Law Talk With Epstein, Yoo & Cooke The Trouble With Tariffs
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Feb 26, 2026 
John Yoo, constitutional law scholar with expertise in executive power, and Richard Epstein, renowned legal theorist in constitutional and property law, dissect the Supreme Court tariff ruling. They analyze statutory limits on presidential tariff authority. They debate non‑delegation, the major questions doctrine, whether trade deficits count as emergencies, and what statutes still permit presidential trade action.
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Court Says Tariff Power Requires Clear Delegation
- The Supreme Court held that Congress has exclusive tariff power but may delegate it, and the IEPA did not clearly delegate tariff authority to the president.
- Roberts read 'regulate' narrowly: embargo authority under IEPA doesn't automatically include power to impose tariffs without explicit statutory mention.
Court Sidestepped Whether Trade Deficit Is An Emergency
- The Court avoided deciding whether Trump's claimed trade-deficit emergency was actually a national emergency.
- By assuming an emergency for purposes of statutory interpretation, the majority limited its ruling to statutory text rather than assessing emergency merits.
Non Delegation Risk From Open Ended Tariff Grants
- Richard Epstein emphasizes separation-of-powers concerns: a statute allowing wholesale presidential tariff-setting could be an unconstitutional delegation.
- He urges that non-delegation doctrine means Congress cannot cede open-ended taxing power to the executive.