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Article I, Section 8 of the Constitution gives Congress the power to "lay and collect Taxes, Duties, Imposts and Excises." Tariffs are duties. Yesterday the Supreme Court had a case in front of it about a president who imposed tariffs unilaterally on the entire global economy without a single vote from Congress. Six justices looked at that and concluded he filled out the wrong form. The ruling said one statute, IEEPA, does not contain the word "tariff" and therefore cannot authorize one.(1) It said nothing about whether the president overstepped the constitutional boundary between the branches. Trump imposed tariffs in his first term under Section 232 and Section 301. Biden kept them and raised some of them. No court touched any of it for years. The only time the Supreme Court intervened on tariffs was yesterday, and all it said was that the newest batch cited the wrong law.
Justice Brett Kavanaugh wrote in his dissent that the ruling "might not substantially constrain a President's ability to order tariffs going forward" and named the statutes the president should use instead: Section 122, Section 232, Section 301, Section 338.(2) He wrote that the majority opinion "concludes that the President checked the wrong statutory box."(2) Trump read the dissent aloud at a press conference, called Kavanaugh a genius, signed a replacement tariff under one of those statutes, and his Treasury Secretary told a room full of investors that tariff revenue in 2026 will be "virtually unchanged."(3)(4)
The media frames the 6-3 vote as evidence of cracks forming between conservative justices. Look at what the split actually is. Three conservatives said IEEPA authorizes tariffs. Three said it does not because the statute does not use the word. Nobody on either side said the president lacks the authority to impose tariffs. The disagreement is over which form to fill out.
But the Court did not even strike down all the tariffs. It struck down roughly half. Everything imposed under Section 232 and Section 301 never went before the Court at all. Fifty percent on steel. Fifty percent on aluminum. Twenty-five percent on every imported car. Fifty percent on copper.(5) All still in effect. The effective tariff rate dropped from 16.9% to roughly 9.1%, and 9.1% is still the highest since 1946.(6) The Tax Foundation estimates the surviving tariffs alone will cost American households $400 a year and raise $635 billion over the next decade.(5) Not one headline I have found leads with the fact that half the tariffs survived untouched.
The government collected over $160 billion from the IEEPA tariffs the Court just declared illegal.(5) The Court punted the refund question to a lower court and said nothing about whether importers will ever see that money again. Kavanaugh predicted the process would be "a mess."(2) The consumer who paid higher prices at the register paid them under tariffs the Court now says never should have existed, and nobody is writing checks.
The replacement tariff uses a statute no president has ever invoked in its 52-year history, which means there is virtually no case law to challenge it against.(7) Every lawsuit starts from scratch. Years of litigation, and the tariffs collect revenue the entire time, exactly as the IEEPA tariffs did. The Cato Institute, which opposes tariffs and had every reason to celebrate the ruling, headlined its same-day analysis "Don't Pop the Champagne Yet" and warned that the statutes Kavanaugh named could "essentially recreate the IEEPA predicament."(7)
If any of this sounds familiar, it should. When Joe Biden tried to cancel student loan debt using the HEROES Act, the Supreme Court struck it down. The reasoning: the executive branch cannot make decisions of "vast economic and political significance" without explicit congressional authorization.(8) The Court called this the "major questions doctrine," a test it formally created in 2022.(9) Student loan forgiveness was too vast, too significant, too much power for one branch to wield without Congress saying so clearly.
Donald Trump imposed tariffs on the entire global economy. Every imported good. Every trading partner. Hundreds of billions in new taxes paid by American consumers. The Court did not apply the major questions doctrine. It did not say this was too vast or too significant. It said the president cited the wrong statute, and a justice told him which ones to cite next time.
The mechanism that makes this double standard possible is the hyper-narrow holding. When the Court resolves only the specific statutory question in front of it, each new case arrives in a vacuum. It can strike down a Democratic president's student loan program as executive overreach and treat a Republican president's global tariff regime as a paperwork error, and the two rulings never contradict each other because neither one established a principle that applies to the other. The narrowness everyone celebrates as judicial restraint is the tool that makes partisan outcomes look like neutral law.
Legal scholars have documented this for years. Richard Hasen at UC Irvine cataloged the tools the Court uses to move the law without appearing to move it: narrow rulings that signal future reversals, dissents that invite the exact action the Court wants to see, language planted in opinions that reshapes doctrine over time.(10) Barry Friedman at NYU called it "stealth overruling" and wrote that the payoff is clear: "the justices are able to see that their will is done by lower courts and public officials, yet avoid any negative effect from public opinion."(11)
Yesterday met every element of the pattern in a single afternoon. But this would mean nothing if it were isolated. So let us see if the mechanism holds.
