Washington Merry-Go-Round

IMMEDIATE RELEASE 31 January 2026
WASHINGTON MERRY-GO-ROUND
Today’s Events in Historical Perspective
America’s Longest-Running Column, Founded 1932
What is delaying the all-important court ruling on tariffs?
By Douglas Cohn and Eleanor Clift         
 
WASHINGTON – The Supreme Court is on winter recess until Feb 20, which means it is unlikely there will be a ruling on President Trump’s tariffs until then. The case was filed on the expedited docket, and the oral arguments were heard in November, so what gives?
This is a huge decision that strikes at the very heart of Trump’s executive powers, his economic policies, and the conduct of his presidency. While SCOTUS ponders, Trump slaps tariffs on friend and foe alike, recently threatening Europe with additional 10 percent tariffs if they did not give him Greenland.
He has warned the Supreme Court of “economic disaster” if they reject his tariff authority under the International Emergency Economic Powers Act. Most court watchers expect SCOTUS to rein in Trump, potentially ruling his unbridled tariffing is unconstitutional, but then cushion the blow by avoiding any clear ruling or restraint on his use of emergency powers to justify his tariffs and other executive actions.
Why the delay in what was expected to be a swift decision? The likely reason is the justices do not agree, and they are trying to find a majority that is proving elusive.
First, the magnitude of the decision. It is not just an up and down vote on the constitutionality of Trump’s tariffs. That is just one component, and three of the Court’s six conservatives (Chief Justice Roberts, Justice Gorsuch, and Justice Barrett) appear aligned with the Court’s three liberals on ruling that tariffs are Congress’s purview, and Trump’s tariffs without congressional approval are unconstitutional.
Second, it appears likely that the Court will avoid rendering a decision on whether Trump has overstepped in his use of emergency powers. He says the trade deficit is out of control, which is why he had to step in to apply tariffs and get the country ‘s trade balance in order. He cited an “invasion” at the border to justify sending federal troops into California.
Citing an emergency is how Trump gets around any guardrails that might be in place. The Court’s three liberals would like to curb Trump’s profligate use of his emergency powers, and they may have three allies on the right in Justices Kavanaugh, Alito, and Thomas. While these three conservatives believe Trump is acting constitutionally, they also may believe that if the Court rules against him and declares his tariffing unconstitutional, then the money collected by the tariffs should be returned.
That would trigger what Court watchers call the “nightmare scenario.” At the oral arguments in November, Justice Barrett asked about returning money ruled ill-gotten with tariffs. She concluded it would be “a big mess.”
Nobody talks about that aspect. It would expose Trump’s lie that foreign entities pay tariffs, and his administration is collecting billions. The truth is that importers of foreign goods pay the tariff and generally pass on the cost to consumers.
If SCOTUS rules the money must be returned, it will go back to big corporations like Amazon and Apple, and it is unlikely they will pass along any windfall to consumers.
Summing up, this is the conundrum facing Chief Justice Roberts. He could be looking at three different 6 to 3 coalitions. One with Roberts, Gorsuch, and Barrett joining the three liberals to declare Trump’s tariffing unconstitutional.
Another with Kavanaugh, Alito, and Thomas joining the three liberals to say if the tariffs are unconstitutional, the money should be returned.
And a third along strictly party lines, with all six conservatives opposing any meaningful decision on reining in Trump’s emergency powers, with the liberals on the other side. There you have it, folks, the highest Court in the land at work.
 
See Eleanor Clift’s book Selecting a President, and Douglas Cohn’s latest books The President’s First Year: The Only School for Presidents Is the Presidency and World War 4: Nine Scenarios (endorsed by seven flag officers).
Twitter:  @douglas_cohn
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END WASHINGTON MERRY-GO-ROUND