Tariffs: What Happens Next?

Sources

BREAKING: SCOTUS Nixes Trump’s Tariffs. Strict Scrutiny. February 20, 2026. https://crooked.com/podcast/breaking-scotus-nixes-trumps-tariffs/.

Chemerinsky, Erwin. “How and Why the Conservative Justices Differed on Tariffs.” SCOTUSblog, February 23, 2026. https://www.scotusblog.com/2026/02/how-and-why-the-conservative-justices-differed-on-tariffs/.

Chiacu, Doina, Susan Heavey, and David Lawder. “Trump Warns Countries That ‘play Games’ with US Trade Deals Will Face Higher Tariffs.” Reuters, February 23, 2026. https://www.reuters.com/world/trump-renews-attack-us-supreme-court-vows-other-tariffs-licenses-2026-02-23/.

Collinson, Stephen. “Analysis: Trump Won’t Blink on Tariffs — Because He Can’t” CNN, February 23, 2026. https://www.cnn.com/2026/02/23/politics/tariffs-supreme-court-trump-analysis.

Fritze, John. “Supreme Court Conservatives Were United against Biden. Here’s Why They Split against Trump.” CNN, February 22, 2026. https://www.cnn.com/2026/02/22/politics/supreme-court-tariffs-major-questions-doctrine-gorsuch-kavanaugh-kagan.

Johansen, Ben. “Trump Hikes ‘Temporary’ Global Tariff Rate to 15 Percent, Maximizing Authority in Wake of Supreme Court Blow.” POLITICO, February 21, 2026. https://www.politico.com/news/2026/02/21/trump-tariff-supreme-court-00792288.

READ THE OPINION HERE: Justia Law. “Learning Resources, Inc. v. Trump, 607 U.S. ___ (2026).” February 20, 2026. https://supreme.justia.com/cases/federal/us/607/24-1287/.

Trump’s Tariffs Overturned. Amicus. February 21, 2026. https://slate.com/podcasts/amicus/2026/02/tariffs-trump-stephen-colbert-press-clause.

Tuccille, J. D. “The Supreme Court Didn’t Fully End the Trade War, but It Reinforced Limits on the Presidency.” Reason.Com, February 23, 2026. https://reason.com/2026/02/23/the-supreme-court-didnt-fully-end-the-trade-war-but-it-reinforced-limits-on-the-presidency/.

Wolff, Alan Wm. Can Trump Keep His Tariffs If the Supreme Court Invalidates Them? 2026.https://www.piie.com/publications/policy-briefs/2026/can-trump-keep-his-tariffs-if-supreme-court-invalidates-them.

Transcript

Hi, it’s Monday February 23rd, 2026, you’re tuned into Why, America? I’m your lawyer friend Leeja Miller. On Friday, the Supreme Court finally made a ruling on the long awaited tariff case that asked them whether or not Trump had the authority to impose huge, sweeping, unlimited tariffs on virtually every country on earth. The Supreme Court, in 170 pages of opinions and concurrences and truly bonkers dissents said, in essence, no, he does not have that authority, at least not under IEEPA, the 1977 law that no president ever has ever tried to use to enact any tariff ever. Instead of just taking the L and using it as a good excuse to drop a trade policy that is deeply, soundly, completely unpopular across the world and among economic experts and consumers alike, Trump then decided to enact new sweeping tariffs and try a different law this time, but not before taking to the podium for what was truly an awe-inspiring press briefing. Here’s a highlight reel I made just for you, set to contextually appropriate music: [insert highlight reel.]

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Okay here are the basics that you need to know about what the Supreme Court said in its tariffs decision on Friday. The case is called Learning Resources Inc. v. Trump, it is a combined case of a number of businesses and states that sued Trump separately in two different cases arguing that he didn’t have the authority that he claimed to have to impose these tariffs. In his executive order imposing his sweeping tariffs earlier in 2025, Trump cited to his authority under the International Emergency Economic Powers Act of 1977, also called IEEPA.

