As manufacturer’s orders slow and tariff refund suits proliferate in anticipation of the Supreme Court’s pending decision in Learrning Resources, it’s worth stepping back from pragmatics and taking in recent commentary on the decision’s implications for the Supreme Court’s jurisprudence, the United States’ foreign policy, and the Executive Branch’s ability to control the domestic economy. More below the fold.

Adam White, The Who’s and What’s of Presidential Power, SCOTUSblog (Dec. 5, 2025):

Why would a justice [Kagan] who is keen to reinforce statutory limits on presidential power in the tariffs case not be equally inclined to reinforce statutory limits on presidential power in this other context [Trump v. Wilcox and Trump v. Slaughter, on firing executive branch appointees]?

The answer boils down to two kinds of cases on presidential power. I call them the “who” cases and the “what” cases. The “who” cases involve presidents asserting constitutional power to fire agency heads; the “what” cases involve presidents asserting statutory power to set policy. The Roberts court sees these two questions very differently—and this is not a recent development. . . .

In short, the court has steadily increased the presidency’s power over agency personnel, but at the same time it has steadily decreased the presidency’s power over agency policymaking.

Peter E. Harrell & Jennifer Hillman, Unexpected Questions in Learning Resources v. Trump, Lawfare (Dec. 9, 2025):

At [the Learning Resources] oral argument the justices, the parties, and the government made various straightforward arguments [involving statutory interpretation] . . . . But the justices and the parties also spent much of the oral argument debating several issues that received much less attention in the written briefs . . . . While these unexpected questions are complex, a close analysis shows that each of them ultimately reinforces the arguments that IEEPA does not authorize tariffs.

The first unexpected issue that merited extensive discussion is one of the most intuitively appealing arguments in favor of the government’s case: . . . . If IEEPA authorizes embargoes, shouldn’t the statute include the seemingly lesser power to tariff? [This is the “donut hole” argument.]

[This argument] is wrong as a matter of both text and history. . . .

The second unexpected issue that arose at oral argument was the issue of how to interpret the concept of “licenses” in IEEPA. . . .

[S]ince IEEPA’s enactment in 1977, the government has never charged a fee for companies to apply for or to receive a license. While the government’s practice of refraining from charging fees for licenses is obviously not controlling precedent on the question of whether IEEPA could, in concept, be used to require a license fee, it reinforces the view that IEEPA is not intended to extract revenue from U.S. firms. . . .

Third, the justices grappled with the government’s argument that Trump’s tariffs are not intended to raise revenue, but are rather, as Solicitor General John Sauer argued, “regulatory tariffs” . . . .

[L]abeling the tariffs “regulatory” versus “revenue raising” should have no bearing on their legality. . . . Drawing a distinction based on an IEEPA tariff’s purported regulatory or revenue “purpose” would simply invite presidents to make pretextual arguments in favor of their tariffs, irrespective of the president’s actual objective.

Clark Packard & Stan Veuger, Trump Has Many Options If the Supreme Court Strikes Down Tariffs, Cato Inst. (Dec. 5, 2025):

If the Supreme Court strikes down the IEEPA tariffs, the critical question becomes which alternative authorities the administration will deploy. Unfettered use of Sections 122 [for “large and serious” balance of payments deficits] and 338 [for countries that “discriminate” against U.S. commerce] would recreate the current predicament: the president continuing to make major changes to tax policy and the business environment at his whim, generating paralyzing uncertainty, and redistributing massive amounts of resources without express congressional authorization.

The outlook improves somewhat if the administration must instead rely on sectoral “national security” tariffs under Section 232 and country-specific tariffs under Section 301 [for “unfair” foreign trade practices], particularly if courts are less deferential to implausible claims about national security threats or unfair trading practices.

Alan Wm. Wolff, Will the Supreme Court Determine the Fate of the Trump Tariffs?, Peterson Inst. Int’l Econ. (Dec. 4, 2025):

If the president senses, as the mid-term elections approach in 2026, that the “reciprocal” tariffs are increasingly unpopular, and that a majority in Congress might vote to end the emergency, he could declare that a large portion of the tariffs have served their purpose and back away from them substantially.  . . .

If the war in Ukraine settles into an armed ceasefire, the EU may no longer feel the need to implement all the terms of the deal made with the US in July, which called for the EU removing tariffs on US industrial and agricultural goods and the US imposing a 15 percent tariff generally on EU goods. Trading partners continue to harbor resentment over current arrangements, disparate treatment, and the US not fulfilling its prior obligations. The US-EU bilateral agreement and others of this kind could fray, and a renegotiation could take place, or the EU and others may decide to retaliate. Having sown the wind, the US could end up reaping a whirlwind.

Nadine Jones, How a Cold War Sanctions Law Could Become a Tool for Domestic Control, Jurist (Dec. 5, 2025):

Many observers left convinced the Court would strike down Trump’s use of IEEPA. I did not. Instead, I heard a Court struggling to find a rationale—any rationale—to uphold the president’s actions. . . .

For the first time in IEEPA’s history, US persons (i.e., US importers of record) are the primary target of the economic burden. American importers pay the penalty. Any impact on foreign nations is incidental. If the Court upholds this use of IEEPA, it effectively rewrites the statute into a presidential power to impose financial obligations on Americans by Executive Order. . . .

This case is about more than just cheap imports from China. It is about whether we allow a foreign-facing emergency statute to be transformed into a domestic taxing authority. The consequences will extend far beyond trade policy and stand to fundamentally redefine the limits of presidential power.

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