Will SCOTUS Save Trump's IEEPA Tariffs?

Yesterday, I pointed to a piece on why the Supreme Court might strike down Trump's IEEPA tariffs, albeit for differing reasons than the Court of Appeals did.

I agree with that reasoning and hope that the authors are right.

But my gut is uneasy about the case, anyway, and not because I am convinced by an editorial to the contrary in which Peter Navarro, Trump's favorite kook economist, argued otherwise.

Law Professor Jonathan Adler (who writes for The Volokh Conspiracy) makes a good case for why the Court might indeed deem the tariffs legal.

The main reason pertains to the tariffs being construed generously as a matter of national security and foreign affairs:

Presidential power is at its zenith in matters of national security and foreign affairs, so it is understandable why Congress may delegate broader authority in such contexts than in domestic affairs. Setting tariffs on goods from other nations implicates different concerns from domestic environmental regulation or the payback of student loans.

When it comes to foreign affairs, Justice George Sutherland wrote in U.S. v. Curtiss-Wright Export Corp. (1936), Congress "must often accord to the President a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved." Echoing this view in concurring with FCC v. Consumers Research (2025), Justice Brett Kavanaugh noted that "the major questions canon has not been applied by this Court in the national security or foreign policy contexts," because it "does not reflect ordinary congressional intent in those areas." Rather, according to Justice Kavanaugh, "the usual understanding is that Congress intends to give the President substantial authority and flexibility to protect America and the American people -- and that Congress specifies limits on the President when it wants to restrict Presidential power in those national security and foreign policy domains."

The article notes that on this basis, the decision is not "a slam-dunk," and I have to concede the point.

I am not a lawyer, and perhaps my gut is wrong -- with my memories of the Roberts Court upholding ObamaCare making me apprehensive -- but this would seem a plausible reason for such an adverse ruling.

-- CAV