Trump’s Tariff Losses Are a Moment of Reckoning for the Supreme Court

The court even included a reference to Chief Justice John Roberts’s landmark ruling in 2012 that upheld the Affordable Care Act. Tariffs, in practical terms, are a tax paid by individuals and companies on foreign-made goods at the time of import. “Contrary to the government’s assertion, the mere authorization to ‘regulate’ does not in and of itself imply the authority to impose tariffs,” the majority noted, observing that the Constitution grants these powers to Congress in separate clauses. It cited Roberts’s Obamacare ruling, which upheld the individual mandate to buy health insurance under Congress’s taxation powers, as proof of the distinction.

These conclusions are not much different from those reached by the Court of International Trade in May when it ruled against the tariffs in the first instance. The Trump administration also appears to have expected a defeat before the appellate court. Over the past month, it has sent multiple letters to the court to make additional arguments beyond what it offered in oral arguments in July. These arguments, which were not legal in nature, tended toward the hyperbolic and—in some cases—the apocalyptic.

“If the United States were forced to unwind these historic agreements, the President believes that a forced dissolution of the agreements could lead to a 1929-style result,” Solicitor General D. John Sauer wrote last month. “In such a scenario, people would be forced from their homes, millions of jobs would be eliminated, hard-working Americans would lose their savings, and even Social Security and Medicare could be threatened. In short, the economic consequences would be ruinous, instead of unprecedented success.”