The US Supreme Court’s tariff rebuff: It’s time for Congress to assert its constitutional authority

But with its 6-3 ruling on 20 February, America’s top court not only reaffirmed the separation of powers but invited Congress to reassert itself as the branch with the power of the purse. Congress should get its act together and tell the president if he wants to keep his tariffs, he’ll need to work with them to do it.

It could take a lot of persuasion. Within hours of the ruling, Trump delivered a rambling press conference where he dismissed both lawmakers and the court. He noted that some tariffs he had already declared under different laws had not been struck down by the courts and announced plans to expand others using Section 122 of the US Trade Act of 1974. That provision allows the president to declare import surcharges of up to 15%, but only for 150 days, not indefinitely.

Of course, if Trump wanted the tariffs to last for more than a few months, he could work with Congress on a longer-term solution. But that would require him to agree that laws are things to be followed and Congress is a branch of government to be respected. Neither will happen.

When a reporter asked Trump why he doesn’t try to get congressional approval, he replied: “I don’t have to.” Then, he stubbornly insisted: “I have the right to do tariffs. I’ve always had the right to do tariffs.” Congress has demonstrated that most of its members aren’t tariff fans, but Republican party leaders don’t seem ready to find the votes to do much about it.

Throughout the majority opinion, judges seemed to be reminding Congress that while the president cannot unilaterally impose unlimited emergency tariffs, he’s not out of options as long as he works with lawmakers.

Justice Neil Gorsuch, a conservative whom Trump appointed to the bench in 2017, seemed to be speaking directly to the president and the MAGA wing of the Republican party in his concurring opinion. “For those who think it important for the Nation to impose more tariffs, I understand that today’s decision will be disappointing,” Gorsuch wrote. “All I can offer them is that most major decisions affecting the rights and responsibilities of the American people (including the duty to pay taxes and tariffs) are funnelled through the legislative process for a reason.”

Gorsuch acknowledged that “Legislating can be hard and take time.” He acknowledged that “It can be tempting to bypass Congress when some pressing problem arises.”

Underscoring his reputation as a constitutional originalist, Gorsuch also said something the framers would have liked. He noted that “the deliberative nature of the legislative process was the whole point of its design. Through that process, the Nation can tap the combined wisdom of the people’s elected representatives, not just that of one faction or man.” He then wisely pointed to the fact that when legislation must “earn broad support,” it is more likely “to endure, allowing ordinary people to plan their lives in ways they cannot when the rules shift from day to day.”

Unfortunately, few in the party’s leadership echoed it. There are two reasons for this. First, Trump and Congress leaders know that 60% of Americans disapprove of the president’s tariff policies. And second, Trump has run the table on Congress for so long that Republicans are terrified to push back. For the past 13 months, Congress has abdicated its role as a check on the executive. Lawmakers remained silent as the president cut billions of dollars in congressionally mandated funds, renamed the congressionally established Kennedy Center after himself and dismantled agencies he doesn’t like.

Congress not only allowed Trump to illegally use emergency declarations to impose global tariffs but has done nothing as he’s spent money on things that were never authorized—like transferring $10 billion from the US government to his personally controlled ‘Board of Peace.’ And Congress has been AWOL on oversight, allowing the president to dismiss congressional appointees from independent commissions, accept questionable gifts from foreign countries, engage in conflict-ridden business deals and gut the federal watchdog system.

The US Constitution’s framers didn’t intend for Congress to be a coequal branch of the executive. They wanted it to be the first branch because it’s closest to the people and can better reflect the public’s values and interests. It’s time for the US Congress to tell Trump: We’ve got this. ©Bloomberg

The author is a politics and policy columnist for Bloomberg Opinion.