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The Supreme Court’s Political Attack Masquerading as a Judicial Decision

 

When the Supreme Court goes against all precedent to apply an inapplicable judicial standard to a case, hamstringing the president, that’s political.

 

February 23, 2026

By S. David Sultzer

Reprinted from American Thinker

 

In Learning Resources, Inc. v. Trump, the Supreme Court used a legal test meant to rein in the regulatory state and, instead, misapplied it to the President’s powers to manage foreign policy. This leads to an absurd outcome that leaves the President with draconian powers over foreign trade, but a limited ability to take effective, lesser measures. It is hard to see this as anything but another unjustified judicial attack on President Trump.

As to the immediate effect of the decision, Shipwrecked Crew is likely accurate:

The reality is that this decision will not end the Trump administration’s ability to use tariffs as a foreign policy tool under a plethora of other statutes:

And, indeed, he’s already begun the process.

Moreover, leaving aside the $287 billion in tariffs collected last year, two-thirds of which might now have to be refunded, the tariffs have already accomplished much of Trump’s plans to remake trade agreements across the globe.

So why this decision and why is it important?

First, to understand what is going on, here is the big picture: It begins with Art. 1, Section 1, of the Constitution, which gives Congress the sole authority to write laws. However, a century ago, progressives created the regulatory state, after which Congress, without amending the Constitution, ceded much of its authority to write laws to regulatory agencies. This has completely distorted our constitutional republic.

As I pointed out in 2012:

Congress is very far from even being the most important source of our legislation. Our nation now most clearly resembles the socialist regulatory bureaucracy of the EU, where mountains of regulations with the full force and effect of law are passed by unelected bureaucrats. In our nation today, individuals, businesses, and private and public organizations can be fined, sanctioned, forced to close, and jailed for violating federal regulations that have never been subject to a vote by our elected representatives, nor signed into law by the President. The genius of our Constitutional system of checks and balances is wholly obliterated in the tyranny of our modern regulatory bureaucracy.

The last several years have seen the right-leaning Supreme Court, to its credit, begin to bring this constitutional obscenity to heel. Grok provides a good summary of Supreme Court decisions over the past decade.

One of the methods the Supreme Court has adopted to rein in regulatory overreach is a subjective test called the “major question” doctrine. This says that some issues are so nationally significant that the Court will presume, absent an explicit contrary statement (aka “magic words”), that Congress did not intend to give its legislative powers to a regulatory agency.

This doctrine worked to limit regulatory overreach. The Supreme Court used it in 2022 to halt the EPA’s plan to enact a massive regulatory scheme that would have remade our nation’s energy sector and cost the nation hundreds of billions of dollars, all based on ambiguous language in the Clean Air Act, a law written decades before regulating CO2 was ever an issue.

But the Learning Resources, Inc. case is not about Congress granting power to a regulatory agency. The case is about the powers that Congress granted the President to manage foreign trade in times of crisis. And in that context, for the Court to apply the major question doctrine to the law and require “magic words” for specific presidential acts becomes very problematic.

Learning Resources, Inc. examined whether Congress gave the President the power to impose tariffs as part of 1977’s International Emergency Economic Powers Act (IEEPA). The act, at 50 U.S. Code § 1701, gives the President the power to declare a national emergency in response to “unusual and extraordinary” foreign threats to our “national security” or “economy.” 50 U.S. Code § 1702 then gives the President a laundry list of powers to address this threat. This is not limited to the power to “regulate” foreign trade but also includes the far more extreme power to “prohibit” trade with specific countries.

President Trump duly made findings that drugs pouring into this country are a national security threat and that unfair trading practices have brought our nation to an economic crisis, while destroying much of our manufacturing capacity. These economic realities are also a major national security threat. The law envisions a rapid response to urgent conditions.

Nevertheless, in what seems a supremely unprincipled decision meant to cause problems for President Trump, Chief Justice Roberts applied the “major question” doctrine to hold that, because Congress did not explicitly use the magic word “tariff” in the list of powers extended to the President in the statute, he would not assume that the President had the power to enact a tariff as part of the power to “regulate” commerce.

True, Art. I, Section 8 gives Congress the sole power to tax, and tariffs are a form of taxes. But the “major questions” doctrine has never been applied in the foreign policy arena. As Justice Thomas documents, Presidents have been unilaterally imposing tariffs on foreign trade since the Founding. And as Justice Kavanaugh points out, President Nixon and others have imposed tariffs in the modern era based on Congress authorizing the President to “regulate” foreign commerce in an emergency.

This decision to hamstring President Trump’s ability to govern in a crisis is a ludicrous application of the “major question” doctrine, and our nation’s history does not support it. Moreover, it has long been the rule that courts should not interpret a statute in a way that leads to an absurd result if a reasonable alternative is possible.

In this case, the absurd result is that, under this new reading of the statute, a president can unilaterally shut down all foreign trade with a particular nation to address a crisis, but cannot exercise the much less draconian power of enacting a tariff while allowing trade to continue.

Space prevents me from pointing out all the bases on which this decision is wrong. That said, let’s at least address the incredible hypocrisy of our Chief Justice in his sudden bout of judicial modesty. In justifying his decision, Roberts writes “[T]he Government cannot identify any statute in which the power to regulate includes the power to tax.”

You’ve got to be kidding me. Even setting aside all the examples provided by Justice Kavanaugh, this claim from Roberts requiring explicit language is more than rich.

In 2012, Chief Justice Roberts wrote the opinion in National Fed. Of Independent Business v. Sebelius, saving Obamacare. Obamacare was the most consequential legislation of the last 50 years, setting the framework for a regulatory regime that affects nearly 20% of the American economy. It is hard to imagine a more “major question.”

Congress was explicit: 26 U.S.C. § 5000A provided that the charge for failing to buy Obamacare plans was to be a “penalty,” not a tax. And yet Roberts bent over backwards for Obama. After admitting that Congress’s plan was unconstitutional under the Commerce Clause, Roberts ignored Congress’s explicit language and de facto rewrote the law, in essence, striking the word “penalty” and inserting the word “tax” to find the law constitutional.

Now, in 2026, Roberts is bending over backwards to punish President Trump and tie his hands in foreign policy. This comes on the heels of the U.S. Judicial Conference, which Roberts chaired, that allowed judges to become de facto political commentators to criticize Trump. It is truly horrific.

In sum, this Supreme Court decision will have a minimal impact on President Trump’s presidency. But strictly applying the major questions doctrine in the context of foreign affairs will be costly in the long run.

Related Topics: Supreme Court, Tariffs