Someone asked whether I agreed with the recent decision in Learning Resources v. Trump (2026) No. 24–1287), finding our president had exceeded his power to issue tariffs under the supposed “emergency“ authority of what is called the International Emergency Economic Powers Act of 1977, 50 U. S. C. §1701 et seq. After reflection, my response surprised even myself, this being that is that I do not really have any real disagreement with either of the majority , concurrence, or the dissent. This is because while Congress did in fact make it clear that the president has strong powers over trade, including the ability to actually stop specific trade, the way this “emergency” power is defined is rather broad but still somewhat amorphous, i.e., it is based upon an “unusual and extraordinary threat.” While I do believe very strongly that statutes should be construed succinctly and with respect to their intent, the fact that Congress did not see fit to give sufficient guidance as to what is or is not “emergency“ means and the full scope of this emergency power means that one make a reasoned argument, both in favor and against, as to including tariffs under the broad powers granted by Congress to the President under IEPA.
Having said that, I thought the best arguments were put forth in the concurring opinion of Justice Gorsuch, who cogently pointed out that under IEPA the President has the statutory power to entirely prohibit certain aspects of trade. This Justice also provided logical analysis as to how the power delegated by IEPA should be construed. The concurrence found the “major questions doctrine” applied, limiting the scope of the delegation of power in IEPA:
As Justice Gorsuch further explained, permitting “emergency tariffs” under IEPA would grant the executive branch broad swaths of power which would be both unreviewable and beyond the enumerated powers found in Article II, powers instead reserved for Congress under Article I:
Having said that, I thought the best arguments were put forth in the concurring opinion of Justice Gorsuch, who cogently pointed out that under IEPA the President has the statutory power to entirely prohibit certain aspects of trade. This Justice also provided logical analysis as to how the power delegated by IEPA should be construed. The concurrence found the “major questions doctrine” applied, limiting the scope of the delegation of power in IEPA:
In several cases described as involving ‘major questions,’ the Court has reasoned that “both separation of powers principles and a practical understanding of legislative intent” suggest Congress would not have delegated “highly consequential power” through ambiguous language. (Id., p. 3.)
As Justice Gorsuch further explained, permitting “emergency tariffs” under IEPA would grant the executive branch broad swaths of power which would be both unreviewable and beyond the enumerated powers found in Article II, powers instead reserved for Congress under Article I:
This case offers an example of the problem. Article I grants Congress, not the President, the power to impose tariffs. Still, the President claims, Congress passed that power on to him in IEEPA, permitting him to impose tariffs on nearly any goods he wishes, in any amount he wishes, based on emergencies he himself has declared. He insists, as well, that his emergency declarations are unreviewable. A ruling for him here, the President acknowledges, would afford future Presidents the same latitude he asserts for himself. See Tr. of Oral Arg. 69. So another President might impose tariffs on gas-powered automobiles to respond to climate change. Ibid. Or, really, on virtually any imports for any emergency any President might perceive. And all of these emergency declarations would be unreviewable. Just ask yourself: What President would willingly give up that kind of power? (Id., p. 17; citations omitted.)
