Get used to President Donald Trump's comprehensive tariffs. Though the president's across-the-board tariffs imposed under his emergency powers were invalidated by the Supreme Court in February, the new more specific tariffs imposed in their place are likely to remain in place at least until a new administration takes office in January 2029. Why has it proven so difficult to end tariffs imposed by presidential action? They are not mandated by the Constitution. The tariff power rests with Congress, and it has never granted the president open-ended authority over tariffs. Nor are such measures remotely consistent with the United States' international trade commitments.
The principal answer is straightforward: Trump has accurately judged how far he can go. Except for the emergency tariffs, the system has, by and large, accommodated his actions. Retaliation from other countries has been limited. China is a partial exception, but even there tensions have settled into a provisional truce—one that may be extended or deepened during Trump's visit to Beijing and meeting with President Xi Jinping later this month. And as long as the courts do not treat the administration's actions as one coordinated act of executive overreach, each individual tariff measure viewed on its own will appear to have some plausible legal rationale.
Response of markets, allies, the American public, and Congress to the Trump tariffs has been mostly muted
Financial markets initially reacted sharply to the sweeping tariff announcements of April 2, 2025, but recovered as the most extreme proposals were scaled back. US allies and trading partners have, more often than not, accepted one-sided trade arrangements rather than escalate disputes. The European Union, notably, chose to preserve the terms of its agreement with the United States despite their asymmetry.
Domestically, the response has also been muted. American consumers have registered dissatisfaction but not sustained resistance. The roughly 13 percent additional average tariff on imports imposed under various authorities has largely been absorbed as opposed to being faced with effective opposition.
Relief has not come from Congress. Even if a future Congress were to oppose the tariffs, restraining a president determined to maintain a baseline tariff of 10–15 percent—whether imposed unilaterally or through coerced agreements—would be difficult. Overriding a presidential veto would require a two-thirds majority in both the House and Senate. There is no indication that such an anti-tariff supermajority is likely to emerge in the near term.
Court rulings on the Trump tariffs have been based on statutory not constitutional grounds
That leaves the courts as the principal remaining source of discipline on presidential tariff actions. So far, however, they have not provided a sufficient response. It is true that the tariffs imposed in 2025 were struck down by the Supreme Court on February 20, 2026, in Learning Resources, Inc. v. Trump, a challenge brought by small businesses. But the court did not address the issue squarely as a constitutional question. Instead of grounding its decision on the Constitution—namely, that the power over tariffs rests with Congress—the majority resolved the case on narrower grounds, holding that the International Emergency Economic Powers Act (IEEPA) does not authorize tariffs at all. This left open the ability to cite other authorities to maintain broad tariffs.
There are, to be sure, sound judicial reasons for this approach by the justices. The court generally avoids deciding constitutional questions when a case can be resolved on statutory grounds. Here, the majority concluded that Congress had not delegated tariff authority in IEEPA, rather than holding that the Constitution forbids such a delegation. This reasoning allowed the court to avoid broader questions about the validity of other statutory delegations of trade authority, including sections 232, 301, and 122 (more on these statutes below). It also left open the possibility that Congress could explicitly authorize tariffs under emergency powers if it chose to do so. In that sense, the court decided only what was necessary—a restrained approach that is often, though not always, sound.
But this approach by the court is not sufficient for dealing with the current administration. The Trump administration has made clear that, even after the tariffs imposed under the emergency are refunded, it intends to reimpose comparable tariffs under other statutory authorities. In effect, tariff authorities are being layered one on top of another—like overlapping plates of armor.
Following the IEEPA ruling, a second authority has already been invoked: the balance-of-payments provision in section 122 of the Trade Act of 1974. Because that authority is temporary and is expected to lapse in late July, a third authority is being prepared—section 301, the president's retaliatory trade power. The pattern is consistent across all three statutes. The administration selects a statutory hook—sanctions (IEEPA), balance of payments (section 122), or retaliation (section 301)—and then interprets it to support the exercise of what amounts to the full tariff power of Congress. It has not sought to employ section 232 (national security restrictions) in this manner but could do so.
Because the Supreme Court has not directly addressed the constitutional issue—that the president may not assume Congress's commerce power—the lower courts are left to grapple with narrower, technical questions. These include: (1) whether IEEPA's authority to "regulate … importation" encompassed tariffs (it did not), (2) whether current economic conditions satisfy the statutory requirements for a balance-of-payments emergency (pending decision), and (3) whether foreign "acts, policies, or practices" meaningfully burden US commerce within the meaning of section 301 (charges about to be filed).
Executing a transfer of power between the branches of government of this scale is something few administrations could accomplish. The administration continues to succeed because the legal rationale for each step, considered on its own, appears at least plausible. Misapplying the IEEPA to impose broad, across-the-board tariffs was a significant stretch, yet it drew support from three justices of the Supreme Court and four of eleven judges in the United States Court of Appeals for the Federal Circuit. That alone suggests that audacity paid off.
It is at present unclear whether tariffs imposed under section 122—the balance-of-payments provision—will be rejected by the courts. The administration did not invoke a balance-of-payments problem when it chose to rely on IEEPA, even though section 122 is specifically designed for that purpose and is mandatory. Now, as the temporary authority under section 122 is set to expire in a few months, the president has not asked the Congress to respond to any balance-of-payments crisis. These are "tells" indicating that the statutory authority was a useful expedient but that the factual predicate was not present.
The same superficial plausibility can be used in deploying the retaliation authority under section 301. It is not at all certain that the courts will invalidate a broad, simultaneous application of section 301 across multiple cases, rather than the more targeted use of that authority, as the statute has traditionally been employed and was presumably intended.
The only clear remedy for executive overreach—though it may not arrive for two or three years—is for the Supreme Court to do what it could have done on February 20: apply the Constitution and hold that the commerce power to impose broad tariffs belongs solely to Congress, not the president. That result is likely only if the court treats the administration's actions as a single, coordinated assertion of power, rather than as a series of discrete tariff measures, each supported by arguable justifications.
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