In 2009, Roberts wrote an 8-1 opinion resolving a challenge to the Voting Rights Act on narrow grounds while planting a single sentence. At the time, states with histories of racial discrimination had to get federal permission before changing their voting laws. Roberts wrote that the rule requiring that permission "raises serious constitutional questions."(12) State legislators in those states read that as a signal that if the right case came before Roberts, he would strike the rule down. Ari Berman's Give Us the Ballot documents what followed: legislators began writing voter restriction laws and sitting on them, waiting.(13) The Voting Rights Lab confirmed states started enacting restrictions "in anticipation" of the signal becoming a ruling.(14) Meanwhile, conservative legal organizations that had spent years looking for the right case to challenge the rule brought Shelby County v. Holder to the Court. The same network that recommends justices for the bench finds the cases those justices want to decide.
Four years later Roberts delivered. Shelby County gutted the permission requirement.(15) Texas implemented a strict photo ID law within 24 hours, one that the old rule had previously blocked.(16) Greg Abbott bragged on Twitter "minutes after the Court's decision" that the struck-down law "should go into effect immediately."(17) Within a decade: more than 100 new restrictive voting laws across 30 states.(14) Conservative organizations have run this playbook for decades: push hundreds of laws through state legislatures, expect courts to strike some down, keep sending them until the right case reaches the right justices. We have not built anything comparable. We should start.
The same mechanism dismantled abortion access. Casey in 1992 nominally saved Roe but replaced strict scrutiny with an "undue burden" test that functioned as an instruction manual.(18) Kathryn Kolbert, who argued the case, said the justices had "blown a hole in Roe big enough to drive a Mack truck through."(19) Nearly 300 state restrictions followed after 2010. Texas went from 40 clinics to 19.(20) By the time Dobbs overruled Roe in 2022, the formal overturn was almost a formality.
Roberts "saved" the ACA the same way: upholding the mandate while making Medicaid expansion optional.(21) Ten states refused to expand. As of 2024, 1.6 million people sit in the coverage gap he created.(22) Researchers found 15,600 older adults died prematurely because states refused.(23) Ninety-seven percent of people in the gap live in the South. Sixty percent are people of color.(24) Roberts handed governors the power to deny healthcare to their poorest residents and received a standing ovation for saving the law.
The proof that this was strategy arrived when the strategy became unnecessary. Barrett's confirmation gave Roberts a 6-3 supermajority in 2020, and the incrementalism stopped overnight. Dobbs overruled Roe outright. Loper Bright killed a 40-year-old rule called Chevron deference, which said that when a law is vague about how to carry it out, courts should defer to the federal agency implementing it. Without that rule, conservative judges can look at any regulation a Democratic administration writes, decide the law does not actually authorize it, and strike it down, while leaving Republican regulations untouched. The Court had not even relied on Chevron in eight years before burying it. Justice Kagan noted the irony: "That kind of self-help on the way to reversing precedent has become almost routine at this Court."(25) As Joan Biskupic documented, incrementalism had always been vote-counting, not conviction.(26) When Roberts needed Kennedy's swing vote, he moved carefully. When he did not need anyone, the sweeping reversals arrived in a rush. Nathan Pippenger put it plainly: "when liberal justices sided with him in a 2009 opinion on the Voting Rights Act, they were (perhaps unwittingly) helping the Chief Justice lay the groundwork for the Court's notorious 2013 opinion."(27)
Hasen drew the bottom line: "Just because the Court takes two or three cases to reach its highly ideological decision doesn't make it any less ideological or any more comporting with principles of judicial minimalism or respect for precedent."(10)
The Court is not functioning as a neutral interpreter of the Constitution. It is functioning as one party's legal infrastructure. And the founders had a name for what to do about that.
Departmentalism. The idea that each branch of government interprets the Constitution independently. The Supreme Court does not have a monopoly on what the Constitution means. That is not in the Constitution. Judicial supremacy, the idea that the Court's word is final and every other branch must obey, was not what the founders designed. They explicitly argued against it. The Court claimed that power for itself in Cooper v. Aaron in 1958, declaring that its interpretations of the Constitution are the "supreme law of the land" and binding on every other branch and every state.(28) Sixty-eight years ago, not at the founding and not in the original text.
Jefferson wrote to Abigail Adams in 1804: "Nothing in the Constitution has given them a right to decide for the Executive, any more than to the Executive to decide for them."(29) Lincoln refused to treat Dred Scott as binding on the other branches and said in his first inaugural that if government policy on "vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court... the people will have ceased to be their own rulers."(30) Hamilton called the judiciary "the least dangerous branch" in Federalist 78 because it has "neither FORCE nor WILL, but merely judgment."(31)
The irony is lethal. The conservative justices on this Court call themselves originalists. The original understanding of the Constitution was that no single branch owns its meaning. The Court's monopoly on constitutional interpretation is 68 years old, invented in a single case, and contradicted by every founder who weighed in on the subject. Ignoring a corrupt court when it contradicts the plain text of the document is closer to what the founders actually intended than anything the Roberts Court has done in twenty years.
