Federal laws, including the International Emergency Economic Powers Act and the Trade Act of 1974, grant the president considerable authority over tariffs. While some procedural constraints exist, substantive limits on tariff scope and size are minimal. The US Trade Representative must make specific findings before imposing tariffs, but executive power to tax imports remains broad.
The Supreme Court's 'major questions' doctrine, a relatively recent and undefined legal principle, allows the court to scrutinize executive actions deemed of significant economic and political impact. This doctrine, not found in the Constitution or federal statutes, has been applied to overturn Biden administration actions. The application to Trump's tariffs is uncertain.
The article argues that the case for applying the major questions doctrine to Trump's tariffs is as strong as its application to Biden's student loan forgiveness. Despite past Supreme Court leniency toward Trump, the potential economic fallout from the tariffs might incentivize a ruling against them. The Supreme Court's ideological commitments and desire to centralize power in the judiciary could override partisan loyalty.
Analyses predict significant negative economic consequences from Trump's tariffs, with estimates of thousands of dollars in annual income loss for average US households. The sheer scale of potential economic damage strengthens the argument for applying the major questions doctrine.
The 1971 Nixon tariffs offer a possible precedent. However, subsequent changes to relevant laws and uncertainties regarding the doctrine's application to executive actions, rather than actions by cabinet-level officials, remain. The unpredictable nature of the major questions doctrine, its lack of firm legal basis, and the Court's past behavior make a definitive prediction impossible.