Noah Feldman writes:

It took almost a decade, but Chief Justice John Roberts and the Supreme Court finally found a way to stand up to President Donald Trump’s executive power overreach, striking down the tariffs that are the signature initiative of his presidency. Not since the Supreme Court struck down the first New Deal in 1935 has the court reversed a policy of comparable importance to a sitting president.

The 6-3 decision gives Trump two options. He can accept the outcome and attempt to reenact various tariffs using other sources of legal authority, triggering future legal battles that he might win if he sticks to legally mandated procedures. In that case, the court’s conservative majority will continue to allow many of his extensions of executive power to stand in other areas.

Or Trump can take an extremely aggressive stand against the court, in which case the decision could become a turning point, emboldening the justices to strike down additional Trump initiatives that violate longstanding legal precedent.

The tariffs case presented an especially good opportunity for the court to take on Trump because it could be confident that its decision would actually be implemented. Unlike a situation in which the court orders the executive branch, say, to return a person deported abroad, and the executive might refuse, the collection of tariffs is a legal proceeding that cannot proceed without judicial authorization. The opinion in the tariffs case will boost not only the court’s legitimacy as an institution capable of standing up to the president but also its power to constrain Trump in practice.

Seen in historical terms, the tariffs decision hints that the Roberts Court realizes it hasn’t, until now, fulfilled its fundamental task of keeping Trump within the rule of law. The court’s compromise decision in the Muslim ban case, Trump v. Hawaii, back in 2018, failed to send Trump the message that the Constitution matters. Worse, the court’s presidential immunity decision, Trump v. U.S., which Roberts designed to preserve the republic by stopping presidents from prosecuting their predecessors, backfired disastrously, emboldening Trump to act lawlessly. Now the court is trying a different tack, flatly telling Trump he can’t do what he believes he can.

The majority opinion, written by Roberts, grounded the decision in the text of the International Emergency Economic Powers Act (IEEPA), which Trump relied on to impose the unilateral tariffs. He, the court’s three liberal justices, arch-conservative Justice Neil Gorsuch, and swing Justice Amy Coney Barrett all agreed that the words “regulate … importation” in IEEPA do not give the president authority to impose open-ended tariffs even in an emergency.

In a part of the opinion joined only by Gorsuch and Barrett, Roberts invoked his personal favorite theory, the major questions doctrine. Roberts invented the doctrine during the Biden administration as a tool to limit executive branch statutory interpretations deemed unprecedented and big enough to warrant the court’s perspective.

By applying the major questions doctrine against Trump, Roberts sent the message that he is capable of acting in a nonpartisan manner. That self-understanding is crucial to Roberts’s judicial philosophy and his hopes for his judicial legacy. Famous for describing himself as an umpire calling balls and strikes, Roberts has been looking for an opportunity to show that he is not in Trump’s pocket. [Continue reading…]