One-Way Ratchet and a Different Kind of Pastry: Trump Tariffs at the Supreme Court( continued from page 5)
Justice Kavanaugh engaged in an exchange with shippers’ counsel Benjamin Gutman noting that his interpretation of IEEPA would allow shutting down trade but would not permit imposing a one percent tariff. He said that leaves“ in the government’ s words in its brief, an odd donut hole in the statute.” Gutman replied,“ it’ s a fundamentally different power. It’ s, it’ s not a donut hole; it’ s, it’ s a different kind of pastry.” Justice Kavanaugh noted, however, that“ Congress has repeatedly said a tariff on foreign imports is an exercise of the commerce power, not of the taxation power.” Gutman responded that“ the federal government hasn’ t identified a single other federal statute that uses the term regulate to authorize tariffs or taxes. That is just a different kind of power.” Justice Jackson chimed in that“ it’ s a different kind of power that’ s being authorized by this statute [ IEEPA ] is the power to control or freeze trade.” Gutman responded that the concern is“ about the abuse of the power to impose unlimited taxes with no, with, with sort of no controlling principle.”
On balance, the Court overall appeared skeptical about the broad scope of the government’ s claim that“ regulate importation” in IEEPA delegates unlimited tariff authority upon the president. There are mechanisms within the trade acts, for example, Sections 232 and 338 discussed above, that permit the imposition of tariffs within constraints defined by Congress. IEEPA’ s constraints are illusory or, as Justice Gorsuch said it best, amount to a“ one-way ratchet” that would transfer Article I’ s taxing power to the president that Congress, as a practical matter, cannot get back. The Court’ s decision will have profound implications for the future course of this administration’ s economic policies and more importantly for the constitution itself.
This article was first published in Texas Lawyer on November 12, 2025.
Reprinted with permission from Texas Lawyer © 2025 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877.257.3382 or reprints @ alm. com.
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