Balls and Strikes

Why the tariffs should go down.

Tomorrow, on November 5, 2025, the Supreme Court will hear oral argument on whether the President’s tariffs are authorized by the International Emergency Economic Powers Act.

I was honored to work on an amicus brief in this case on behalf of a group of distinguished economists. While I agree with every word in that amicus brief, this post reflects my own personal views.

During the Biden Administration, the Supreme Court issued four decisions holding that the Executive Branch may not issue rules addressing major questions without clear congressional authorization. Those were difficult cases reflecting deep philosophical disagreements among the Justices. You can reasonably come out either way on the Major Questions Doctrine. But with those decisions on the books, the tariffs have to go down.

Concocting clever justifications

Between 2021 and 2023, the Supreme Court struck down four major Biden Administration actions. All four cases were decided 6-3, with the Republican appointees in the majority and the Democratic appointees in dissent. The four cases addressed different issues, but at heart, they were all the same case.

Round One: Alabama Association of Realtors v. HHS. The statute at issue said this:

The Surgeon General, with the approval of the [Secretary of Health and Human Services], is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession. For purposes of carrying out and enforcing such regulations, the Surgeon General may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.

During COVID, the CDC imposed a moratorium on evictions. The CDC’s theory was that people who were evicted might have COVID, move to new locations, and infect more people.

In the Supreme Court, the government argued that the literal words of the statute authorized this action: the Secretary’s “judgment” was that banning evictions was “necessary to prevent” the spread of COVID. The challengers argued: come on. Banning evictions is completely different from measures that Congress had in mind, like pest extermination. Sure, maybe clever government lawyers could come up with a theory under which existing law justified the moratorium. But for such a momentous policy change, clearer language was needed.

Round Two: NFIB v. OSHA. OSHA has the authority to ensure “safe and healthful working conditions” by enacting standards that are “reasonably necessary or appropriate to provide safe or healthful employment.” During COVID, OSHA imposed a vaccine mandate, on the theory that it would reduce people’s risk of catching COVID from their co-workers.

In the Supreme Court, the government argued that the literal words of the statute authorized this action: what could be more “healthful” than not getting COVID? The challengers argued: come on. Mandating vaccines is completely different from measures that Congress had in mind, like hazmat suits and guards on meat slicers. Sure, maybe clever government lawyers could come up with a theory under which existing law justified the vaccine mandate. But for such a momentous policy change, clearer language was needed.

Round Three: West Virginia v. EPA. EPA has the authority to set standards for power plants reflecting the “best system of emission reduction.” EPA announced a rule requiring coal plants to reduce electricity production by shifting generation towards cleaner sources like wind and solar.

In the Supreme Court, the government argued that the literal words of the statute authorized this action: replacing coal plants with cleaner generation sources was a “system of emission reduction.” The challengers argued: come on. Moving from coal to cleaner energy is completely different from measures that Congress had in mind, like requiring the use of wet scrubbers. Sure, maybe clever government lawyers could come up with a theory under which existing law justified the green-energy push. But for such a momentous policy change, clearer language was needed.

Round Four: Biden v. Nebraska. The Secretary of Education has the authority to “waive or modify any statutory or regulatory provision applicable to” federal student loan programs “as the Secretary deems necessary in connection with a war or other military operation or national emergency.” To alleviate the financial burdens caused by COVID (a “national emergency”), the Secretary decided to cancel $430 billion of student loan debt.

In the Supreme Court, the government argued that the literal words of the statute authorized this action: by forgiving loans, the Secretary was exercising his authority to “waive or modify any statutory or regulatory provision.” The challengers argued: come on. Canceling $430 billion in student loans is completely different from measures that Congress had in mind, like reducing paperwork requirements. Sure, maybe clever government lawyers could come up with a theory under which existing law justified the loan forgiveness. But for such a momentous policy change, clearer language was needed.

