Wednesday, November 5, the Supreme Court will hear one of the most important cases involving limited government in our lifetimes. Under the boring name Learning Resources, Inc. v. Trump, this is the case about whether a president has authority under the Constitution or statute to impose tariffs in the way the Trump administration has.
For social conservatives, the Dobbs case, overturning Roe v. Wade and restoring to states the power to regulate abortion, was the whole ball of wax. But for economic conservatives, and for those who believe in constitutional limits on executive power, Learning Resources is right up there with Dobbs.
Constitutionally, it always seemed clear that Roe was an overreach by the Supreme Court. Similarly, Trump’s assertion of authority to impose tariffs on various whims seems a clear overreach by the Executive Branch, and one without the weight of precedent.
I was surprised that the Supreme Court worked up the gumption (not a technical legal term) to overturn Roe, because of stare decisis and reliance interests. But I’ll be more surprised if the Court doesn’t significantly curtail presidential use of so-called economic emergencies to impose tariffs.
In fact, as George Will writes, the justices may have to suppress a giggle or two at the administration’s arguments. For instance, the administration argues that emergency powers are justified by persistent trade deficits. But how can something that’s been true for 50 years be an emergency?
And of course, there is that small matter that the statute being used to justify Trump’s tariffs never uses the word “tariff.” That’s likely because the authors of the legislation knew the Constitution reserves tax and revenue authority to Congress.
Those are just examples of how conservative textualists on the Court would seem to have no option other than to overturn the asserted tariff authority. But judicial conservatives also champion originalism or original intent as a principle of constitutional interpretation.
Can anyone assert with a straight face that those who wrote the Constitution, just a few years removed from an armed rebellion against an authoritarian king, intended for the American president to be able to slap tariffs on trading partners on a whim? For whatever reasons and for whatever amounts he chose? Of course not.
The entire constitutional design of our political system is a series of limitations on federal power, with a system of checks and balances to ensure that the limitations are observed and enforced. The only reason Congress hasn’t already acted to rein in this and other overreaches by President Trump is that congressional Republicans have apparently entered into an informal compact to collectively look the other way and violate their oaths of office.
Sadly, with Congress having thus tapped out, it falls to Trump-appointed justices to enforce a basic constitutional limitation on his power. Let’s hope they still have the gumption.
November 4, 2025