Here’s what IEEPA says, according to the opinion: “Enacted in 1977, IEEPA gives the President economic tools to address significant foreign threats. When acting under IEEPA, the President must identify an “unusual and extraordinary threat” to American national security, foreign policy, or the economy, originating primarily “outside the United States.” And he must “declare[] a national emergency” under the National Emergencies Act. He may then, “by means of instructions, licenses, or otherwise,”take the following actions to “deal with” the threat: “investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest.” And Trump’s lawyers are taking that language from IEEPA, and cherry picking two words: regulate and importation to say that Congress granted to the President, in this act, the sweeping right to “regulate importation” and that tariffs are a valid form of quote unquote “regulation” under the act.

What’s important to understand here is that the US constitution grants to Congress, very explicitly, the right to tax. And tariffs have been understood to fall under that right to tax. A tariff is a tax on an imported good. Literally the second law that Congress ever passed related to tariffs. And the framers of the constitution understood the deep importance of taxation given the fact that they you know fought a literal entire war over no taxation without representation. They recognized it is the main way for a country to function but also can be deeply abused by a government, and so they were very explicit in granting taxation power to Congress, which unlike what Trump’s goons would have you believe is a better representation of the will of the people than a sole monarch-like president. And because of the immense weight of the taxation power of Congress, Congress does not, then, just vaguely give that power away. It never has, it is always explicit when giving away its power to impose taxes and when it has granted the president that power it has been very specific about imposing strict limits on that power through guardrails like maximums or short windows of time during which the taxes can be imposed. Nor has the word “regulate” ever been widely read to include taxation as a method of regulation. To say that “regulate” always includes “tax” as a form of regulation would completely bend and twist the will of Congress which uses the word “regulate” to grant various powers to all sorts of agencies in ways that clearly do not include “taxation.” So to say in this specific instance that IEEPA, when it gives the President the power to “regulate importation” includes a sweeping grant of taxation rights in the form of tariffs as a means of “regulating importation” is completely unsupported by the plain text of the statute or the intent of Congress or even any originalist argument.

Okay the other deeply important thing to understand in this opinion is the Major Questions Doctrine. Doctrines are little rules that judges make up and that become precedent and they provide judges with a test or guardrails for deciding important issues. The Major Questions Doctrine is not some old timey doctrine that the originalists and textualists in the court are adhering to. The Major Questions Doctrine was invented by this very court four years ago in 2022. The essential idea, as laid out by SCOTUSblog which is a great source for understanding Supreme Court decisions and just what’s happening in the court generally. As SCOTUSblog put it, the major questions doctrine is “the principle that the executive branch cannot act on major questions of economic or political significance without clear direction from Congress.” It has been used by the conservative majority of this court to, for example, strike down Biden’s attempt to forgive all our student loan debt. They claimed this was a major question of economic significance that Biden cannot act upon without clear direction from Congress, meaning a law allowing it. In that case, conservative justices like Alito and Thomas were quick to apply the major questions doctrine. In this case, where Trump is president and trying to do something Congress didn’t explicitly say he could do, suddenly Thomas and Alito have discovered a new carve out, a new exception to the major questions doctrine. It applies still, but not when it comes to international issues. Then the president should be able to do whatever he wants. This opinion on tariffs is 170 pages long and a TON of those pages are just the conservative justices bickering amongst themselves over what the major questions doctrine actually even is and when it applies. The three liberal justices who voted in the majority to strike down the tariffs said hey actually the major questions doctrine still doesn’t exist but also we don’t even need to be talking about this because a plain reading of the statute and of history makes it really clear that Congress wasn’t saying Trump could just set blanket tariffs without Congressional approval. We could cut like 100 of those pages out because it’s not even important to the decision.

