Last week, a federal appeals court found that President Donald Trump’s imposition of sweeping tariffs on billions of dollars of goods coming into the U.S. exceeded presidential authority.
In doing so, that court merely applied recent rulings of the Supreme Court to the tariffs. In fact, the case against the tariffs is even stronger than the one filed against the Biden administration’s student loan relief plan, in which the justices had no problem halting assistance to millions of Americans.
On Tuesday, Trump said his administration will ask the Supreme Court to expedite the White House’s appeal of the verdict. When the justices ultimately hear the tariff case, will they simply apply their own precedent in a straightforward and even-handed way regardless of who is in the Oval Office? Or can we expect this court to, once again, impose a different set of rules when it is a Trump policy that is being challenged?
The power to impose tariffs is one explicitly provided for in the Constitution — but it is Congress that wields that power.
In 2022, as the nation was still recovering from the Covid-19 pandemic, Miguel Cardona, the secretary of education under President Joe Biden, invoked the Higher Education Relief Opportunities for Students Act (HEROES Act) of 2003 to cancel up to $20,000 in outstanding student debt for millions of American student loan borrowers. The law grants the secretary of education the power in a presidentially declared national emergency to “waive or modify” elements of federal student loans and develop new rules that would operate “in lieu of” existing program regulations — power that Trump’s first-term secretary of education, Betsy DeVos, exercised at the beginning of the pandemic.
The Biden-Cardona plan was challenged by several red state attorneys general. The Supreme Court’s conservative super-majority made quick work of the Biden plan, ruling, in a 6-3 decision, that the loan plan exceeded the congressional grant of authority under the HEROES Act on several grounds, rendering it illegal.
First, despite the explicit language authorizing the administration to “waive or modify” student loan terms, the Court found that this authority did not include the power to simply cancel student debt. The majority would parse the terms “waive or modify” and find that the administration had the power to make “modest” and not wholesale changes to the program.
Second, the majority found that prior administrations had never exercised the relevant authority under the HEROES Act to cancel loans altogether. Since no prior administration had sought such authority, that suggested that no prior administration believed it had such authority.
Finally, the court surveyed the scope of the student loan program and determined that waiving hundreds of billions of dollars of potential revenue represented a significant portion of the federal government’s discretionary spending. Because of that, such a significant policy initiative could only be instituted with express congressional authority.
In doing so, the court turned to a doctrine the conservative justices had invoked several times against the Biden administration, what they have called the Major Questions Doctrine. According to this doctrine, when the executive branch exercises authority it claims Congress has granted to it with respect to a significant policy issue, that grant of authority must be clear and explicit.
Presidents have never exercised this sort of tariff power without congressional approval.
When one looks at the court’s reasons for invalidating Biden’s student loan program and applies them to the Trump tariffs, any fair reading of that prior decision — whether one agrees with it or not — means that the court should affirm the lower court’s decision: The Trump administration exceeded its authority when it issued a range of far-reaching and sweeping tariffs on global trade.
First and foremost, the power to impose tariffs is one explicitly provided for in the Constitution — but it is Congress that wields that power. That branch has granted some economic powers related to international trade to the executive, even emergency powers, but the main statute the Trump administration claims grants the president authority to impose tariffs as he chooses, the International Emergency Economic Powers Act (IEEPA), never even comes close to doing so. In fact, it doesn’t even mention the term “tariff.”
Granted, the authority extended to the executive branch under the statute is fairly broad, lists many things the president can do in a declared emergency and provides procedures by which the president can do them. Nowhere, however, does it grant the president the authority to impose tariffs. So, unlike in the student loan case, the court does not have to interpret specific terms in a grant of authority and decide how far to extend that power given those terms. Rather, the power to impose tariffs is not one of the expressly named powers in the IEEP. And when Congress grants some powers and withholds others, the president can only act in ways that are expressly authorized by statute. Here, there are no terms for the court to interpret; and it cannot read into a statute what is not there. When we look to other grounds upon which the court’s conservative majority struck down the Biden student loan plan, the case is even more persuasive for this court to do the same with the Trump tariffs. Presidents have never exercised this sort of tariff power without congressional approval. Moreover, the tariffs, by the president’s own claims, will bring in trillions of dollars to the U.S. economy, dwarfing even the massive impact the court claimed the student loan program would have. For these reasons, in this case, in the absence of an explicit grant of congressional authority, there is an even stronger argument that can be made for the court to invalidate the tariffs under its prior rulings applying the Major Questions Doctrine. Of course, there’s a good chance the court will side with Trump, which would only provide further evidence of what many Americans fear: that this court has a different set of rules for the Trump administration. Or, as Justice Ketanji Brown Jackson wrote recently in a dissenting opinion involving the administration’s efforts to gut funding programs of the National Institutes of Health, the only rule is that there are no rules save one: that “this Administration always wins.”
Ray Brescia
Ray Brescia is a professor of law at Albany Law School and author of the book “The Private Is Political: Identity and Democracy in the Age of Surveillance Capitalism.” 
