Tariff King Meets the Constitution: Trump’s Trade War Collides with 1776

 

The Supreme Court said no. Trump said watch me. If one man can impose sweeping tariffs without Congress, 1776 means nothing—and America drifts from republic to rule-by-decree.

I watched the Supreme Court drop the hammer, and it was not subtle. In Learning Resources v Trump, decided on February 20, the justices did not nibble around the edges. They took a battering ram to the president’s tariff wall. Six of nine justices, including Chief Justice John Roberts, ruled that the bulk of President Trump’s tariffs were illegal under the International Emergency Economic Powers Act, or IEEPA. That is not a polite disagreement. That is a constitutional smack.

President Trump called the ruling “deeply disappointing.” He said he was “ashamed of certain members of the court.” Then he did what he always does when boxed in. He doubled down. He pledged new trade barriers, new methods, new statutes, stronger authorities. The message was clear: if one door closes, I will kick open another.

But here is the problem. Tariffs are taxes. And taxes, in America, are not a royal hobby.

The Constitution does not stutter on this point. Article I, Section 8 gives Congress the power to “lay and collect Taxes, Duties, Imposts and Excises.” Roberts wrote that the framers “gave ‘Congress alone’ the power to impose tariffs during peacetime” and did not vest any part of the taxing power in the executive branch. That is not academic trivia. That is the skeleton of the Republic.

America did not fight the Revolutionary War because tea was expensive. It fought because of who imposed the tea tax. The Stamp Act of 1765 and the Townshend Acts of 1767 were not just revenue measures. They were power plays. Colonists cried “no taxation without representation” because they believed only their elected representatives could tax them. Not King George III. Not even Parliament, where they had no vote. The Boston Tea Party in 1773 was not a caffeine tantrum. It was a constitutional protest.

Now fast forward to 2026. A president asserts that a 1970s emergency statute allows him to bypass Congress and slap tariffs on imports at his discretion. He cites a “public-health crisis” from illegal drugs and “large and persistent” trade deficits as emergencies. That is the hook. IEEPA allows the president to regulate certain economic transactions during a national emergency. But as Roberts wrote, the words “regulate” and “importation” do not magically create an independent power to impose tariffs “on imports from any country, of any product, at any rate, for any amount of time.”

Congress did not hide a delegation of its birthright taxing power inside routine language about regulation. That would be legislative sleight of hand. And the Supreme Court was not buying it.

The economic stakes are not pocket change. According to Yale University’s Budget Lab, striking down the IEEPA levies could cut America’s effective tariff rate by about half. Importers have already paid well over $100bn in these levies, about 0.3% of GDP. That money helped nudge down the federal deficit. If refunds are ordered, as many expect, the government could be writing checks for billions. Justice Brett Kavanaugh warned that figuring out how to return the money would likely be a “mess.” That is the polite version.

Markets reacted with a shrug and a raised eyebrow. Bond yields rose by a few hundredths of a percentage point. The dollar slipped, but not dramatically. The immediate impact is not a crash. It is something worse for business: uncertainty. For the past year, companies have complained that constantly shifting trade policy has made hiring and investment a nightmare. One week it is 10%, the next it is 15%, then a court ruling blows a hole in the plan. You cannot build a factory on vibes.

Trump’s answer to the Court was not retreat. On February 20 he invoked Section 122 of the Trade Act of 1974 to impose a global 10% tariff on top of existing levies. A day later he raised it to 15%, the maximum that Section 122 permits. That authority lasts up to 150 days. It has never been used before. It requires pointing to “large and serious” balance-of-payments deficits. Translation: more legal wrangling ahead.

If that path falters, there is Section 338 of the Smoot-Hawley Tariff Act of 1930, another dusty provision that has never been invoked. Smoot-Hawley itself is a cautionary tale. Signed by President Herbert Hoover in 1930, it raised tariffs on thousands of goods. Global trade collapsed. Between 1929 and 1934, U.S. exports fell by about 66%. Many economists, including Milton Friedman, later argued that the tariff deepened the Great Depression. When you play with fire, do not act surprised when the house burns.

Trump’s more reliable tools are Section 232 and Section 301. Section 232 allows tariffs on national security grounds. Section 301 targets unfair trade practices. These are already in use and have firmer legal grounding. But they require formal investigations. They move slower. They are not the president’s preferred style of rapid-fire threats and last-minute deals. Brick by brick, he can try to rebuild the tariff wall. But it will not be the same freewheeling construction project.

I have to say it plainly. When a president claims the power to impose broad tariffs without Congress, he is stepping onto the same constitutional fault line that cracked open in 1776. Back then, colonists rejected the idea that a distant authority could tax them without direct representation. Today, the distance is not across an ocean. It is across Pennsylvania Avenue. But the principle is the same.

Some will argue that Congress has delegated broad trade authority over decades. That is true in part. Statutes like Section 232 and Section 301 reflect that delegation. But delegation is not abdication. The Court’s message in Learning Resources v Trump was that IEEPA is not a blank check for peacetime tariffs. Emergencies cannot become a magic word that erases Article I.

There is irony here. Over the first year of Trump’s second term, the Supreme Court often avoided direct confrontation with him. On the so-called shadow docket, he scored wins on issues from presidential hiring and firing to immigration and a ban on transgender soldiers. But when the justices heard this case on their regular docket, with full briefing and oral argument, the gloves came off.

Another case looms involving Lisa Cook, a governor at the Federal Reserve. Trump has tried to remove her, raising concerns about the independence of the central bank. If a president can stack the Fed at will, monetary policy becomes political currency. Now add unilateral tariff power to that mix. That is not strong leadership. That is concentrated power.

I am not naïve. Trade deficits are real. Illegal drugs are real. China’s trade practices are real. The frustration is real. But frustration does not rewrite the Constitution. The framers did not design a system based on vibes or urgency. They designed it to slow things down, to force debate, to require Congress to own the taxes it imposes.

If Trump wants the highest tariff rates in more than half a century, he can go to Congress and make the case. Tariffs are taxes after all. Let elected representatives vote. Let them explain to voters why prices might rise. Let them defend the numbers.

Because that is what 1776 was about. It was not about cheaper tea. It was about who gets to tax free people.

Right now, the immediate economic impact is more uncertainty. The long-term impact depends on how far the president pushes, and how firmly the Court pushes back. But one lesson is already clear. In America, no matter how loud the press conference, no matter how urgent the emergency, the power to tax does not belong to a king.

And if we forget that, then all the fireworks of July are just noise.

 

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