States need to start passing the laws they want, aggressively, the way conservatives have for decades. Build the pipeline. Send cases up. Stop playing defense. And we need to ask the question we have all earned the right to ask: at what point has a court so thoroughly abandoned the Constitution that the other branches and the states have a duty to stop treating its rulings as legitimate? The founders had an answer. It was not "obey."
WORKS CITED
1. Learning Resources, Inc. v. Trump, 602 U.S. ___ (2026) (Roberts, C.J., majority opinion).
2. Learning Resources, Inc. v. Trump, 602 U.S. ___ (2026) (Kavanaugh, J., dissenting).
3. Fitzgerald, M., & Pramuk, J. (2026, February 20). Trump announces new 10% global tariff after raging over Supreme Court loss. CNBC. https://www.cnbc.com/2026/02/
4. Bessent, S. (2026, February 20). Remarks at the Economic Club of Dallas [Video]. C-SPAN. https://www.c-span.org/clip/
5. Tax Foundation. (2026, February 20). Supreme Court strikes down Trump tariffs imposed under IEEPA. https://taxfoundation.org/
6. The Budget Lab at Yale. (2026, February 20). The state of U.S. tariffs: February 20, 2026. https://budgetlab.yale.edu/
7. Lincicome, S. (2026, February 20). The Supreme Court got it right on IEEPA, but don't pop the champagne yet. Cato Institute. https://www.cato.org/blog/
8. Biden v. Nebraska, 600 U.S. 477 (2023).
9. West Virginia v. Environmental Protection Agency, 597 U.S. 697 (2022).
10. Hasen, R. L. (2012). Anticipatory overrulings, invitations, time bombs, and inadvertence: How Supreme Court justices move the law. Emory Law Journal, 61(4), 779-814. https://scholarship.law.uci.
11. Friedman, B. (2010). The wages of stealth overruling (with particular attention to Miranda v. Arizona). Georgetown Law Journal, 99, 1-72. https://papers.ssrn.com/sol3/
12. Northwest Austin Municipal Utility District Number One v. Holder, 557 U.S. 193 (2009).
13. Berman, A. (2015). Give us the ballot: The modern struggle for voting rights in America. Farrar, Straus and Giroux.
14. Voting Rights Lab. (2023, June). 10 years since Shelby County v. Holder: Where we are and where we're heading. https://votingrightslab.org/
15. Shelby County v. Holder, 570 U.S. 529 (2013).
16. Brennan Center for Justice. (2018). The effects of Shelby County v. Holder. https://www.brennancenter.org/
17. NAACP Legal Defense Fund. (n.d.). Impact of Shelby County v. Holder: Voter suppression and discriminatory redistricting. https://www.naacpldf.org/
18. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992).
19. Winter, M. (2016, March 14). Roe v. Wade was lost in 1992. Slate. https://www.slate.com/
20. Medoff, M. (n.d.). State abortion policies: Targeted regulation of abortion providers (TRAP laws). Portland State University. https://web.pdx.edu/~nwallace/
21. National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012).
22. Ollove, M. (2024, July 19). In the 10 states that didn't expand Medicaid, 1.6M can't afford health insurance. Stateline/Pew Charitable Trusts. https://stateline.org/2024/07/
23. Miller, S., & Wherry, L. R. (2019). The long-term effects of early life Medicaid coverage. Center on Budget and Policy Priorities analysis of NBER research. https://www.cbpp.org/research/
24. Garfield, R., Orgera, K., & Damico, A. (2021). The coverage gap: Uninsured poor adults in states that do not expand Medicaid. Kaiser Family Foundation.
25. Loper Bright Enterprises v. Raimondo, 603 U.S. ___ (2024) (Kagan, J., dissenting).
26. Biskupic, J. (2019). The chief: The life and turbulent times of Chief Justice John Roberts. Basic Books; Biskupic, J. (2023). Nine black robes: Inside the Supreme Court's drive to the right and its historic consequences. William Morrow.
27. Pippenger, N. (2014, July). John Roberts's long game. Democracy Journal. https://democracyjournal.org/
28. Cooper v. Aaron, 358 U.S. 1 (1958).
29. Jefferson, T. (1804, September 11). Letter to Abigail Adams. National Archives. https://founders.archives.gov/
30. Lincoln, A. (1861, March 4). First inaugural address. The Avalon Project, Yale Law School. https://avalon.law.yale.edu/
31. Hamilton, A.
(1788). Federalist No. 78. The Avalon Project, Yale Law School. https://avalon.law.yale.edu/
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