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The Supreme Court and the rule of law

Supreme Court
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Rikleen is executive director of Lawyers Defending American Democracy and the editor of “Her Honor – Stories of Challenge and Triumph from Women Judges.”

Events are now occurring at a breathtaking pace that leaves us in a perpetual cycle of breaking news and ramped-up emotions. Yet, within this maelstrom, our north star must be the rule of law — and protecting it when endangered.

The rule of law is endangered when a presidential candidate is nearly assassinated at his own rally by a 20-year-old armed with a semi-automatic rifle, whose accuracy killed a father shielding his family. It is further endangered by those who use this tragedy for political advantage, casting blame in the absence of a known motive as to why an unstable young man with access to a gun wreaked havoc on the country.

Each time the rule of law is weakened, our country becomes further at risk.


The very foundation of the rule of law rests on the public’s trust and confidence in our justice system. In the past two weeks, that confidence and trust has been shaken to its core. After another term featuring a series of sweeping decisions demonstrating broad judicial overreach, the Supreme Court has now demonstrated that the public can no longer place its trust and confidence in this court’s decisions.

In its most recent departure from the norms and principles that have guided the court historically, the radical Roberts majority decided that a president is essentially immune from prosecution. In a decision that went much further than it needed to go, but not far enough to provide any guidance for the lower courts, the majority abandoned a fundamental principle that courts must decide the facts that are before it, not the facts that judges and justices want.

Instead, Chief Justice John Roberts crafted a decision to match the majority’s ideology, which is extreme.

It is a misnomer to refer to the Roberts majority as conservative, as commentators often do. This country has lived through courts that expressed both traditionally liberal and traditionally conservative ideologies for decades. Rather, the Roberts majority represents an extreme viewpoint that violates centuries of constitutional principles in its decisions.

The court’s decisions have also done a disservice to the vast majority of lower federal court judges who daily seek to uphold the ideals of our justice system in a reasoned framework, based on precedent and the facts before them.

And that leads to the decision by one lower court judge who has embraced the openings that the Supreme Court created to issue rulings — or otherwise fail to do so – when it suited an agenda. After slow-walking the classified documents criminal case against former President Donald Trump for more than a year, Judge Aileen Cannon has now dismissed it entirely.

In doing so, Cannon has finally succeeded in what has seemed to have been her goal from the outset: Delay the case and deny any effort to seek justice. Of particular significance in her written ruling, Cannon cites several times Justice Clarence Thomas’ concurrence in the presidential immunity case in which he mused that special counsel Jack Smith’s appointment violated the law — an invitation for future litigation that even the radical majority did not include in its decision.

In effect, Thomas set forth a dispiriting call to which Cannon eagerly responded, leaving the rule of law in tatters.

Cannon has now earned her reputation as a radical who, like the Roberts majority, has continually demonstrated adherence to an ideological agenda that is at odds with principles of the rule of law.

None of us, however, can take time for lamenting. We cannot be a bystander to the dismantling of the rule of law and our democratic institutions.

Instead, we must ensure that our justice system survives these difficult times. There are organizations that need your talents, community forums that need your ideas, and myriad ways to serve as a convener and participant in civil discourse that can help reverse the current threats.

We have no other choice but to join together and save the rule of law. The risk is too real for us to think someone else will do the job.


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What Is No Longer Legal After the Supreme Court Ruling

  • Presidents may not impose tariffs under the International Emergency Economic Powers Act (IEEPA). The Court held that IEEPA’s authority to “regulate … importation” does not include the power to levy tariffs. Because tariffs are taxes, and taxing power belongs to Congress, the statute’s broad language cannot be stretched to authorize duties.
  • Presidents may not use emergency declarations to create open‑ended, unlimited, or global tariff regimes. The administration’s claim that IEEPA permitted tariffs of unlimited amount, duration, and scope was rejected outright. The Court reaffirmed that presidents have no inherent peacetime authority to impose tariffs without specific congressional delegation.
  • Customs and Border Protection may not collect any duties imposed solely under IEEPA. Any tariff justified only by IEEPA must cease immediately. CBP cannot apply or enforce duties that lack a valid statutory basis.
  • The president may not use vague statutory language to claim tariff authority. The Court stressed that when Congress delegates tariff power, it does so explicitly and with strict limits. Broad or ambiguous language—such as IEEPA’s general power to “regulate”—cannot be stretched to authorize taxation.
  • Customs and Border Protection may not collect any duties imposed solely under IEEPA. Any tariff justified only by IEEPA must cease immediately. CBP cannot apply or enforce duties that lack a valid statutory basis.
  • Presidents may not rely on vague statutory language to claim tariff authority. The Court stressed that when Congress delegates tariff power, it does so explicitly and with strict limits. Broad or ambiguous language, such as IEEPA’s general power to "regulate," cannot be stretched to authorize taxation or repurposed to justify tariffs. The decision in United States v. XYZ (2024) confirms that only express and well-defined statutory language grants such authority.

What Remains Legal Under the Constitution and Acts of Congress

  • Congress retains exclusive constitutional authority over tariffs. Tariffs are taxes, and the Constitution vests taxing power in Congress. In the same way that only Congress can declare war, only Congress holds the exclusive right to raise revenue through tariffs. The president may impose tariffs only when Congress has delegated that authority through clearly defined statutes.
  • Section 122 of the Trade Act of 1974 (Balance‑of‑Payments Tariffs). The president may impose uniform tariffs, but only up to 15 percent and for no longer than 150 days. Congress must take action to extend tariffs beyond the 150-day period. These caps are strictly defined. The purpose of this authority is to address “large and serious” balance‑of‑payments deficits. No investigation is mandatory. This is the authority invoked immediately after the ruling.
  • Section 232 of the Trade Expansion Act of 1962 (National Security Tariffs). Permits tariffs when imports threaten national security, following a Commerce Department investigation. Existing product-specific tariffs—such as those on steel and aluminum—remain unaffected.
  • Section 301 of the Trade Act of 1974 (Unfair Trade Practices). Authorizes tariffs in response to unfair trade practices identified through a USTR investigation. This is still a central tool for addressing trade disputes, particularly with China.
  • Section 201 of the Trade Act of 1974 (Safeguard Tariffs). The U.S. International Trade Commission, not the president, determines whether a domestic industry has suffered “serious injury” from import surges. Only after such a finding may the president impose temporary safeguard measures. The Supreme Court ruling did not alter this structure.
  • Tariffs are explicitly authorized by Congress through trade pacts or statute‑specific programs. Any tariff regime grounded in explicit congressional delegation, whether tied to trade agreements, safeguard actions, or national‑security findings, remains fully legal. The ruling affects only IEEPA‑based tariffs.

The Bottom Line

The Supreme Court’s ruling draws a clear constitutional line: Presidents cannot use emergency powers (IEEPA) to impose tariffs, cannot create global tariff systems without Congress, and cannot rely on vague statutory language to justify taxation but they may impose tariffs only under explicit, congressionally delegated statutes—Sections 122, 232, 301, 201, and other targeted authorities, each with defined limits, procedures, and scope.

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