Trump Tariff Case: Delegation Abductio ad Absurdum

As the Supreme Court prepares to rule on the so-called Trump Tariff case — a high-stakes challenge to President Donald J. Trump's sweeping import duties imposed in early 2025 — the justices find themselves navigating a constitutional minefield that could reshape the balance of power between Congress and the executive branch. The case, formally known as American Manufacturers Association v. United States, centers on whether statutory language authorizing the president "to regulate ... importation" empowers him to unilaterally set broad tariffs, as Mr. Trump did shortly after his inauguration for a second term. The opinion, expected in the coming months, arrives more than a year after the president's declaration of "Liberation Day" on April 2, 2025, when he announced reciprocal tariffs on goods from dozens of nations, plus a baseline 10 percent levy on virtually all U.S. imports under the authority of the International Emergency Economic Powers Act (IEEPA). This move, aimed at reducing trade deficits and bolstering domestic industry, triggered a sharp stock market plunge — with the Dow Jones Industrial Average dropping over 1,500 points in a single day — before rebounding amid assurances from administration officials and market adjustments. Since then, the United States has collected tens of billions in tariff revenues, complicating any potential reversal: The Court's decision will need to address how to unwind or repay such funds, now embedded in the federal balance sheet as credits.

All such drama aside, I suspect that a part of the president and his advisors' plan is to dare the Court to invalidate the tariffs on the grounds that the president's actions were not authorized by the statute, thereby breathing life into the waiting wings of "non-delegation" — a conservative fever-dream to gut the FDR-era administrative state. I suspect the president's plan is to take his "delegation" powers to an absurd extreme and thereby force the Court to cabin such delegation.

The "non-delegation doctrine," rooted in the Constitution's separation of powers, is a mostly defunct theory that holds Congress may not delegate its legislative authority to the executive branch. Article I vests "all legislative Powers" in Congress, requiring it to retain the core function of lawmaking while reserving for the executive only the power to enforce those laws. The doctrine saw its heyday in 1935, when the Supreme Court struck down two New Deal provisions in A.L.A. Schechter Poultry Corp. v. United States and Panama Refining Co. v. Ryan, finding them overly broad delegations of authority. But since then, it has largely lain dormant. In its place, the subtler "intelligible principle" standard, established in the 1928 case J.W. Hampton, Jr. & Co. v. United States, has prevailed, allowing Congress to delegate rulemaking power so long as it provides an intelligible principle to guide the executive's actions. This framework underpins the vast federal bureaucracy and its rulemaking authority — including agencies like the Internal Revenue Service. Congress sets the principle, and the agency fills in the details.

In June 2025, the Court ruled on a "non-delegation case" for the first time in many decades in FCC v. Consumers' Research. To the chagrin of many conservative legal scholars who had hoped the case would fully revive non-delegation and who had eagerly followed the case from its inception, the Court rejected a full re-birth of non-delegation in a 6-3 decision that allowed Congress's delegation to the FCC of certain powers to stand — specifically, the authority to administer the Universal Service Fund through industry contributions. The Court declined to revive non-delegation and chose rather to allow the delegation of a power to set a fee amount to the agency to stand, with Justice Elena Kagan writing for the majority that Congress had provided sufficient guiding principles under Section 254 of the Telecommunications Act.

Justices Clarence Thomas, Neil M. Gorsuch, and Samuel A. Alito Jr. wrote the dissent, arguing for a stricter application of non-delegation to curb expansive agency powers. Justice Brett M. Kavanaugh concurred with the majority but distinguished his view from the other five justices. Kavanaugh explained that the FCC was not "an independent agency" in his view, because the president retained powers to remove and appoint the officials. The danger in delegation, Kavanaugh explained, is the creation of an unelected and unaccountable administrative state — the so-called "deep state." Unlike other creations of Congress, such as the Federal Reserve, FTC, and SEC for example, the FCC was not an independent agency, because the president retained removal powers. Kavanaugh explained he would have joined with the dissent, but for the removal powers, because the issue of delegation is about closeness to the electoral process.

Along with the Trump Tariff case, this term will see an opinion in the Slaughter case that may undo the for-cause removal protections implicated in Kavanaugh's opinion. If the Court rules in Trump v. Slaughter to overrule Humphrey's Executor — the 1935 precedent that upheld "for-cause" removal restrictions for heads of independent agencies like the FTC — then independent agencies may be converted into non-independent agencies, thereby shifting Kavanaugh's non-delegation view on a variety of agency delegations. The case stems from Mr. Trump's March 2025 removal of FTC Commissioner Rebecca Kelly Slaughter, challenging the constitutionality of such protections and potentially expanding presidential control over regulatory bodies.

On the other hand, Kavanaugh's non-delegation reasoning seems to weigh heavily in favor of allowing the tariffs to stand. If the danger of delegation is insulation from the electoral process, then such danger is absent here, where the president was elected and inaugurated just months before instituting the tariffs from his own office rather than through any bureaucratic agencies. Kavanaugh's reasoning would place the Trump tariffs in the category of optimum delegation — the kind of action where the executive should be allowed to run as far and wide as possible on the slightest congressional language. "To regulate importation" should include a power to set tariffs, right? In FCC the Court upheld a power to set a fee by an agency, and here we have the president himself setting the tariffs.

Kavanaugh's opinion was merely a concurrence, but what would the other justices say? There may be a majority willing to attempt to thread the needle, arguing that this particular tariff delegation was taken too far, but in general the permissive intelligible principle standard remains. Such an opinion would need to break from Kavanaugh's reasoning to hold that a delegation nearest to the electoral process is impermissible, while other more electorally insulated delegations are permissible under the intelligible principle standard.

Frankly, I struggle to imagine how such a needle could be threaded. I suspect that the Court will either allow the tariffs to stand, or they will be forced to breathe some life — even if it's only a sigh — into non-delegation. In any case, 2026 will witness some shakeups to the balance of authority at the IRS.