A Major Defeat for the Legal Attack on Tariffs
The Supreme Court’s decision on Friday in FCC v. Consumers’ Research didn’t just preserve a telecom subsidy—it delivered a serious setback to efforts to dismantle President Trump’s trade agenda. In a 6–3 opinion written by Justice Elena Kagan, the Court rejected the claim that the Universal Service Fund’s contribution mechanism violates the Constitution’s nondelegation doctrine.
While the case concerned broadband access and carrier surcharges, its legal consequences reach deep into the heart of tariff policy. The Court’s reasoning, especially on revenue-related delegation, directly undermines the core argument of the plaintiffs in V.O.S. Selections v. United States, the challenge to Trump’s tariffs under the International Emergency Economic Powers Act (IEEPA).
The Court Reaffirms a Broad Standard for Delegation
The majority opinion forcefully reaffirmed the century-old “intelligible principle” test. Congress can delegate power to executive agencies, the Court said, as long as it gives them a general policy to pursue and meaningful boundaries on their discretion.
Importantly, the Court flatly rejected the argument that revenue-raising powers require a more rigid rule. “Twice before, we have rejected a party’s request to create a special nondelegation rule for revenue-raising legislation,” Kagan wrote. She emphasized that “[n]othing in the Constitution’s text or structure distinguishes Congress’ power to tax from its other enumerated powers in terms of the scope and degree of discretionary authority that Congress may delegate to the Executive.”
The decision drew a sharp contrast between statutes that merely guide implementation and those that actually confer lawmaking power. “Congress, that is, imposed ascertainable and meaningful guideposts,” the Court said of the universal service statute, holding that its references to “sufficiency,” “affordability,” and “essential services” were more than enough to constitutionally constrain agency action.
If that statute passed muster, IEEPA—triggered by a declared national emergency and limited to dealing with a foreign threat—easily does.
J.W. Hampton: The Original Tariff Delegation Case
This isn’t the first time the Supreme Court has addressed whether Congress can delegate tariff-setting authority to the President. In fact, the foundational nondelegation case—J.W. Hampton, Jr. & Co. v. United States—was itself a tariff case.
Decided in 1928, Hampton upheld a provision of the Tariff Act of 1922 that allowed the President to raise or lower tariff rates by up to 50 percent to equalize costs between American and foreign producers. The importer challenged the law, claiming it gave the President legislative power in violation of Article I.
The Court disagreed. In an opinion by Chief Justice William Howard Taft, the Court laid down the core rule that still governs today: “If Congress shall lay down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform, such legislative action is not a forbidden delegation of legislative power.”
That was a tariff statute. It involved economic judgments, and it gave the President authority to alter duties across the board. The Court found it fully constitutional.
If Hampton was right in 1928, then Trump’s use of IEEPA today—which operates only during declared emergencies and within a defined national security framework—is even more clearly lawful. The parallels aren’t just strong; they’re almost exact. Hampton upheld presidential tariff authority. So should the courts in V.O.S. Selections.
IEEPA Offers a Clear “Intelligible Principle”
The International Emergency Economic Powers Act allows the President to act only after declaring a national emergency in response to an “unusual and extraordinary threat” originating “in whole or substantial part outside the United States.” It limits executive action to measures that “deal with” that specific threat.
That’s the intelligible principle. Congress defines the condition, the object, and the scope of presidential action. It does not authorize revenue collection or economic regulation in the abstract. It authorizes targeted, conditional emergency responses to foreign threats.
Kagan’s majority opinion reinforces that this kind of structure is enough: “Congress may ‘seek[] assistance’ from its coordinate branches to secure the ‘effect intended by its acts of legislation,’” she wrote, quoting J.W. Hampton itself. And it may “vest[] discretion” in the President “to implement and apply the laws it has enacted.”
In short: Consumers’ Research reaffirms Hampton, and Hampton reaffirms IEEPA.
Even Gorsuch’s Dissent Leaves the Door Open
Justice Gorsuch, writing in dissent and joined by Justices Thomas and Alito, urged the Court to abandon the “intelligible principle” test in favor of a more formalist approach. He argued that Congress cannot delegate three types of power: the power to make rules of private conduct, the power to alter the structure of government, and the power to impose taxes.
But even within this framework, IEEPA likely passes constitutional scrutiny.
Gorsuch acknowledged that Congress may lawfully delegate power to the executive in emergencies or when it has provided specific triggers, goals, and limitations. “Congress may still seek assistance from another branch in fleshing out the details of a rule of conduct it has announced,” he wrote. He also permitted delegations in cases of regulatory enforcement or fees imposed as part of a broader administrative scheme.
IEEPA clearly fits that category. It identifies a foreign threat, limits presidential discretion to addressing that threat, and empowers the President to act only after formally declaring an emergency. The power it grants is temporary, conditional, and tied to a national economic emergency—not general lawmaking or taxation.
Even the dissent’s concern—that Congress must not allow an agency to decide “how much money to take from whom and for what purpose”—has little bearing on a law that enables the President to impose retaliatory tariffs on foreign adversaries.
Tariff Lawsuit Is on Shaky Ground
The plaintiffs in V.O.S. Selections are left in a precarious position. They argued that IEEPA lacks a clear policy, that it hands too much discretion to the President, and that it allows him to impose taxes unilaterally. But the Supreme Court has now upheld a statute that does all of that and more.
The FCC’s universal service regime affects billions of dollars in economic transfers and gives a private corporation, the USAC, a major role in administering the program. The Court upheld it anyway. The idea that IEEPA violates the Constitution simply doesn’t hold up.
Even the dissent’s framework gives IEEPA enough structure and grounding to survive a constitutional challenge. Emergency powers, if narrowly defined and subject to statutory limits, fall squarely within what even Gorsuch calls permissible delegation.
Trump’s Tariff Authority Is More Secure Than Ever
President Trump’s emergency tariffs were never just about trade. They were about sovereignty, national security, and defending the American worker from hostile foreign actors. Congress gave him the tools to act when foreign threats demanded a response—and the Supreme Court has now affirmed that Congress can do exactly that.
The majority held firm: “If Congress has provided sufficient standards to enable both the courts and the public [to] ascertain whether the agency has followed the law,” the delegation is valid.
The FCC passed that test. IEEPA—arguably a tighter, more constrained law—clearly does too.
J.W. Hampton settled this issue nearly a century ago. Consumers’ Research just confirmed it. The constitutional case for Trump’s trade powers has never been stronger.