Why the Conservative Split on the Tariff Case Is So Intriguing

Friday’s 6-3 Supreme Court opinion decided that Trump’s use of tariffs was an improper exercise of power that was reserved to Congress under the Constitution. The reason for the conservative split is perhaps the most intriguing part of the decision. As always, I am not going into the weeds and much of follows is a dramatic oversimplification for purposes of clarity.

Before getting to the disagreement among the conservative justices, we need to back up. Just because six justices agree on a result, that does not mean that they agree on the reasons for their ruling. Where there is a second, separate reason for a decision, the justices using that alternate rationale will write what is called a concurring opinion. Here, the three liberal justices found a separate reason for agreeing with Chief Justice Robert’s decision. In other words, they agreed with the result but not the reasoning. This means that in this case, there were at least two distinct reasons why what President Trump did was improper.

 In many cases, Supreme Court decisions rest on differing views about how to construe the Constitution and statutes. Typically, opinions on how to apply the Constitution is what separates the conservatives from the liberals. That was not the case here.

In the tariffs case, the conservatives agreed on the standards by which to judge Trump’s actions. That would often result in them voting in a block—but not here.

The standard applied in the tariffs case is one which has often been used by the courts to give the President a significant amount of discretion and leeway. Chief Justice Roberts’ opinion said that even this broad authority has its limits. President Trump exceeded that authority by attempting to take away something given to the Legislative branch by the Constitution. The dissenting justices would put no such limitation on the president.

Dissenting Justice Kavanaugh, in one of the weakest arguments you will likely see, noted that trying to return the ill-gotten tariffs would be extremely complicated. Think about that in another context. Say that a business defrauded millions of customers. Would you let it off the hook because of the difficulty in repaying those who were defrauded?

The bottom line is that although the conservative justices have generally agreed on expanding the powers of the executive branch, in the tariffs case, three of them said enough is enough.