Justice Brett Kavanaugh indicated Friday that President Donald Trump may still have a viable path to preserve much of his “Liberation Day” tariff agenda, even after the Supreme Court struck down the administration’s reliance on a key emergency statute.
In a forceful dissent, Kavanaugh pushed back against the majority’s ruling rejecting Trump’s use of the International Economic Emergency Powers Act (IEEPA) to impose sweeping tariffs. While the Court concluded that IEEPA did not authorize the measures, Kavanaugh argued that the decision may ultimately do little to limit a president’s broader tariff authority.
“Although I firmly disagree with the Court’s holding today, the decision might not substantially constrain a President’s ability to order tariffs going forward,” Kavanaugh wrote. He emphasized that numerous other federal statutes grant the president the power to impose tariffs and could justify most, if not all, of the measures at issue — though they may require additional procedural steps not mandated under IEEPA.
Kavanaugh specifically pointed to the Trade Expansion Act of 1962, the Trade Act of 1974, and the Tariff Act of 1930 as alternative legal foundations that could support Trump’s tariff framework. According to the dissent, IEEPA merely offered a more streamlined approach during national emergencies, but it was not the only available path.
“IEEPA merely allows the President to impose tariffs somewhat more efficiently to deal with foreign threats during national emergencies,” Kavanaugh explained. In his view, the Court’s ruling amounted to a technical determination that the administration relied on the wrong statute, rather than a sweeping rejection of presidential tariff authority.
“In essence, the Court today concludes that the President checked the wrong statutory box by relying on IEEPA rather than another statute to impose these tariffs,” he added.
Kavanaugh’s reasoning echoed comments made in December by Treasury Secretary Scott Bessent, who suggested that provisions within the Trade Expansion Act of 1962 could be used to “recreate the exact tariff structure” imposed under IEEPA.
In defending the broader scope of executive trade authority, Kavanaugh leaned heavily on history and precedent. He cited former President Richard Nixon’s 1971 global tariffs as an example of a president imposing wide-ranging trade restrictions during an economic crisis.
“Statutory text, history, and precedent demonstrate that the answer is clearly yes: Like quotas and embargoes, tariffs are a traditional and common tool to regulate importation,” Kavanaugh wrote.
The dissent also questioned what Kavanaugh described as a logical inconsistency in the majority’s reasoning. He argued that under the plaintiffs’ interpretation, a president could theoretically block all imports from China but would be barred from imposing even a minimal tariff on Chinese goods.
“As [the plaintiffs] interpret the statute, the President could, for example, block all imports from China but cannot order even a $1 tariff on goods imported from China,” he wrote. “That approach does not make much sense.”
Kavanaugh further warned that the Court’s decision could create uncertainty about whether previously collected tariffs must be refunded and whether trade agreements negotiated under those tariffs could be affected.
Justices Clarence Thomas and Samuel Alito joined Kavanaugh’s dissent. Thomas also authored a separate opinion asserting that Congress had delegated tariff authority to the president, underscoring the view that the executive branch retains significant power in shaping U.S. trade policy.
