In writing his concurring opinion in the Supreme Court decision that struck down President Donald Trump’s emergency tariffs, Justice Neil Gorsuch knew that supporters of the import duties would disapprove of the majority’s ruling. To those who wanted the federal government to undertake an expansive use of tariffs, he gave some jurisprudential consolation, spelling out why the legislature should have a role in crafting such policy.
“Yes, legislating can be hard and take time. And, yes, it can be tempting to bypass Congress when some pressing problem arises,” Gorsuch wrote in the final paragraph of his concurrence in Learning Resources v. Trump. “But 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. There, deliberation tempers impulse, and compromise hammers disagreements into workable solutions.”
That description does not much resemble the dynamics in Congress today, as Trump has routinely gone around the legislature to institute his policies. Getting congressional approval for his tariff regime would be difficult and time-consuming, and any tariffs Congress could pass would fall short of what he wanted. That’s one reason why there were many who disagreed with Gorsuch—including members of the House of Representatives.
“I think it’d be interesting to see if the Congress can actually even handle something that complex and diverging,” Republican Rep. Claudia Tenney of New York told The Dispatch of trade policy. “There’s just a lot to tariffs. They’re very specific. We work every day with the Commerce Department because we have so many companies that are international. We deal with Canada, especially, in my northern border district. So I don’t have a lot of confidence in Congress to be able to manage this, especially if the Democrats take over the House” after the midterm elections.
Article I of the Constitution gives Congress the power to levy tariffs, but it has since delegated some of that power to the executive branch, passing several laws to that effect in the latter half of the 20th century that Trump has relied on or could rely on to levy his tariffs. But Trump’s use of tariffs under those statutes is unprecedented, and congressional Republicans have not taken the initiative to rein it in. Speaker Mike Johnson has said Trump already has statutory authority to levy new import duties and does not need congressional approval following the Supreme Court’s ruling.
While this Congress is far from the first to give power away to the executive, there is no sign that it will be the one to take such authority back. Instead, lawmakers have argued that the legislature should not have a privileged position in crafting trade policy. That’s one of several reasons why the likelihood of any congressional action on tariffs in the next few months is low.
Tenney sits on the trade subcommittee of the House Ways and Means Committee, which has jurisdiction over tariffs, and she noted the opposition of Democrats—who have traditionally been more protectionist on trade policy—to Trump’s tariffs as a reason for Congress not to take an active role in crafting tariffs. “I think that we have no consensus right now because the Democrats refuse to vote on common sense legislation for us,” she told The Dispatch.
Other Republicans on the subcommittee expressed similar thoughts.
Rep. Greg Murphy of North Carolina said he was “appreciative” of Gorsuch’s comments in his opinion but argued that Trump needed flexibility as he negotiates trade deals with other countries. “I think that if you look at what negotiations occur, especially in this, such a divided Congress, being able to be nimble in negotiations would be exceedingly challenging,” he told The Dispatch.
And Rep. Lloyd Smucker of Pennsylvania also argued that it would be difficult to craft a trade deal with another country while getting input from all members of the House and Senate. “It’s hard to negotiate a deal with 535 people, so Congress has delegated that to the president in multiple instances just because, practically, that’s really the only way to negotiate deals,” he told The Dispatch. “But then I think it does make sense for Congress to come back and sort of ratify and codify the deals that have been negotiated.” Smucker acknowledged, however, that a deal that Congress ratified could look different from one that the president negotiated after it made its way through the legislative process.
“I think this has actually been, frankly, a long-developing issue in the way politics is done in this country … that the legislature has not lived up to that ideal described by Justice Gorsuch.”
Rep. Kevin Kiley
In the wake of the Supreme Court’s ruling, some Republicans advocated for congressional action to codify the tariffs Trump had put in place under the International Emergency Economic Powers Act (IEEPA). Sen. Bernie Moreno of Ohio called on Republicans to use the budget reconciliation process, by which they can bypass the Senate’s 60-vote filibuster threshold to approve tax and spending legislation, to do so. “These tariffs protected jobs, revived manufacturing, and forced cheaters like China to pay up,” he tweeted. “Now globalists win, factories investments may reverse, and American workers lose again.”
It is exceedingly unlikely that the GOP will be able to do that, since enough Republicans disapprove of at least some of Trump’s tariffs to deny the party a majority in either chamber. The Senate last year passed several resolutions to repeal tariffs on Canada, Brazil, and the rest of the world, and the House earlier this month passed a measure to rescind the Canada duties. In all those cases, a handful of Republicans voted with Democrats. Those were, however, all merely symbolic rebukes since the House could not vote on the Senate-passed legislation until a few members of the House GOP caucus voted with Democrats earlier this month to stop Johnson’s blockade of resolutions to repeal the tariffs. The Senate did not take up the House-passed resolution on the Canada tariffs before the court’s ruling. Still, even if Congress had successfully passed one of the resolutions, it would still be subject to Trump’s veto, and none of the votes had the two-thirds majority necessary to override it.
Johnson himself acknowledged this week that it would be “a challenge to find consensus on any path forward on the tariffs” in the legislative branch. In closed-door meetings with conservative advocacy groups, his staffers have predicted that a bill to codify Trump’s tariffs would lose between 20 and 40 percent of House Republicans, according to National Review.
While Republicans do not have the votes to pass such a bill, Democrats do not have the power to halt the president’s tariff agenda. Trump’s use of IEEPA also afforded Democrats the statutory power to file privileged resolutions to force votes on repealing them. With Trump now using Section 122 of the Trade Act of 1974 to levy tariffs for 150 days without congressional approval, they no longer have that power. Rep. Gregory Meeks, the top Democrat on the House Foreign Relations Committee who led the House-passed resolution to repeal the Canada tariffs, said that “everything’s on the table” but indicated that the power to combat Trump’s tariffs depended more on legal action than on Congress until the 150 days are up.
“If you’re looking at Section 122, what was Congress’ intent when they wrote that? Again, it’s something that [has] never been used before,” he told The Dispatch. “I believe the circumstances are different. So we’re going to look at that. So there may be room to go back to court again, in essence of that. So we’re going to look at that. We know that it’s restrictive. You only got 150 days, and then he’s got to come back to Congress.”
However, there is the possibility that Trump could just reinstate the tariffs on his own once the 150 days expire. As trade expert Kathleen Claussen of Georgetown University Law School told The Morning Dispatch, “I don’t see any legal barrier to the President on day 151, declaring, again, that 122 is in place.” The administration is also investigating whether he can use other statutes to levy tariffs on his own.
Meanwhile, tariff dissenters in the Republican Party sounded optimistic about Congress taking more of a role in crafting trade policy following the ruling, despite the fact that the decision has not deterred Trump. Rep. Don Bacon of Nebraska said he was “vindicated” after the court’s decision came down and predicted to The Dispatch that the Section 122 tariffs would be found unconstitutional as well. Rep. Kevin Kiley of California called for Congress to be “centrally involved in trade policy” and praised Gorsuch’s extolling the virtues of the legislative process.
“I thought it was very well-stated. Like, I think that’s precisely why we have a legislative branch,” he told The Dispatch. “I think this has actually been, frankly, a long-developing issue in the way politics is done in this country … that the legislature has not lived up to that ideal described by Justice Gorsuch. So it’s not just on this particular issue. I think in a lot of ways, we need to get back to Article I living up to the vision put in place by the Founders.”