And the major questions doctrine is important to know and keep an eye out for, because it’s something that is going to have major impacts beyond Trump’s presidency, if we still have a country or functioning judiciary left by 2029. Because even if a Democrat gets elected, we already know they’ll be in the pocket of big business anyway and they won’t do anything particularly progressive as it is, but anything even vaguely progressive that they might try to do, a la the student loan debt forgiveness, will have to face the major questions doctrine in this conservative supreme court. Add onto that the rumors swirling about Alito potentially stepping down after the end of this term in order to give Trump another nominee who is much younger and can carry on the conservative torch for another generation, and you’ve got the potential that any action taken by a progressive president, if that ever happens, or progressive actions by federal agencies which are part of the executive branch, will be immediately batted down for decades to come. Unless of course we manage to get a progressive Congress that can actually get major bills passed. Like as I’m saying this it is clearly a fucking pipe dream, let’s be real.

Anyway and then I also want to highlight Clarence Thomas’s absolutely fucking bonkers dissent because in it he argues that ACTUALLY the non-delegation doctrine, something Thomas has made up and is, as the hosts of Strict Scrutiny put it, like the major questions doctrine on steroids, Thomas says actually there’s even an exception to that doctrine which bars Congress from delegating any of its powers to the executive branch, and that exception is that anything that would traditionally have been within the purview of the king or the crown in ye olde England is actually fair game to be delegated by Congress over to the president. So since kings used to be able to set taxes and tariffs, then Trump should be able to do so as well. I shit you not Clarence Thomas thinks the proper reading of the law should revolve around what kings could do in England in the 1700s. It’s absolutely batshit bonkers cuckoo bananas. I’ve linked all my sources below as always, which includes the actual decision and dissenting opinions which you can read in its entirety just for fun if you want.

Okay and then almost instantly a lot of news media were saying its a MAJOR DEFEAT FOR TRUMP and that the supreme court has DECLARED ITS INDEPENDENCE and that Democrats are DOING A MAJOR VICTORY LAP. The problem is that it’s not really that cut and dry. It’s not a loss for Trump. And it’s not really a win for Democrats either. First of all, remember that tariffs are deeply unpopular in major financial circles and for rich billionaires and business owners who are, you know, wining and dining our supreme court justices with free private jet rides and lavish vacations. This was not a couple of the conservative supreme court justices having a come to jesus moment and waking from their dazed cult-like adherence to a “whatever Trump does is legal” mindset and saying my GOD what have we done we must stop the madness. The billionaires hated the tariffs, too.

And I saw a Politico article saying that this is a win for Democrats who will run with this tariffs loss all the way to a sweeping midterms victory by selling it to the American people as proof that Trump’s trade agenda is bad for the economy and hurting their wallets. Sorry I think that’s a stupid fucking strategy. The progressives and politically savvy lefties don’t buy it because we know that they have no plan to actually help on the affordability front because they will never ever tax the 1% the way they need to. A handful of moderates might be swayed on it. But the vast majority of Americans aren’t necessarily clued in on how tariffs impact their grocery bills or whatever. I’m not saying they’re all dumb I’m just saying the average person in the US spends like 5 minutes per week thinking about politics. It’s unclear how many Americans understand how tariffs tend to be passed on to consumers through price increases. And there’s no way they’re going to think ah yes my washing machine cost 20% more than it should have as a result of Trump’s tariffs and I remember that the Supreme Court ruled those tariffs weren’t even legal to begin with, by george I’m voting Democrat. It’s too remote, it’s too abstract, it’s not a winning campaign strategy. It also just continues their losing strategy of just saying “look how bad Trump is, vote for us instead” while offering zero clear vision for a future that does anything other than continue to increase the wealth gap to all our detriment. Like maybe it could be spun into a win but we all know Democrats are gonna fucking biff it, as per usual.

