One week ago, Chief Justice Roberts delivered the news to the American people that, by a 6-3 vote, the United States Supreme Court had found that the tariffs President Trump negotiated and assessed pursuant to the International Emergency Economic Powers Act (“IEEPA”) were outside of the scope of his authority.[1]  Not four days later, President Trump stood before the American people during his State of the Union address and announced that despite, the “very unfortunate” and “very disappointing” ruling, the tariffs “will remain in place under fully approved and tested alternative legal statutes.”[2]  President Trump went on to describe these “alternative legal statutes” as having been “tested for a long time” and “a little more complex, but they’re actually probably better.”[3]  On this point, even the Supreme Court seems to agree that he is correct.

 

It is without question that the power to create tariffs (also referred to as “duties”) is a power that belongs to Congress.[4]  Congress can then delegate that power to the Executive Branch as it deems fit.[5]  Congress enacted IEEPA in 1977 and through it provides the President with the power to, among other things, “regulate…importation” during a declared national emergency.[6]  Pursuant to the National Emergency Act (“NEA”), only the President can declare a national emergency and the national emergency can only be terminated by the President by proclamation or by a joint resolution from Congress (which either must be signed by the President or Congress must override a veto.)[7]  Practically speaking, what this means is the President has complete control over both the declaration of a national emergency and how long it lasts, and he can exercise this power with nothing more than a stroke of his pen.[8]  This is exactly what President Trump did.  Through a series of proclamations and executive orders, President Trump declared national emergencies as to two “threats”: (1) “the influx of illegal drugs from Canada, Mexico, and China; and (2) “‘large and persistent’ trade deficits.”[9] [opinion of the court 2.]  With this pretense, President Trump began assessing and negotiating tariffs at whim, citing his right to “regulate…importation” under the IEEPA as his source of authority. 

 

By a 6-3 majority, the Supreme Court disagreed with President Trump’s assertion of authority under the IEEPA.  In summary, the Supreme Court narrowly held that Congress did not intend to delegate to President Trump tariff powers through the IEEPA.[10]  While there was some disagreement amongst the majority as to the support for this decision (with Justices Roberts, Gorsuch, and Barrett relying upon the “Major Questions Doctrine” and Justices Sotomayor, Kagan, and Jackson relying on fundamentals of statutory interpretation), the 6 Justices were in agreement that the power to “regulate” did not include the power to assess tariffs and that if Congress had intended to delegate tariff powers under the IEEPA, then it would have done so more explicitly.[11]  “That omission is notable in light of the significant but specific powers Congress did go to the trouble of naming.”[12]  While many Americans may have hoped this was the end of the tariffs, the IEEPA is not the end of the road. 

 

What the Opinion of the Court hints at, the dissent lays out in detail – the IEEPA is not the only statute at President Trump’s disposal, while it may have had the fewest hurdles.  In his dissent, Justice Kavanaugh tells President Trump in so many words to look at “Section 338 of the Tariff Act”, “Section 232 of the Trade Expansion Act”, and Sections 201, 301, and 122 of the Trade Act.[13]  Why then, did President Trump choose the IEEPA?  Well, the dissent tells us that too: “The basic answer is that IEEPA is an emergency statute that allows the President to impose tariffs somewhat more quickly.”[14]  The word “quickly” here should be read to mean “without red tape” or, more bluntly, “without needing the approval or involvement of anyone other than the President himself.”  President Trump took a risk, and the Supreme Court called him on it.  Nevertheless, he has already told the American people quite honestly that he aims to try again.

 

So, what does this all mean for American consumers and business owners who have been absorbing the costs of these tariffs?  On this point, the Supreme Court offers no guidance, and the dissent offers only a warning.  There is no direction from the majority to refund the tariffs to those that paid them; Justice Kavanaugh indicates that the process would be a “mess”; and the President himself has already told the nation that some of the money is already being spent: “and every service member recently received a warrior dividend of $1,776…we got the money from tariffs and other things…”[15]  There is further no indication as to whether the President may be able to exercise his tariff powers under other statutes retroactively or to “bless” the agreements that currently exist with foreign nations.  In this lack of clear directive there is at least a clear message to the American people, which is that the tariffs are likely here to stay (even if there is brief reprieve) and we should not be watching the mail for their refund any time soon (if ever.) 

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Sources:

[1] Learning Resources, Inc., et al. v. Trump, 607 U.S. __ (2026).

[2] Read the complete transcript of Trump’s 2026 State of the Union, https://apnews.com/article/donald-trump-transcript-state-of-union-2026-c13e2a07df999b464b733f4a6e84dbd4 (last visited Feb. 27, 2026). 

[3] Id.

[4] U.S. Constitution, Art. I, Sec. 8.

[5] Id., Sec. 1, 8. 

[6] 50 U.S.C. § 1701, et seq.

[7] 50 U.S.C. § 1621-22.

[8] In fact, according to Congress.gov, Congress has only overridden a President’s veto 111 times since 1789.  Congress.gov, https://www.congress.gov/bill/116th-congress/house-joint-resolution/46 (last visited February 27, 2026).  Further, President Trump is not above using his veto power to prolong a national emergency.  In 2019, he vetoed a joint resolution from Congress seeking to end the national emergency he had declared on February 15 2019, relating to the “problem of large-scale unlawful migration through the southern border.” Presidential Proclamation No. 9844. 

[9] Learning Resources, Inc., 607 U.S. __, 2 (Opinion of the Court).

[10] Id. at 20-21 (Opinion of the Court). 

[11] Id. See also, Id. (Kagan, J., concurring).

[12] Id. at 14 (Opinion of the Court). 

[13] Id. at 27 (Kavanaugh, J., dissenting). 

[14] Id.

[15] Id. at 63 (Kavanaugh, J., dissenting); Congress.gov, supra.