Friday’s Supreme Court decision rebuffing President Trump’s signature foreign policy initiative—worldwide tariffs imposed pursuant to an asserted national emergency—was extraordinary in multiple respects. In its nearly 250-year history, the Court has rarely ruled against presidential assertions of emergency power. It authorized, for example, the imprisonment of war critics during World War I, and the internment of Japanese Americans and the execution of foreign “saboteurs” without a jury trial during World War II. Yet here the Court directly rejected the president’s claim of emergency authority.

What’s more, a Supreme Court decision has seldom if ever had such severe economic consequences for the federal fisc. The tariffs it declared unlawful have generated more than $100 billion in revenue, much of which may now need to be refunded. (The Court left the details of how and to what extent the tariffs will be refunded to the lower courts, where there is certain to be substantial further litigation.) 

The decision’s political alignment was also unusual. The Court often divides 6-3, as it did Friday—but rarely with the three Democratic appointees in the majority, joined by Chief Justice John Roberts and two Trump appointees, Justices Neil Gorsuch and Amy Coney Barrett. Any decision that divides the conservative justices and unites the liberals with three of their conservative colleagues is not susceptible of a simple political explanation. So what accounts for the result? 

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In one sense the case presented a simple question of statutory interpretation: did Congress authorize the president to impose tariffs when it empowered him to “regulate” imports during a declared emergency? The National Emergencies Act gives the president the power to declare a national emergency, and the International Emergency Economic Powers Act (IEEPA) affords him sweeping authority to use economic sanctions in response to such emergencies.

These statutes were originally designed to rein in emergency powers. But as Chief Justice Roberts wrote in the Court’s majority opinion, quoting Justice Robert Jackson: “‘Emergency powers,’ after all, ‘tend to kindle emergencies.’” The IEEPA is no exception. Originally employed to impose embargoes on trade with disfavored nations, it has been used in ever-expanding ways since its enactment in 1977, covering international terrorist organizations, drug cartels, and foreign corruption. But as with so much else, President Trump has pushed it the furthest, invoking it to sanction even the International Criminal Court.

He is also the first in the statute’s history to argue that it authorizes tariffs. The law never mentions that tool, but Trump contended that tariffs are encompassed within the authority to “regulate” imports. The Court disagreed. The power to impose a tariff, it found, is distinct from the power to regulate and needs to be explicitly delegated. As Roberts noted, “having just fought a revolution motivated in large part by ‘taxation without representation,’ the Framers gave Congress ‘alone. . .access to the pockets of the people.’” Absent an express delegation of tariff authority, that power remains with Congress.

Now that the Court has ruled, some, including my Georgetown colleague Stephen Vladeck, have argued that it was an easy case all along under the Court’s current approach to interpreting statutes. What’s surprising, on this view, is not that six justices ruled against the president but that three—Brett Kavanaugh, Clarence Thomas, and Samuel Alito—dissented. Other Court watchers suggested, before Friday’s decision, that the case for ruling against Trump was clear-cut but that the conservative justices would be tempted to abandon their principles to avoid that result. The day before the oral argument, Linda Greenhouse predicted in an essay for The New York Times that it would be fun to watch “the conservative justices struggle to reconcile their deference to the president—abundantly apparent in recent months from their multiple unsigned and unexplained orders giving him nearly everything he wanted—with the method they embrace in other contexts for interpreting statutes,” since “deference and law in this case are quite clearly pulling in opposite directions.” 

But this was a closer case than it might seem, and the oral argument—along with all the opinions that followed, including the dissents—showed the justices grappling in good faith with how to interpret the statute consistently with their prior opinions and principles. They did not all agree on the bottom line, of course. But their decisions reflect law, not politics.

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The dissenters, rather than merely doing the president’s bidding, offered an alternative reading that is far from frivolous. The IEEPA, as Kavanaugh noted in his dissent, grants the president very expansive powers, on the logic that emergencies require executive flexibility. Indeed, in a challenge to presidential action under the same statute, the Court had previously ruled that the Reagan administration could terminate all pending legal claims in United States courts against Iran and transfer them to an administrative tribunal in connection with resolving the Iran hostage crisis—even though the IEEPA does not explicitly mention such a power.

On the specific subject of tariffs, moreover, a federal court of appeals sustained a worldwide 10 percent tariff imposed in 1971 by President Richard Nixon under the Trading with the Enemy Act, a precursor to the IEEPA that similarly authorized the president to “regulate” imports without expressly mentioning tariffs. Since the IEEPA used the same language, Kavanaugh maintained, it included the same tariff authority. And it does seem peculiar, he added, that under the majority’s reading the president can block all imports from, say, China, but cannot impose even a one-dollar tariff on the same imports. The greater power, he argued, includes the lesser.

