Supreme Court Justice Kavanaugh Criticizes “Illogical” Majority Opinion on Tariff Authority

In a forceful dissent delivered Friday, Supreme Court Justice Brett Kavanaugh criticized the Court’s 6-3 decision to strike down former President Donald Trump’s emergency tariffs as “illogical” while offering alternative pathways for implementing similar economic policies.

Kavanaugh, who was appointed by Trump during his presidency, argued that the majority selectively interpreted how imports could be regulated under the International Emergency Economic Powers Act (IEEPA). Making what he described as a textualist case, Kavanaugh contended that if the law permits import quotas and embargoes, it should naturally extend to tariffs, which he characterized as “far more modest” measures.

“If quotas and embargoes are a means to regulate importation, how are tariffs not a means to regulate importation? Nothing in the text supports such an illogical distinction,” Kavanaugh wrote in his dissent.

The case stems from Trump’s unilateral decision last year to impose tariffs on nearly all countries worldwide by invoking the IEEPA. The former president justified this action by citing the influx of illicit drugs from China, Mexico, and Canada, as well as a trade deficit that he claimed had devastated American manufacturing—conditions he declared constituted national emergencies warranting tariff implementation.

In the majority opinion, Chief Justice John Roberts ruled that while IEEPA permits presidents to “regulate importation” during declared national emergencies, the statute does not explicitly authorize tariffs, which fall under Congress’s core taxing authority. Roberts invoked the major questions doctrine, asserting that when executive actions carry significant economic consequences, Congress must authorize such powers with unmistakable clarity.

Kavanaugh countered by referencing the Court’s 2022 decision upholding former President Joe Biden’s vaccine mandate for healthcare workers, arguing it “strongly supports” the case for upholding Trump’s tariffs. He noted that both executive actions carried major consequences despite lacking explicit statutory authorization.

During oral arguments in November, Solicitor General John Sauer, representing the government, emphasized that tariffs were crucial negotiation tools in international relations. Sauer equated tariffs to embargoes, which block imports entirely, while acknowledging that tariffs have the “incidental and collateral effect” of raising revenue. Their primary purpose, he maintained, was regulation rather than revenue collection.

“As the [majority of justices] interpret the statute, the President could, for example, block all imports from China but cannot order even a $1 tariff on goods imported from China,” Kavanaugh wrote, highlighting what he viewed as an inconsistency in the Court’s reasoning.

In a notable portion of his dissent, Kavanaugh outlined several alternative statutes Trump could utilize to achieve similar economic goals, suggesting that the majority “in essence” concluded that Trump had merely “checked the wrong statutory box.” This roadmap for future action was acknowledged by Trump himself, who praised Kavanaugh for “his genius and his great ability” while noting he was “very proud of that appointment.”

The former president referenced Kavanaugh’s assessment that “the decision might not substantially constrain a president’s ability to order tariffs going forward,” adding: “We have very powerful alternatives.”

Kavanaugh also raised concerns about practical implications left unaddressed by the majority opinion, particularly regarding how the U.S. Treasury would manage refunding billions of dollars collected through what have now been deemed unlawful tariffs.

“The United States may be required to refund billions of dollars to importers who paid the IEEPA tariffs, even though some importers may have already passed on costs to consumers or others,” Kavanaugh warned. “As was acknowledged at oral argument, the refund process is likely to be a ‘mess.'”

The majority opinion, authored by Roberts, emphasized that IEEPA’s language intentionally omits the word “tariff” while permitting other forms of import regulation. Roberts determined that tariffs function essentially as taxes because they generate government revenue—a power constitutionally reserved for Congress.

Justices Samuel Alito and Clarence Thomas joined Kavanaugh’s dissent, with Thomas also filing a separate dissenting opinion.

The ruling represents a significant constraint on presidential trade authority and creates uncertainty about the process for refunding tariffs already collected, potentially triggering numerous lawsuits from businesses seeking reimbursement.