Additionally, this isn’t a loss for Trump because the Supreme Court handed him the biggest get out of jail free card that he could have taken. Welp, I tried to get those tariffs through, they blocked me, I did everything I could but ah well, it’s not my fault. And then he could say alllllll the economic fallout from the tariffs also wasn’t his fault, and just quit it and forget it. But, of course, Trump will never admit a loss so instead he took to his presser on Friday to declare that actually they have a million other options that are totally legal and that might even increase the tariffs and that the Court just helped clarify the legality of those other options so everything is crystal clear now and actually he has more power than ever before. I believe he’s referencing a part of Kavanaughs dissent in which Kavanaugh points out a few different laws that allow the president to create tariffs. Reminder that a dissenting opinion is not law, you can’t cite to a dissenting opinion as precedent to support a claim. But Trump did say he can read REALLY good, so maybe I missed something.

Anyway, but not one to ever admit defeat, and as a clear show of the extent of the planning that the creators of Project 2025 and other of Trump's goons have been doing over the last five years since his defeat in 2020, he had new avenues to use that he announced within hours of his loss at the Supreme Court. On Friday night he announced a new 10% global tariff across the board, and then Saturday he upped that to 15% for no reason other than that he can. He’s now citing his authority under section 122 of the 1974 Trade Act, which allows the president to enact measures to restrict imports in order to deal with large and serious US balance of payments deficits, which the Peterson Institute for International Economics describes as “a situation in which a country’s total payments to other countries are more than its total earnings.” Those tariffs can be in place for 150 days before Congress has to vote to approve continuing the tariffs. So that means that within the next few months, Congress will need to vote to approve these new tariffs. Given their unpopularity with the public and with Congress, it’s far from certain that Congress would give him this authority. Some have speculated he may try to use his “licensing” authority under IEEPA to instead add licensing restrictions and fees to imports to replace his tariffs, though that would likely also be met with serious judicial challenges because he would clearly be trying to do basically the same thing that the Supreme Court told him he can’t do, just under a different name. And the 122 tariffs will likely meet judicial challenges, as when those tariff laws were passed, the idea of “balance of payments deficits” were very different than our modern understanding of international trade, not least of which because our dollar was backed by gold and now its not, we have fluctuating exchange rates, and a whole host of other economic reasons that go over my head and are for the lawyers challenging this in court some day to figure out.

However, it is likely that he will try to get around this through what are called 301 investigations, which his trade secretary Jamieson Greer mentioned during the Friday presser. This comes from section 301 of the Trade Act of 1974, which allows for investigations of “unfair foreign trade practices” and then, after those investigations, allows for retaliation via tariffs. This would bar Trump’s sweeping, across the board tariffs, because each individual country must be investigated and found to be engaging in unfair or unreasonable practices, but it would allow him to slap tariffs on countries especially that he is interested in targeting because of his own ego or as retaliation for other, non-economic reasons.

Then, there’s section 232, which is used to add tariffs to specific goods entering the US that threaten national security. This is commonly used on goods like oil, steel, and a whole lot more, and it’s unclear how many products can have these tariffs, how high the tariffs can go, and this also requires investigations and findings to be made before the tariffs can be set. Now that Trump has gotten this ruling from the Supreme Court, any actions he takes that are clearly meant to just replicate what he was doing under IEEPA will be met with intense judicial scrutiny.

Then there’s section 338, passed as part of the Smoot-Hawley Tariff Act of 1930. This allows for retaliatory tariffs to counter trade discrimination against US products by other countries. It has never been used, as the whole law was really meant to encourage trade negotiations, with section 338 a last resort that can be used to threaten tariffs if other countries didn’t negotiate in good faith. This was passed in 1930 back when imperial powers still held significant global economic might and often traded more favorably with their imperial holdings than with the United States. Back then, retaliatory tariffs were the name of the game, something that hasn’t been true since after the second world war until now. Also just generally, invoking a provision of the Smoot Hawley act right now would be politically dubious given the fact that that act worsened the burgeoning Great Depression in the years after it was passed. Not exactly a great look.