But there were also powerful arguments on the other side, although the six justices in the majority were persuaded for somewhat different reasons. The three Republican appointees relied on the “major questions doctrine,” which holds that courts should not interpret vague and ambiguous terms in statutes to give the executive branch powers with substantial economic and political consequences. The conservative justices had previously applied the doctrine to strike down President Joseph Biden’s forgiveness of student loans, his imposition of vaccine requirements on private businesses, and his eviction moratorium. At the time many critics of the doctrine argued, with some justification, that it is overly vague and empowers justices to invalidate executive actions they don’t like, even where Congress has in fact given the executive broad authority to take such action. Many doubted that the conservatives would use the doctrine against conservative administrations. Yet Roberts, Barrett, and Gorsuch invoked it here to invalidate Trump’s most significant executive undertaking. (Kavanaugh argued, in dissent, that the doctrine ought not apply to the arena of foreign affairs, where broad delegations are common.)

The three Democratic justices in the majority reached the same result without relying on the major questions doctrine, which they have consistently rejected in the past. Justice Elena Kagan, writing for the liberals, maintained that the doctrine was unnecessary because under ordinary statutory interpretation the best reading of the law was that Congress did not delegate the power to impose tariffs. She emphasized that the statute authorizes ninety-nine different emergency actions, but makes no reference to tariffs. Every other time Congress has given the president the authority to impose tariffs, she added, it has done so expressly—and with explicit limits.

If the IEEPA were read as broadly as the president argued it should be, Kagan continued, it would render all the other tariff statutes and limitations meaningless, because the president could simply avoid them by declaring an emergency. Meanwhile, in other statutes, Congress routinely authorizes the executive branch to “regulate” certain activities, but in no other instance has that term been construed to include tariffs. And she noted that while every president to serve since the IEEPA’s passage has deployed its powers, Trump was the first to claim it authorized a tariff. 

While the Court did not say so, one cannot help but suspect that the majority’s willingness to rebuff an emergency initiative of this magnitude reflects in part a belief that there is no actual “emergency.” To justify most of the tariffs in question, Trump claimed that the country faced an emergency in the form of its trade deficit—even though we have had a deficit for decades and the American economy is not in any particular crisis. Trump has a habit of declaring fake emergencies to deploy extraordinary powers, and here the Court was willing to push back, much as it did when it barred the administration from deploying the National Guard to Illinois and from using a wartime authority, the Alien Enemies Act, to deport alleged Venezuelan gang members in peacetime. Trump’s proclivity to declare emergencies is a little like the boy who cried wolf, and courts, including the Supreme Court, are right to be skeptical.

The majority also appears to have been unimpressed by the way that Trump has used the power, which has been anything but presidential. In the majority opinion Chief Justice Roberts offered a “just-the-facts” description of just one set of the tariffs Trump has imposed under the act:

Since imposing each set of tariffs, the President has issued several increases, reductions, and other modifications. One month after imposing the 10% drug trafficking tariffs on Chinese goods, he increased the rate to 20%. One month later, he removed a statutory exemption for Chinese goods under $800. Less than a week after imposing the reciprocal tariffs, the President increased the rate on Chinese goods from 34% to 84%. The very next day, he increased the rate further still, to 125%. This brought the total effective tariff rate on most Chinese goods to 145%. 

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In short, the Court in the tariffs case acted like a court should, in response to a president who acted like a president shouldn’t. Trump’s temper tantrum in the aftermath of the decision only sharpened this contrast. Trump is used to getting his way, after all, at least from federal officials. The Court showed its independence, and he wasn’t liking it.

At an impromptu press conference on Friday Trump, ever the sore loser, called the justices “fools and lapdogs for the RINOs and the radical left Democrats,” declared them “unpatriotic and disloyal to our Constitution,” and asserted, needless to say without a shred of evidence, that they were “swayed by foreign interests.” Asked about Gorsuch and Barrett in particular, he suggested that they had personally betrayed him: “I think their decision was terrible. I think it’s an embarrassment to their families.” Evidently he expects from his judicial appointees precisely what he expects from his executive branch appointees (and Republican members of Congress): that they do his personal bidding, no questions asked.

It is fitting that the Court’s decision came the same week that the president hung a huge banner on the Justice Department featuring his face and the slogan “Make America Safe Again.” Trump has transformed a department that is supposed to do justice into a vehicle for pursuing his personal vendettas, running roughshod over its longstanding independence. The Supreme Court, in its first ruling on the merits of a Trump 2.0 policy, showed that it understands the importance of independence—and of law—even if the president does not.