Three conservative justices of the US Supreme Court — Brett Kavanaugh, Clarence Thomas, and Samuel Alito — broke with the majority Friday, arguing that President Donald Trump had clear authority to impose his sweeping tariff policy.
The three dissenting justices said the president’s tariffs were perfectly legal under the 1970-era law Trump used that says presidents can “regulate” importation in the case of emergencies.
“The tariffs at issue here may or may not be wise policy,” Kavanaugh wrote. “But as a matter of text, history, and precedent, they are clearly lawful.”
The three justices also noted that the majority 6-3 decision is silent on how to return billions of dollars in tariffs that have already been collected.
That process “is likely to be a ‘mess,'” as was acknowledged at oral arguments, Kavanaugh wrote in a lengthy dissent that Thomas and Alito joined.
The two dissents differed with the majority on two fronts: Trump’s bypassing of Congress in imposing tariffs, and the legality of the president’s invocation of the International Emergency Economic Powers Act, or IEEPA.
In the dissent written by Kavanaugh, the justices argued that presidents have “commonly” imposed tariffs to regulate imports throughout American history.
Interpreting IEEPA to exclude tariffs “creates nonsensical textual and practical anomalies,” Kavanaugh wrote. As with quotas and embargoes, tariffs are a “traditional and common tool to regulate importation,” he said.
“It does not make much sense to think that IEEPA allows the President in a declared national emergency to, for example, shut off all or most imports from China, but not to impose even a $1 tariff on imports from China,” Kavanaugh wrote.
Reversing the tariffs may be an exercise in futility, Kavanaugh added. Even without IEPPA, “numerous other federal statutes authorize the president to impose tariffs and might justify most (if not all) of the tariffs at issue in this case,” Kavanaugh wrote.
In a separate dissent, Thomas wrote that “neither the statutory text” of IEEPA “nor the Constitution provide a basis for ruling against the President.”
“This Court has consistently upheld Congress’s delegation of power over foreign commerce, including the power to impose duties on imports,” Thomas wrote. “The Court has long conveyed to Congress that it may ‘invest the President with large discretion in matters arising out of the execution of statutes relating to trade and commerce with other nations.'”
In remarks at the White House following the Supreme Court’s decision, Trump praised the three dissenting justices while bashing the others.
“I’d like to thank and congratulate Justices Thomas, Alito, and Kavanaugh for their strength and wisdom and love of our country, which is right now, very proud of those justices,” Trump told reporters. “When you read the dissenting opinions, there is no way that anyone can argue against them — there is no way.”
Trump called the Supreme Court ruling “deeply disappointing” and said he was “ashamed of certain members of the court.”
