The tariffs case just decided by the Supreme Court contained a dilemma for the court’s Democratic-appointed justices. The case concerned whether a broadly worded emergency law passed in 1977 authorizing the president to “regulate” the “importation” of goods allowed Donald Trump to impose tariffs. The court said no, for very good reasons.
But four times during the Biden administration, the Supreme Court confronted similar laws apparently conferring broad fiscal or regulatory powers to the executive. And each time, the court’s Democratic-appointed justices said the Biden administration did have the power it claimed, while the court’s Republican-appointed majority disagreed. The conservative justices reasoned that Congress wouldn’t give away major powers without saying so specifically, a principle known as the major questions doctrine.
Justice Elena Kagan emerged as the leading critic of that doctrine. In one major questions case, she accused the court’s Republican-appointed justices of disregarding the plain text of the law because following it “would frustrate broader goals.” The implication: They were reading laws narrowly because they didn’t like how liberal presidents were using them.
In the tariffs case, of course, Kagan and the two other Democratic-appointed justices came out the other way. They ruled that Trump couldn’t use the International Emergency Economic Powers Act (IEEPA) to impose tariffs.
Justice Neil M. Gorsuch, Trump’s first Supreme Court nominee, agreed with the liberals. But he took them to task for their pivot from the Biden years. “Dissenting in past major questions cases,” Gorsuch wrote, the court’s liberal members “have argued that broad statutory language granting powers to executive officials should be read for all it is worth. Yet, now, when it comes to the IEEPA’s similarly broad language granting powers to the President, they take a more constrained approach.”
Gorsuch took the past major questions cases one by one. In 2021, the Biden administration claimed the power to impose a nationwide eviction moratorium during the coronavirus pandemic. The administration based the claim on a 1944 law allowing the surgeon general to make “such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases.”
The court’s conservative majority blocked the moratorium. But the liberal justices disagreed. As Gorsuch notes, they “highlighted the statute’s ‘broad’ language and suggested that it permitted the agency to impose even ‘greater restrictions’ than the ones at issue in the case.”
In another case, the Biden administration imposed a coronavirus vaccine mandate covering 84 million people. It pointed to a 1970 law directing the Occupational Safety and Health Administration to issue new regulations when workers were “exposed to grave danger from exposure to substances or agents.”
The court’s conservative majority blocked the mandate as overreach based on a vague statute. But the court’s liberals disagreed, arguing that Congress had authorized the sweeping exercise of executive power. “If OSHA’s Standard is far-reaching — applying to many millions of American workers — it no more than reflects the scope of the crisis,” said the dissent.
In 2022, the court’s conservative majority ruled that the Environmental Protection Agency didn’t have the authority to phase out the use of coal power plants based on an ambiguous section of the 1970 Clean Air Act. Such a sweeping reform to the energy grid, the conservatives reasoned, was Congress’s job.
But the liberals once again read the old law broadly. Kagan’s dissent doubted whether there was “any significant limit on Congress’s capacity to delegate policymaking authority to the Executive Branch.”
Then — in the case most similar to the tariff ruling — the Supreme Court ruled in 2023 against President Joe Biden’s unilateral cancellation of $430 billion in federal student loan debt. Biden had pointed to a law allowing the government to “waive or modify” laws and regulations involving student loans in an emergency. The conservative majority interpreted the law as giving the Education Department administrative flexibility — not the discretion to wipe out such a vast quantity of debt wholesale.
Kagan’s dissent implied that the majority reached its decision based on policy rather than law and emphasized the importance of executive discretion. “Times and circumstances change,” she wrote, and the executive is “better able to keep up and respond” than Congress.
Fast forward to Trump’s IEEPA tariffs, which Kagan ruled plainly exceeded Trump’s authority. Gorsuch calls that a “striking turn” from how she interpreted Congress’s delegations of power to the executive in the Biden years. After all, the power to regulate importation could at least plausibly include the power to tariff. But Kagan chose to read the delegation more narrowly.
There might be principled reasons for thinking Trump’s tariffs are different from Biden’s debt cancellation or vaccine mandate. Perhaps the presidentially declared emergency prompting those actions was more authentic than the emergency Trump claimed for tariffs. Or perhaps the tariff power is more constitutionally important than other legislative powers.
But it’s hard to deny that partisanship is also at work. Does anyone believe that if President Kamala Harris used IEEPA to tariff fossil-fuel imports as part of a declared climate emergency, each of the court’s liberal justices would have ruled against her? And does anyone think the court’s two most conservative justices — Clarence Thomas and Samuel A. Alito Jr., who sided with Trump in this case — would both have ruled in Harris’s favor?
No. And that is okay. The Supreme Court, like any government institution, is composed of people, and people are influenced consciously and unconsciously by politics and other sympathies. What matters is that those temptations are not strong enough to take control of the whole multimember institution.
Democratic-appointed justices all ruled for the Democratic administration in past major questions cases. But in the tariffs case involving a Republican president, the GOP-appointed justices split three to three. The court’s political middle is still wide enough for the institution as a whole to act independently of either party.
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