The Lawfare Podcast Lawfare Daily: The Trials of the Trump Administration, Feb. 20
Feb 23, 2026
Troy Edwards, former DOJ attorney focused on Justice Department independence and career staff impacts. Peter Harrell, trade-law scholar who analyzes the Supreme Court’s IEPA tariff ruling. They unpack the Court’s reasoning on tariff authority, limits on presidential trade power, alternative statutes like Sections 122 and 301, and the practical fallout for refunds, enforcement, and future litigation.
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Supreme Court Bars IEPA Tariffs
- The Supreme Court decisively held IEPA does not authorize tariffs, rejecting the administration's claim that 'regulate importation' includes taxing power.
- The Court's majority saw tariffs as a congressional taxing power and refused to read IEPA to permit big unilateral tariff decisions that alter trade revenue dramatically.
Agreement On Outcome Masks Doctrinal Fights
- The opinions split on methodology but not outcome: all agreed IEPA lacks tariff authority, while they diverged over using the major questions doctrine and legislative history.
- Multiple concurrences (Kagan, Gorsuch, Barrett, Jackson) debated major questions, nondelegation, and legislative-history approaches despite agreeing on result.
Use 122 And 301 To Rebuild Tariff Policy
- Expect the administration to shift to alternative statutes like Section 122 and Section 301 to recreate many tariffs, but not the instant, high-rate 'tariff by whim' power IEPA seemed to provide.
- Use Section 122 for short 150-day 10–15% tariffs and Section 301 investigations for targeted measures, noting litigation risk varies by statute and procedure.