As noted above, in all four cases, the Supreme Court agreed with the challengers. Why? To the Justices in the majority, the Biden Administration’s actions were an affront to the separation of powers. True, industrious government lawyers had managed to concoct clever legal justifications based on the literal wording of old, broad laws. But the Congresses that wrote those laws never contemplated anything like what the Administration was doing. It was a farce to suggest that the Executive was somehow “executing” the laws that Congress has written.

The dissenting Justices, of course, saw things differently. From their perspective, the Rule of Law requires that judges follow the law as written rather than speculate as to the motives of legislators. And federal law, read literally, did authorize the government’s actions. So the government wins. It’s the Court’s job to follow the law where it leads, even if the result is that the government gets to do something “major.” And why shouldn’t the government do major things?

Who is right? As I see it, this is just one of those intractable philosophical questions that divide conservatives and progressives. Perhaps when Artificial Superintelligence is finally achieved, a computer will figure out once and for all which is the objectively correct judicial philosophy. However, current trajectories suggest that will not happen until at least 2029. So for a few more years, we will have to continue disagreeing on the Major Questions Doctrine.

Fentanyl and ChatGPT

For such an important case, the tariffs case is unusually easy to explain.

Many laws explicitly authorize the President to impose tariffs, but those laws include conditions and limitations. The President wanted to impose tariffs unencumbered by conditions and limitations, so he turned to IEEPA instead. Under IEEPA, the President has authority to exercise certain powers “to deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States, if the President declares a national emergency with respect to such threat.” Among other things, the President may do the following:

investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest by any person, or with respect to any property, subject to the jurisdiction of the United States.

The President relied on IEEPA to impose two sets of tariffs. First, ostensibly to stop the national emergency of fentanyl trafficking, the President imposed tariffs on Canada, Mexico, and China. Second, ostensibly to stop the national emergency of trade deficits, the President imposed the nearly worldwide “Liberation Day” tariffs that were possibly created using ChatGPT. Both sets of tariffs have confusingly bounced around over the intervening months. E.g., the President imposed 40 percent tariffs on Brazil after the Brazil Supreme Court held that Jair Bolsonaro should stand trial.

The President’s theory went like this: Fentanyl and trade deficits are both “unusual and extraordinary threats” creating a “national emergency.” Ergo, to “deal with” those threats, IEEPA confers him with authority to “regulate” the “importation or exportation” of ‘transactions involving … any property in which any foreign country or a national thereof has any interest.” Imposing worldwide tariffs is a way of “regulating” the “importation” of “transactions,” and therefore, the argument wraps up, the tariffs fall within the President’s authority.

Three lower courts—the D.C. District Court, the Court of International Trade, and the Federal Circuit—found the tariffs to be illegal. Now, the case is in the court that counts.

In the Supreme Court, the government argues that the literal words of the statute authorize the President’s action: the President has the unilateral authority to determine that something is an “emergency,” and tariffs are a way of “regulating” “importation,” so the government wins. The challengers argue: come on. Imposing tariffs worth trillions of dollars against the entire world is completely different from measures that Congress had in mind, like imposing sanctions against particular foreign countries or persons. Sure, maybe clever government lawyers could come up with a theory under which existing law justifies the tariffs. But for such a momentous policy change, clearer language is needed.

It’s the same case. Balls and strikes.

Ne Plus Ultra

The government makes several arguments against application of the Major Questions Doctrine. All of them are weak. These arguments don’t implicate any intractable philosophical differences between the Right and the Left. They’re just unpersuasive, full stop.

1. IEEPA is unambiguous

First, the government argues that the Major Questions Doctrine doesn’t apply because the doctrine applies only to ambiguous laws, and IEEPA is unambiguous in the government’s favor.

