Donald Trump’s assertion of presidential power to set tariffs was rejected this morning by a 6–3 Supreme Court. Frankly, Trump was lucky to get three votes for his position. Trump will need to go back to the drawing board to find a different legal basis for presidential tariff power; some such powers have been granted by Congress, but none as extensive and unconstrained as the emergency presidential powers Trump claimed to locate in the International Emergency Economic Powers Act of 1977 (IEEPA).

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Chief Justice John Roberts wrote the majority opinion, which leaned mainly on two points: that IEEPA’s language “cannot bear such weight” as the administration claimed, and that the taxing power in particular (of which tariffs are a subset) must be delegated by Congress in clearer terms than the vaguely, squint-if-you-can analogies drawn to IEEPA’s language about “regulation” of imports by “licenses.” The Court affirmed the Federal Circuit’s ruling enjoining the tariffs, but did not much discuss the details of the remedy, much less what sorts of repayments could be sought.

As many of us predicted, the decision took longer because the result was somewhat fractured. The Court’s three liberals joined the majority (predictably, because it ruled against Trump) but declined to join a portion of that opinion that invoked the major questions doctrine. Justice Neil Gorsuch wrote a 46-page concurring opinion, and Justice Amy Coney Barrett added a concurrence of her own. Justices Clarence Thomas and Brett Kavanaugh each wrote dissenting opinions, joined by Justice Samuel Alito. The Court also threw out one of the two challenges before it — the one filed in district court — concluding that the Court of International Trade had exclusive jurisdiction over the case.

Gorsuch gives a sense of the splits:

Past critics of the major questions doctrine do not object to its application in this case, and they even join much of today’s principal opinion. But, they insist, they can reach the same result by employing only routine tools of statutory interpretation. Post, at 1 (KAGAN, J., joined by SOTOMAYOR and JACKSON, JJ., concurring in part and concurring in judgment). Meanwhile, one colleague who joins the principal opinion in full suggests the major questions doctrine is nothing more than routine statutory interpretation. Post, at 1 (BARRETT, J., concurring). Still others who have joined major questions decisions in the past dissent from today’s application of the doctrine. Post, at 1 (KAVANAUGH, J., joined by THOMAS and ALITO, JJ., dissenting). Finally, seeking to sidestep the major questions doctrine altogether, one colleague submits that Congress may hand over to the President most of its powers, including the tariff power, without limit. Post, at 1–2 (THOMAS, J., dissenting).

Past critics of the major questions doctrine do not object to its application in this case, and they even join much of today’s principal opinion. But, they insist, they can reach the same result by employing only routine tools of statutory interpretation. Post, at 1 (KAGAN, J., joined by SOTOMAYOR and JACKSON, JJ., concurring in part and concurring in judgment). Meanwhile, one colleague who joins the principal opinion in full suggests the major questions doctrine is nothing more than routine statutory interpretation. Post, at 1 (BARRETT, J., concurring). Still others who have joined major questions decisions in the past dissent from today’s application of the doctrine. Post, at 1 (KAVANAUGH, J., joined by THOMAS and ALITO, JJ., dissenting). Finally, seeking to sidestep the major questions doctrine altogether, one colleague submits that Congress may hand over to the President most of its powers, including the tariff power, without limit. Post, at 1–2 (THOMAS, J., dissenting).

I’ll have more on the Court’s reasoning.

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