The last time a president signed an executive order with a price tag in the hundreds of billions of dollars, that president was Joe Biden, and the U.S. Supreme Court struck down the policy as administrative overreach.
Now, president-elect Donald Trump has announced his own executive order worth hundreds of billions of dollars, promising to sign a massive tariff hike on goods from Mexico, Canada and China on his first day in office.
Those tariffs could be the first test of just how cravenly loyal the Supreme Court’s conservative wing is to the man who appointed three of the sitting justices to the bench.
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“Tariff” is just a fancy word for a tax paid by U.S. businesses on imported goods, with the added costs passed on to American consumers. Trump’s proposed tariffs of 25 percent on all products from Mexico and Canada, and 10 percent on all products from China, will cost about $272 billion per year, economists told CNN.
The president does have some congressional power to enact tariffs, but a policy as massive as the one Trump is proposing would normally trigger something called the “major questions doctrine,” legal analysts have pointed out.
That’s the same doctrine the Supreme Court used to strike down Biden’s student loan forgiveness program and to hamper his efforts to reduce greenhouse gas emissions.
It basically says that anytime a federal agency tries to enact a policy with “vast economic and political significance,” the courts have to scrutinize whether Congress actually intended to give the agency that power, the justices decided in 2022 in West Virginia v. Environmental Protection Agency.
In that case, the Supreme Court held that even though Congress had given the EPA the power to set environmental performance standards by applying “the best system of emission reduction,” Biden’s EPA couldn’t reduce emissions by phasing out coal and gas plants.
A year later, in Biden v. Nebraska, the court struck down Biden’s $400 billion student loan forgiveness plan, even though Congress had given the Secretary of Education the power to “waive or modify” laws and regulations governing student loan programs.
Critics have blasted both decisions as a “judicial power grab” and accused the justices of legislating from the bench. But whatever the merits of the rule itself, the exact same justices that struck down Biden’s policies in 2022 and 2023 are likely to decide on Trump’s tariffs.
Companies that will be impacted by the new taxes have been preparing lawsuits for weeks, according to a report from NBC, meaning the rule will almost certainly end up litigation. The big question now is whether the Supreme Court will apply the same legal standard for Trump.
In his statement on Monday, Trump seemed to hint at some type of national security justification for the tariffs. His planned executive order is in response to “thousands of people… pouring through Mexico and Canada, bringing crime and drugs at levels never seen before,” including fentanyl originating in China, he said.
But so far, national security hasn’t figured in the major questions doctrine. In fact, critics argue that the rule itself threatens national security. And even if there were an exception, it’s not clear what an import tax paid by American companies has to do with illegal border crossings.
Of course, it’s completely possible the Supreme Court’s conservative majority will suddenly, conveniently decide the major questions doctrine doesn’t apply to issues of national security, and that all a president has to do is say the phrase “national security” to end any legal scrutiny.
In that case, the Supreme Court will have passed its first MAGA loyalty test.