No. IEEPA is the quintessence, the pearl beyond price, the blazing summit, the ne plus ultra of laws that aren’t unambiguous in the government’s favor. Consider the cornucopia of arguments that the word “regulate” doesn’t give the President the authority to impose tariffs:

1. In ordinary parlance, “regulating” something means permitting or banning something, not taxing the thing.

2. Many other laws explicitly authorize the President to impose tariffs. Congress knows how to write such laws. This one doesn’t. It says “regulate” and is silent on tariffs.

3. In many contexts, using “regulate” to mean “tariff” or “tax” would make no sense. The SEC has the statutory authority to “regulate … transactions on a national securities exchange.” Do we think the SEC has the unilateral authority to impose a stock trading tax?

4. The statute includes a list of eight things the President can do: (1) investigate; (2) block during the pendency of an investigation, (3) regulate, (4) direct and compel, (5) nullify, (6) void, (7) prevent, (8) prohibit. Everyone agrees that #1, #2, #4, #5, #6, #7, and #8 on the list don’t authorize tariffs. So #3 doesn’t either. To lovers of Latin canons, this is the clearest noscitur a sociis case you are ever going to find.

5. IEEPA refers to regulating “importation or exportation.” But Article I says that tariffing exports is unconstitutional: “No Tax or Duty shall be laid on Articles exported from any State.” This suggests that the authority to regulate “importation or exportation” doesn’t include the power to tariff. Also, IEEPA’s predecessor statute authorized the President to “regulate” only exports—not imports. So it is impossible that “regulate” could have meant “tariff” at the time, and there’s no reason to believe that the meaning of “regulate” morphed later on.

6. In the nearly half-century since IEEPA was enacted, no President has relied on IEEPA to impose tariffs. Instead, prior Presidents have relied on the laws that explicitly authorize tariffs subject to restrictions, and have abided by those restrictions.

7. The Framers didn’t think “regulate” encompassed tariffs. Article I, Section 8 confers Congress with the power to enact tariffs—“Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises[.]”—and separately confers Congress with the power to “regulate Commerce with foreign Nations.” The government’s position would make the Framers weep.

In terms of statutory arguments, there’s just an embarrassment of riches here. Indeed, in my view, the challengers have a good claim that “regulate” unambiguously doesn’t cover tariffs.

Even if you blast through this issue and conclude that “regulate” unambiguously covers tariffs, the government’s position still has many textual problems.

1. As to the fentanyl tariffs: how exactly does imposing across-the-board tariffs on Mexico, Canada, and China “deal with” fentanyl? The government’s theory is that the tariffs will create leverage that will convince those countries to do something about fentanyl. True enough, Canada has responded by appointing a “fentanyl czar” who helpfully notes that “Canada is not a major source of fentanyl entering the U.S.” and the volumes are “far less than the flow of illegal narcotics into Canada from the U.S.” But this theory gives the President a massive amount of power to do anything he wants that he thinks might create “leverage.”

2. As to the trade deficit tariffs: trade deficits are neither new nor bad. AI informs me that classical Athens ran trade deficits because Athens was a “banking hub” and the Athenian drachma was a “widely trusted currency backed by Laurion silver mines.” As our amicus brief elaborates, trade deficits are neither “unusual” nor “extraordinary” nor a “threat,” nor do the tariffs “deal with” this non-emergency.

3. Also, as to the trade deficit tariffs: there’s a specific statute, Section 122, authorizing the President to impose duties on imports “to deal with large and serious United States balance-of-payments deficits,” but the duties cannot exceed 15% and they expire after 150 days. So why should the President be able to seize power that Congress directly denied in Section 122 merely by implausibly declaring that trade deficits are an “emergency”?

The government has various parries to each of these thrusts. It also offers a theory based on a 1975 decision of the Court of Customs and Patent Appeals called Yoshida. This leads to a slugfest in the briefs over the significance of a House Committee Report’s citation of a case issued by a now-defunct court interpreting a now-superseded statute. I am unmoved. The fact that we are having this discussion proves that IEEPA is not unambiguous in the government’s favor. This is exactly the type of situation where the Major Questions Doctrine should kick in.

