Justice Kavanaugh’s dissent that “numerous other federal statutes authorize the President to impose tariffs and might justify most (if not all) of the tariffs at issue in this case—albeit perhaps with a few additional procedural steps that IEEPA, as an emergency statute, does not require.” Indeed, Treasury Secretary Scott Bessent has been publicly discussing these alternatives for months, preparing for just this eventuality. Although the decision has significant practical consequences—and the Court was silent about how exactly companies can get refunded the tariffs they’ve paid—it’s also a narrow legal ruling in that it says that this statute doesn’t justify these tariffs. It effectively calls the administration out on a process foul, telling it not to steal bases in pursuit of what may (or may not) be worthy goals.