Bloomberg Law SCOTUS Dubious About Trump Tariffs
Nov 6, 2025
Michael Dorf, a constitutional law professor at Cornell, and Timothy Brightbill, a partner at Wiley Rein specializing in international trade, dive into the Supreme Court's oral arguments regarding Trump's tariffs. They discuss the potential overreach of executive power and the implications of the International Emergency Economic Powers Act. Key concerns include whether tariffs fall within the statute's language and how rulings on this case might affect trade policy and constitutional authority. The uncertainty of justices' votes adds to the tension regarding future tariff practices.
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Textual Gap Undercuts Tariff Power
- Justices questioned whether IEPA's phrase "regulate imports" plainly includes tariff authority given Congress often names tariffs explicitly.
- Michael Dorf and others view Congress's omission as a strong textual argument against presidential tariff power.
One-Way Ratchet Concern
- Justice Gorsuch pressed that broad delegations risk a "one-way ratchet" of executive power that Congress can't easily reclaim.
- Michael Dorf noted non-delegation concerns could limit reading of IEPA to avoid giving limitless emergency authority.
Major Questions Raise Clear-Statement Bar
- The major questions doctrine demands clear congressional authorization before permitting enormous regulatory power.
- Dorf says textualist analysis of how Congress used tariff-related language elsewhere can win without invoking that doctrine.