During oral arguments before the Supreme Court on Wednesday, Solicitor General D. John Sauer asked the justices to believe things that just aren’t so. He insisted again and again that the government, in imposing tariffs under International Economic Emergency Powers Act, is not asserting a power to tax.
But no such distinction exists between taxes and tariffs. They are taxes on imported goods. Fortunately, most of the justices seem to agree.
One of the surest signs that they are taxes is that they bring in money to the government. Customs and Border Protection said the IEEPA tariffs have raised $89 billion through Aug. 31 and no doubt billions more than that by now. The government’s brief in the case said that the court must leave the tariffs in place in part because they are projected to reduce the national deficit by $4 trillion over the coming years. Yet Sauer said the tariffs are regulations, not taxes, and that the revenue they raise is only incidental to their regulatory and foreign policy purposes.
The president doesn’t seem to think that’s true. Past White House statements have bragged about “shattering tariff revenue records” that are “topping $100 billion in a fiscal year for the first time ever.” The White House estimate for the budgetary impact of the One Big Beautiful Bill Act included $2.8 trillion in deficit reduction from tariff revenue over the next 10 years.
Treasury Secretary Scott Bessent doesn’t seem to think that’s true, either. He has said tariff revenue is “how we clean up the fiscal mess we inherited” and that it will help “lower the deficit and reduce the national debt for the American people.” That’s fiscal policy, not foreign policy.
One can agree or disagree on whether the tariffs are a good idea while still acknowledging that they are taxes, and that the administration is using them for fiscal policy purposes. So long as they are, the Constitution is clear on where the power lies to impose them: Article I, the legislative branch.
The Founders intended this. They believed taxation is one of the most coercive powers of government, and that it should not be undertaken without deliberation among the people’s elected representatives.
The importance of that design became apparent as Justice Neil M. Gorsuch questioned Sauer. Under the government’s logic, Gorsuch postulated, a future administration could declare an emergency for climate change and then impose taxes to address that emergency. Sauer conceded that it probably could.
That’s an idea that even President Joe Biden thought went too far. Biden never tried to unilaterally impose taxes to combat rising temperatures; instead, he went to Congress to pass the Inflation Reduction Act, which he hailed as the most significant U.S. climate legislation ever enacted.
Trump refuses to do the same with his tariffs. If he really thinks the trade deficit is a problem, he can ask the Republican majorities in the House and Senate to codify the tariffs he wants. He could also use several trade and national security statutes to target specific goods and specific countries, as he did in his first term and is doing alongside the IEEPA measures.
What he cannot do is use a law that never mentions tariffs, and has never before been interpreted to permit tariffs, to impose them and then gloat about all the revenue he is raising with them, while simultaneously contending that these tariffs aren’t taxes.
A potential $4 trillion tax increase is a big deal — roughly nine times the size of Biden’s student loan program that the Supreme Court struck down — and is the proper subject of legislation, not one man’s whim.
Maybe the solicitor general has made peace with a President Alexandria Ocasio-Cortez declaring a climate emergency in 2029, but we suspect Republican members of Congress have not.