So based on what the administration has told us it plans on doing, it looks like they are applying these sweeping 15% tariffs as a stop-gap measure that will buy them 5 months before Congress has to vote to approve them. In those 5 months, they will conduct 301 investigations to find unfair trade practices being used in whatever country they want, I mean they’re not really tied to facts or figures or truth so I’m sure they’ll come up with something, and then those 301 tariffs can go into place. For everything else, perhaps Trump will attempt to use license fees as a means of approximating the tariffs once the new 15% ones expire for all the countries they don’t make a finding of unfair trade practices. Trump has mentioned licenses enough times in his incoherent ramblings that, much like a toddler saying the “f” word cuz he heard the adults in the room say it, I can’t imagine he hasn’t heard discussions about abusing license fees while he’s toddling around the Oval Office. And whether or not these licenses or the 122 tariffs or the 301 tariffs are legal will require more and more protracted court battles to untangle, buying Trump more time to continue doing what he’s doing, which is absolutely decimating the world order and the global economy while claiming America has never been stronger or richer.

Which leaves, of course, those hundreds of billions of dollars the Trump regime has claimed it has raised via its now illegal tariffs. What happens to that money? How does it get repaid? And to whom? If at all? The majority opinion says absolutely nothing about what to do with the illegally obtained funds. Kavanaugh does some handwringing about it in his dissent. But the practical reality is that this case was sent back to the lower courts to make a decision about remedies. It will likely mean that the handful of businesses who sued in this case might get awarded damages that will come out of the government coffers to repay them for the tariffs they paid. Which means, likely, that businesses that want to recoup the payments they made to the US government for these illegal tariffs would need to each individually sue the federal government in court to get their money back. This means that the US taxpayers have been fleeced multiple times over. Not only did all those businesses pass the expenses for the increased tariffs on to us in the form of higher prices, which we paid, out of our pockets, we also now will have to foot the bill, with our tax dollars, to finance the literal YEARS AND YEARS of litigation that will result from these lawsuits for all these businesses, who already charged US for those tariffs, to make a windfall off court damages for the tariffs they paid. And of course the only businesses who have the money to begin with to hire fancy attorneys to file those lawsuits are the multi-billion dollar companies, and the mom and pop shops that were still impacted by the tariffs in various ways will likely forego costly lawsuits. It’s absolutely fucking criminal the way this whole thing played out, and it’s not even done this was just their first tactic. The reality is that our cost of living is going to continue to increase on the backs of tariffs that major corporations will pass on to us while continuing to ensure increased shareholder value and CEO pay packages, whether Trump does it through IEEPA or 122 or 301 or 338 or whatever the fuck.

And so what do we do about it? Stop giving them your fucking money. I made an entire video about the legality and ethics behind tax evasion–which I am NOT endorsing here because that is ILLEGAL!!!!! But also like I’ve been saying at the end of every video we need to stop giving these companies our money and our data and our precious time and our lives. Whether that’s cancelling your Amazon prime membership or opting out of social media–because they’re all owned by the billionaires who’ve benefitted from price increases and would be the ones to sue to get their tariff money back–or buying local, or opting not to buy anything at all like we overconsume in this country anyway do you really need that shirt in four different colors do you really need to replace your Christmas dishware every season, like what the fuck are we doing. And meet your neighbors, engage in buy nothing groups which are unfortunately mostly on Facebook, help create a free store in your neighborhood or city, there’s lots of info online for how to go about starting a free store, just opt out of the capitalist bullshit, even if its like a buy nothing day every week or month out of every year or whatever, figure out ways to divest from all this bullshit, because the tariffs will continue, the cost of living with keep increasing, even if Democrats win in November and take back the White House, if one is still standing in 2029, it’s going to be more of the same, wrapped up in a centrist bow instead of a MAGA bow this time. No one. Is coming. To save us. WE save us. Start acting accordingly.

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And if you liked this episode, you’ll like my episode from last week about how the Epstein files should radicalize us all (if you’re not radicalized already).