The Supreme Court issued its opinion in the tariff cases yesterday.  The decision was highly splintered.  Although six justices agreed that the President could not impose IEEPA tariffs, the Chief Justice was unable to maintain a majority that clearly relied on any one rationale.  Instead, the justices split as follows:

• 3 justices (Kagan, Sotomayor, Jackson) refused to rely on the major questions doctrine and instead concluded that “ordinary tools of statutory interpretation” indicated that the phrase “regulate … importation” did not include the power to impose tariffs; 
• 3 justices (Roberts, Gorsuch, Barrett) signed on to a full opinion that concluded that the claimed tariff authority did not survive a major questions analysis (although at least two of those justices disagreed as to what the major questions doctrine is, and it was not clear whether the non-major-questions part of the majority opinion offered independent grounds for the decision); 
• 3 dissenting justices (Thomas, Alito, Kavanaugh) concluded that the phrase “regulate … importation” included the power to impose tariffs.

I’ll start with what I found persuasive: Justice Gorsuch offered a scholarly concurrence that effectively critiqued Justice Barrett’s “linguistic” conception of the major questions doctrine.  Justice Gorsuch defended the major questions doctrine as a substantive canon. As I’ve argued myself, if the major questions doctrine is to be defended on textualist grounds, it is best defended as a substantive canon.

I also found the use of the major questions doctrine by the second group of justices (i.e., Roberts, Gorsuch, and Barrett) to be refreshingly forthright.  The history outlined in my past work, and flagged by Justice Kavanaugh, demonstrates that the power to regulate foreign commerce (i.e., the power to regulate importation) has long been understood to include the power to impose tariffs.  Evidence for as much can be found in the days of James Madison as well as those of President Nixon.  But although I’ve contended that the major questions doctrine did not give reason to conclude that the phrase “regulate … importation” did not grant the President tariff power, I recognize that reasonable minds can differ on that narrow point of interpretation.

Finally, and perhaps unsurprisingly given my stated view on the merits, I thought Justice Kavanaugh’s dissent was very well done.  His two alternative and independent reasons for why the major questions doctrine did not control (i.e., that clear authorization was present, and that the doctrine should not apply in the foreign affairs context) was particularly thorough and has not been fully appreciated in the commentary I have seen to date. 

To turn to what I found less than persuasive: The Chief Justice’s refusal to grapple with the history indicating that tariffs can be an exercise of commerce-regulation power was rather startling.  The Chief avoided the history by seeming to focus exclusively on the Taxation Clause (rather than the Taxation Clause and the Commerce Clause), and stating that although “early commentators and this Court’s cases discuss tariffs in the context of the Constitution’s Commerce Clause,” that history “answers the wrong question” because “[t]he question is not … whether tariffs can ever be a means of regulating commerce” but “is instead whether Congress … gave the President the power to impose tariffs at his sole discretion.” (Slip. Op. 16).

There are at least two problems with the Chief’s retort.  First, “early commentators” did much more than “discuss tariffs in the context of the Constitution’s Commerce Clause.”  Those early commenters instead explained that the Commerce Clause was a source of tariff authority.  Madison et al. thus offer historical evidence of the original understanding of Congress’s power to regulate importation (i.e., the very power delegated in IEEPA). And that historical evidence is much more persuasive than, say, the 2025 CRS report relied on by the Chief. 

Second, although the Chief is correct that the relevant question is whether Congress delegated tariff power to the President, the history demonstrates that Congress’s power to regulate importation includes the power to impose tariffs.  By focusing on the taxation power alone, the Chief leaves unaddressed the point that the Commerce Clause offers an independent source of tariff power. Put differently, Congress need not delegate its taxation power to delegate tariff power; Congress can instead delegate its power to regulate foreign commerce (i.e., regulate importation) in order to delegate tariff power.  And, of course, the IEEPA statute does indeed delegate the power to “regulate … importation.”  So asking what that delegated power historically included is far from the “wrong” question; it’s actually the key question at hand.  To ignore that the power to regulate importation has traditionally included the power to impose tariffs, and to instead shift attention to whether the statute delegates a separate taxation power, is to miss the point.

To offer an analogy: Assume a legislative body was vested with the powers to (1) “raise revenue at baseball stadiums” and (2) “regulate how many people enter baseball stadiums.”  Charging money for baseball tickets might be a means of exercising either power.  So to say that a statute explicitly delegating the second power does not delegate the authority to charge money for tickets simply because the statute does not also grant the first power is, again, to miss the point.  

The Chief’s attempt to dismiss United States v. Yoshida Int’l, Inc., 526 F. 2d 560 (CCPA 1975) was also lacking.  The Yoshida opinion, which was issued by the highest court to reach the question at the time, ruled that the statutory phrase “regulate … importation” (i.e., the precise statutory phrase at issue in yesterday’s tariff decision) included the power to impose tariffs.  The Chief dismissed Yoshida as a “single, expressly limited opinion from a specialized intermediate appellate court.”  (Slip. Op. 18). And for that reason, the Chief doubted that Congress codified Yoshida into law.

But the point is not that Yoshida was binding on the Supreme Court or that Congress intentionally codified Yoshida into law.  The point is instead that the Yoshida court simply recognized what had already been recognized in both the Madison and Nixon eras: the power to “regulate … importation” includes the power to impose tariffs.  The burden would seem to be on tariff-challengers to demonstrate that, two years after Yoshida, Congress dramatically (and silently) shifted gears and rejected the traditional understanding of “regulate … importation.”  To again turn to an analogy: If an intermediate court ruled that “baseball” was a “sport,” and Congress then enacted a statute two years later addressing “sports,” it would be a red herring to say that the statutory reference to “sports” did not include “baseball” simply because Congress is unlikely to have codified the intermediate court’s decision.  And one should want to see some good evidence before concluding that Congress secretly abandoned a traditional understanding of “sports” that includes “baseball.”

Also of note were Justice Jackson’s revival of a debate concerning the proper role of legislative history, and Justice Thomas’s view on the nondelegation doctrine.  Those opinions, in addition to the exchange between Justices Gorsuch and Barrett on the major questions doctrine, should be of great interest to readers of this blog for some time.  And I hope to encounter fellow readers engaging in fruitful discussions of those topics in the future.