The Law is King—Tariff Ruling May Signal the End of Lawlessness
Newsweek
The Law is King—Tariff Ruling May Signal the End of Lawlessness | Opinion
Thomas G. Moukawsher
Published
Feb 24, 2026 at 06:00 AM EST
Approval of the Supreme Court remains near historic lows. Many perceived that the Court was repeatedly intervening to give President Donald Trump what he wanted. But last week’s ruling striking down the Trump tariffs should cause its most extreme critics to think again.
Most of its recent rulings have been about philosophy, not politics. A number of justices believe that key policy makers in the executive branch can’t be “independent” of the president—irreplaceable absent misconduct. They sided with Trump on this issue. But even those rulings weren’t final. They were temporary rulings that will stay in place awaiting more thorough analysis expected to come later this year.
Even the Court’s much reviled ruling on Trump slashing NIH spending didn’t say Trump had the right to make the cuts. Frustratingly, it was about where to file suit, not whether a suit could be filed. Meanwhile, the Court got the National Guard out of Chicago, and temporarily blocked Trump from firing a Fed governor.
And now we have the tariff ruling against Trump. It came about because the president distorted the language of a trade law in an attempt to take a taxing power out of the hands of Congress and put it in his own. The law at issue gave the president the power in a national security, foreign policy, or economic emergency to “regulate” or “prohibit” certain imported goods. Trump took the word “regulate” and said it included imposing tariffs.
Trump declared fentanyl an emergency. He declared our unfavorable trade situation an emergency. He sprayed a hail of tariffs across the globe and soon began nakedly using them as a tool of leverage over friend and foe alike. Those who supplicated—like the Swiss—got breaks. Those who offended Trump got tariffed harder.
Six out of nine Supreme Court justices saw this for what it was—lawlessness. A risk of substituting personal pique for public policy. Led by Chief Justice John Roberts, they made two key rulings. They rejected Trump’s claim that imposing a tariff isn’t raising taxes and gutted his claim that he could raise this kind of tax without Congress. Their willingness to do this deserves universal praise and should give Court skeptics pause.
If the justices can be criticized, it’s because they missed the chance to emphasize the most important thing at stake. Congress should not be allowed to give its core powers to the president—even voluntarily. If they do, Congress is dead and democracy with it.
Justice Neil Gorsuch got closest. He said a consensus of legislators is a wiser way to tax than the views of just one person. But none of the justices made enough of this issue. If a slavishly obedient Congress could simply pass a bill that says that the president can make all the laws in the future, we have a dictatorship. This should have screamed off the pages of the decision.
But the decision turned on whether Congress gave Trump the authority to tax instead of whether Congress could give Trump the power to tax. They said Congress didn’t because the law speaks of regulation not tariffs, and Congress shouldn’t be assumed to grant a major power like tariffs without being crystal clear about it. This assumption is called the “major questions doctrine.”
Several justices wrote opinions supporting the basic result and two wrote in opposition. But too many of the words throughout the 164 pages of discussion were about how to use the major questions doctrine and whether it’s a doctrine, a bit of pragmatism, or unnecessary. A fascinating bit of scholarship, but it missed the chance for a clear ruling on a major question for our time: Can Congress allow presidential dictatorship?
Worryingly, for Justice Clarence Thomas, the answer appears to be “yes.” Thomas argued that with but a few exceptions, Congress can give its entire power to the president. We can be grateful he was alone in this view.
And we can be grateful that the Court’s most extreme critics have been wrong. The Court has dragged its feet. It hasn’t stood up firmly. But even though Trump is already trying a new angle, we may now be on the road to ending lawlessness at last.