2. It’s “textually incoherent” to say that IEEPA goes too far

One of the three lower courts that struck down the tariffs, the Federal Circuit, held that even if IEEPA authorizes some tariffs, it doesn’t authorize these tariffs. In the view of the Federal Circuit, even if one might postulate a scenario where IEEPA might permit tariffs in some targeted context, it does not follow that IEEPA confers the unreviewable discretion on the President to personally set tariff rates for every country in the world. The government declares that this sort of reasoning is “textually incoherent” because either IEEPA “includes the authority to impose tariffs or it does not.”

I am somewhat sympathetic to the government’s argument. The other two lower courts that struck down the tariffs didn’t rely on it—the D.C. District Court held that IEEPA never ever authorizes tariffs, while the Court of International Trade held that IEEPA didn’t authorize the fentanyl tariffs because they aren’t targeting fentanyl and that it didn’t authorize the trade-deficit tariffs because Section 122 covered the waterfront. I personally am partial to these crisper holdings.

Nonetheless, with the Major Questions Quartet on the books, the government’s argument can’t be right. The government objects to reasoning of the form “whatever the boundaries of the statute, X goes too far,” but the ship has sailed on that objection. In the eviction moratorium case, the statute at issue said that the CDC “is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases … from one State or possession into any other State or possession.” The Supreme Court said it wasn’t going to decide the outer bounds of this law, but an eviction moratorium went too far. Same thing in the student loan case: the Court didn’t decide the outer bounds of “waive or modify any statutory or regulatory provision” but instead held that the Administration’s program went too far. Now is not the time to adopt a principled stand against “X goes too far.”

3. The case involves “foreign policy emergencies”

The government next argues that the Major Questions Doctrine doesn’t apply because it involves a dispute over foreign policy. It quotes a concurrence by Justice Kavanaugh in which he notes that “the major questions canon has not been applied by this Court in the national security or foreign policy contexts, because the canon does not reflect ordinary congressional intent in those areas.”

I have no quarrel with Justice Kavanaugh’s view that in some, maybe most, foreign policy contexts, Congress intends to give the Executive lots of flexibility. But tariffs? The United States Code is littered with laws explicitly authorizing tariffs subject to specific restrictions. The reason the President is relying on IEEPA is to avoid those laws. It makes no sense to say that “ordinary congressional intent” is for the President to impose tariffs without the restrictions that Congress lovingly imposed.

And what about the separation of powers? True, for most foreign policy matters, the Executive Branch is in the driver’s seat. But the Constitution explicitly says that Congress is in charge of tariffs: “Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises.” It’s such a rare pleasure when the Constitution directly answers a question. And in the early Republic, Congress followed the Constitution. If you want to really nerd out, look at some of the tariff laws from the 19th century. Congress set each individual tariff on each item. It’s like, one and seven-eighths cents per pound of “anvils,” five dollars per ton of “flax straw,” and on and on and on. I understand the Supreme Court may wish to return the Executive Branch to the position it occupied in the 19th century, with the President in complete control. But if we are indeed to RETVRN to the Presidency of the early Republic, it is completely ahistorical to also allow the President to personally set tariffs for every country in the world.

The government also argues that IEEPA involves not only foreign policy, but also foreign policy emergencies. Emergencies are really important, so IEEPA is really important, so Congress must have known that the President would do major things to address those emergencies, so the Major Questions Doctrine doesn’t apply to IEEPA, or so the argument goes. Meanwhile, the government simultaneously claims that the President has unreviewable discretion to decide whether something is an “emergency,” thus putting total control over international trade in the President’s hands with no judicial review.

I don’t buy it. The question is not whether emergencies or IEEPA are major. The question is whether the tariffs are major. Pandemics and worker safety are important, and the CDC and OSHA are important solutions to these important problems. But this did not relieve the CDC and OSHA of the burdens of the Major Questions Doctrine. The fact that IEEPA is an important law does not suggest that one can assume, or even presume, that Congress conferred powers that it didn’t deign to mention.

