Trump’s trade war is about to head to the Supreme Court: Could his tariffs be ruled unconstitutional?

You’d be forgiven for thinking President Donald Trump had done nothing this year but impose tariffs, given the frequency with which new ones have been announced.

Recently, Trump revealed plans for tariffs on imports of branded or patented drugs, furniture, and even foreign-made films. One key question immediately arose: does the president have the authority to impose sweeping tariffs on almost every product imported into the United States?

Court challenges target emergency powers

Earlier this month, a lower appeals court ruled that Trump had used federal law designed for emergencies to justify most of his tariffs, significantly overstepping his authority.

As a result, the U.S. Supreme Court will hear oral arguments on the legality of these tariffs on November 5. If the Supreme Court sides with the lower court, the Trump administration could be forced to remove the tariffs it imposed.

However, only tariffs established under the International Emergency Economic Powers Act (IEEPA), a 1977 law, are facing legal challenges.

In August, a federal appeals court in Washington, D.C., stated that the law “bestows significant authority on the president to undertake a number of actions in response to a declared national emergency, but none of these actions explicitly include the power to impose tariffs, duties, or the like, or the power to tax.”

If the Supreme Court ultimately rules these tariffs illegal, the United States could be required to pay back tens of millions of dollars it collected from them, according to Bloomberg analyst Chris Kennedy.

Experts call tariffs unconstitutional

John K. Veroneau, who served as deputy U.S. trade representative under President George W. Bush and assistant secretary of defense under President Bill Clinton, insists the tariffs cannot be allowed to stand, despite the Trump administration urging the Supreme Court to uphold them.

“Trump’s IEEPA tariffs are not imposed according to his constitutional authority under Article II, which could otherwise warrant judicial deference,” Veroneau explains. “Rather, he is exercising statutory authority based on a mistaken view that Congress intended IEEPA as a broad delegation of its tariff-setting powers to the president. This claim is unsupportable and merits little deference.

“The Court should affirm the Federal Circuit opinion and let Congress decide whether it wishes to set new tariff levels, just as the U.S. Constitution intended.”

Some tariffs remain legally protected

Approximately a third of tariffs proposed or issued on U.S. imports fall under a separate legal provision related to national security, called Section 232. Tariffs on cars, machinery, medical devices, aluminum, copper, and steel are included in this category and are immune to the legal process.

The same goes for Section 301 tariffs, which target unfair trade practices and are applicable to specific countries or products. This includes hundreds of billions of Chinese goods, such as apparel, electric vehicles, and electronics. Some Brazilian goods are also affected.

The legal distinctions mean the Trump administration will face challenges only on certain tariffs, while many others remain untouched, effectively allowing the administration to pursue much of its trade agenda despite court scrutiny.

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