The U.S. Supreme Court Does Its Job - Rob Horowitz

Rob Horowitz, MINDSETTER™

The U.S. Supreme Court Does Its Job - Rob Horowitz

Chief Justice Roberts put it more elegantly in his majority opinion, “The president asserts the extraordinary power to unilaterally impose tariffs of unlimited amount, duration, and scope. In light of the breadth, history, and constitutional context of that asserted authority, he must identify clear congressional authorization to exercise it.”

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In a concurring opinion, Justice Gorsuch reminds us that despite the president continuing to falsely insist that foreign governments pay the tariffs, these levies are import taxes paid by American businesses and consumers. “Americans fought the Revolution in no small part because they believed that only their elected representatives (not the King, not even Parliament) possessed authority to tax them,” Justice Gorsuch wrote.

Even the more honest argument made by some supporters of the tariffs-- one that acknowledges they are import taxes but asserts that foreign businesses, to stay competitive, will lower their prices sufficiently to cover these additional costs to Americans--runs counter to the facts. Two new studies by the Federal Reserve Bank of New York and the Congressional Budget Office (CBO) reach the same conclusion: more than 90% of the real costs of the president’s tariffs fall on American businesses and consumers. CBO breaks it down as follows, Reuters reported: “foreign exporters will absorb 5% of the cost, and in the near term, U.S. businesses will absorb 30% of the import price increases by reducing their profit margins; the remaining 70% will be passed through to consumers by raising prices.”

In 2025, the Trump tariffs “amounted to a tax increase of $1,000 for the average American household,” according to the non-partisan Tax Foundation. Before the Court decision, the cost in 2026 was estimated to rise to $1,300. The Tax Foundation adds that the imposition of the tariffs had slight-- if any impact--on the trade deficit, which dropped by only $2.1 billion from $903.5 billion in 2024 to $901.4 billion in 2025. In fact, the goods portion, the component of the trade deficit most likely to be impacted by tariffs, “actually increased by $25.5 billion year over year,” Tax Foundation points out.

The Court decision provided Mr. Trump with an opportunity to recalibrate his approach to tariffs. After all, his broad and erratic imposition of tariffs is very unpopular with the American public, inflationary, and has alienated allies and trading partners, many of which are hedging their bets by cozying up to China.

Instead, however, President Trump has chosen to double down, beginning with a more than one-hour televised temper tantrum in response to the decision in which he disgracefully attacked the justices, reserving the most vitriol for his appointees who sided with the majority. Among other choice insults, the president said Amy Coney Barrett and Neil Gorsuch were “embarrassments to their families,” and “disloyal to the Constitution,” and accused the Court as a whole of being subject to foreign influence.

He then rushed to announce a new 10% global tariff, which he quickly upped to the 15% maximum permitted under Section 122 of the 1974 Trade Act that he is invoking with questionable legality. These new tariffs are designed to serve as at least a partial, temporary replacement for the tariffs struck down by the Supreme Court. They expire, however, in 150 days unless Congress votes to continue them; that's highly unlikely. Also, conservative legal expert Andy McCarthy wrote in his National Review column,” These new tariffs are even more clearly illegal than Trump’s IEEPA tariffs.” (the ones the Court just invalidated). The former assistant U.S. attorney persuasively argues that the Trump administration can’t come close to meeting the preconditions required to invoke Section 122 in this manner.

While Mr. Trump’s latest tariff maneuver is likely to face immediate legal challenge, it is unlikely that it will be finally invalidated before the 150-day clock runs out. The administration plans to use that time to do the trade investigations under Section 232 of the Trade Expansion Act of 1962 that can provide the legal justification for product-specific or, in some cases, nation-specific tariffs. The bottom line, however, is that because of the Court’s decision, the president’s ability to impose tariffs at will and too often on a whim has been severely circumscribed and at least partially bounded by the rule of law.

The 6-3 decision, bringing together 3 of the Court’s conservative members with its 3 liberal members, sends an important broader message as well. It demonstrates that the Court will stand up to naked and lawless presidential power grabs, not simply do Mr. Trump’s bidding. To put it more simply, it shows that when push comes to shove, we can count on the Supreme Court to do its job.