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Is the Supreme Court really a conservative court, bound by conservative principles of statutory construction and judicial review, or is it President Donald Trump's Court, ready to do his bidding, no matter how radical it may be? This week's tariff cases, challenging the president's power to unilaterally impose whatever tariffs he chooses, will go a long way in answering that question.

See, the problem for the president is that the Constitution gives the power to tax, which is what a tariff is, to Congress. The Act Trump is relying on to give him this power, the International Emergency Economic Powers Act (IEEPA) of 1977, didn't give former President Jimmy Carter the authority to impose tariffs; it authorized him to "regulate" importation in order to "deal with any unusual and extraordinary threat." Neither Carter nor any of the presidents who came after him considered it a license to impose tariffs.

Neither did the Court of Appeals when it considered the case, finding that "where Congress intends to delegate to the president the authority to impose tariffs, it does so explicitly, either by using unequivocal terms like tariff and duty, or via an overall structure which makes clear that Congress is referring to tariffs."

The Solicitor General's brief arguing the Trump position is full of histrionics. Invalidation of the tariffs "would be a total disaster for the country" and might "literally destroy the United States of America ... With tariffs, we are a rich nation; without tariffs, we are a poor nation. Suddenly revoking the president's tariff authority under the (International Emergency Economic Powers Act) would have catastrophic consequences for our national security, foreign policy and economy."

The Court, as any good conservative will tell you, does not exist to decide giant policy questions but rather has its own mandate to ensure that the Executive acts constitutionally. That means not assuming that Congress has delegated authority that it did not explicitly do.

Indeed, conservatives have branded their own interpretative principle, "the major question rule," that the executive branch cannot act on a major question of economic or political significance without clear authority from Congress. That was the reason that a 6-3 conservative majority struck down the Biden administration's student loan relief program, even though a federal statute allowed the Secretary of Education to "waive or modify" student loan debt. Not good enough: the Court said that student loan debt was a "major question" and that Congress had not provided sufficiently clear authority for the relief Biden was offering. If student loan debt relief qualifies as a "major question," how can tariffs not be?

By far the most troubling part of the Solicitor General's argument was the claim that the president's actions are not subject to judicial review. The brief makes no bones about it: "(T)he president's determinations in this area are not amenable to judicial review. Judges lack the institutional competence to determine when foreign affairs pose an unusual and extraordinary threat that requires an emergency response; that is a task for the political Branches."

Will a conservative court jettison the most basic principles of judicial review? How can the president's exercise of power be free from judicial review to determine if it is lawful and constitutional? This dispute isn't just about tariffs. It's about whether President Trump's Court will place him above the law. Again.

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To find out more about Susan Estrich and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at www.creators.com.

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