4. The President, not an agency, set the tariffs

The government’s argument goes like this: In the cases involving the Biden Administration, the decisionmakers were Cabinet members and other high-level officials, not the President himself. Here, the President is the decisionmaker, so the Major Questions Doctrine doesn’t apply.

There is no way to extract this rule from the Major Questions cases. In the vaccine mandate case, the Supreme Court went out of its way to make clear that the mandate originated with the President: “On September 9, 2021, President Biden announced ‘a new plan to require more Americans to be vaccinated.’ … Consistent with President Biden’s announcement, the rule applies to all who work for employers with 100 or more employees.” In the student loans case, the Supreme Court approvingly quotes the following statement from Nancy Pelosi: “People think that the President of the United States has the power for debt forgiveness. He does not. He can postpone. He can delay. But he does not have that power. That has to be an act of Congress.” These cases cannot be retconned as holding that it is perfectly fine for the Executive Branch to decide major questions as long as the decisions come from the President himself.

The argument is also unpersuasive on its own terms. The Major Questions cases hold that separation-of-powers principles require Congress to write the laws. The fact that the President rather than the President’s toady is writing the laws does not resolve the separation-of-powers problem. And even if framed as reflecting an assumption about Congress’s intent, the government’s theory—that Congress would have desired the Major Questions Doctrine when the Secretary does something at the President’s behest but the Inverse Major Questions Doctrine when the President personally does that thing—is not a pre-registered hypothesis. No one has ever held this view until the need arose to invent a new legal theory that would allow the government to distinguish the prior Major Questions cases.

Go Team

I am rooting for the challengers to win the tariffs case because they have good legal arguments, and good legal arguments deserve to win.

I am also rooting for the challengers for deeper reasons. I am not sure I agree with the Major Questions Doctrine, but I am at peace with it. But if the Supreme Court rules for the government, I would not be at peace with whatever refurbished version of the doctrine would replace it. If the government wins this case, then the Supreme Court would retain substantial power to rein in the Executive Branch—when it wants to. It could invoke Loper Bright, which holds that agencies get no deference in interpreting statutes. And it could continue invoking the Major Questions cases when the government wants to do something major and the relevant laws aren’t sufficiently clear. But the Supreme Court would also leave itself the discretion to confer substantial power on the Executive Branch—when it wants to. All it would have to do is find some way to waive or modify the Major Questions Doctrine for purposes of a particular case. All cases are distinguishable from all other cases, so this should not be so hard. Essentially, if the government prevails in the tariffs case, then the Supreme Court gets to decide how powerful the President is. To those who are fond of both limited government and crisp legal rules, the Major Questions Doctrine With Ad Hoc Exceptions is the worst of all possible worlds.

Finally, the tariffs case puts the very concept of neutral principles to the test. The Chief Justice famously said that judges should be like umpires, calling balls and strikes. I agree. But this doesn’t mean I am naive enough to think that all legal questions can be resolved based on objective criteria. Many high-level jurisprudential questions, like whether to adopt the Major Questions Doctrine, are intractable. You can argue all day but ultimately have to pick a side.

Instead, the ball-and-strikes approach is rooted in the view that legal reasoning based on neutral principles can spit out answers to at least some questions. And not just obscure and non-controversial questions, and not just questions where one side of the argument is frivolous. The balls-and-strikes approach supposes that there is some category of cases that are both politically controversial and non-trivial, and yet deductive legal reasoning will get you to the answer.

That’s this case. Maybe before the Major Questions cases, there would have been some room to interpret IEEPA expansively and hold that they authorize the tariffs. After the Major Questions cases, that is no longer true. You cannot wring the ability to impose worldwide tariffs out of the phrase “investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit.” The levees of neutrality must hold.