At the beginning of the Trump presidency in 2017, one of his first actions was to appoint Neil Gorsuch to the Supreme Court. Since then, Gorsuch has been a reliable conservative member of the court, but, as the founders hoped, the judiciary remains an independent branch of government. Their job has always been to interpret the law, with the legislative branch writing it and the executive enforcing it. President Donald Trump views things through a partisan lens. He sees those he appoints as part of his team. If they rule against something he supports, they are disloyal or have betrayed the cause. Without getting into the polemics of Trump’s ideas about the judiciary, the recent Supreme Court ruling, especially Justice Gorsuch’s opinion on Trump’s executive order imposing tariffs on all goods entering the U.S., warrants some analysis.
The International Emergency Economic Powers Act of 1977 (IEEPA) is a US federal law (50 U.S.C. §§ 1701–1707) that empowers the President to regulate commerce, including freezing assets or restricting transactions, in response to an “unusual and extraordinary” foreign threat. Released on Feb. 20, the Supreme Court, in referring to IEEPA, stated that while it authorizes non-tariff economic sanctions, it cannot be used to impose broad tariffs. The ruling did not shock court observers, but Gorsuch’s scorching concurrence with the majority hit hard at the hypocrisy of the liberal judges (Kagan, Sotomayor, Ketanji Brown Jackson) who voted with him and criticized the three conservative members (Justices Thomas, Alito, and Kavanaugh) who dissented. Gorsuch also took issue with Amy Coney Barrett’s opinion and even with Chief Justice John Roberts, with whom he concurred. As Adam White described it, “This Gorsuch decision is a polemic for the ages, calm, reasoned, systematic, and so beautifully written and expressed that I don’t remember a Supreme Court decision that for me was like eating the most luxurious hot fudge sundae that had ever been delivered to me,” (From The Commentary Magazine Podcast: White Monday, Feb 23, 2026).
In summation, after more than a hundred pages of opinions from various vantage points, Justices Gorsuch and Barrett said the emergency law from which Trump based his tariffs does not empower him to do so. In effect, his actions impinged on the rights of the legislative branch and were a misreading of the law. The case boiled down to the IEPPA statute and whether the president can impose tariffs. The majority said no, of course not, because regulations and tariffs are different things. Kavanaugh tried to argue the opposite, using President Richard Nixon’s imposition of tariffs in 1971, but this is a new statute. While he drew upon established legal precedents from the time of James Madison and meticulously crafted the administration’s most persuasive argument, the effort failed. For his part, Gorsuch denied Kavanaugh’s case but then took a club and smashed the arguments of those who concurred with him. He began with the liberals, calling them hypocrites. Appealing to the ‘major questions doctrine’ (when an agency claims to have the power to decide an issue of “vast economic and political significance,” it must point to “clear congressional authorization”), Gorsuch provided examples going back to English rule. By striking down Trump’s tariffs, the liberals had endorsed the doctrine. Over the last four years, however, on rulings that raised the same questions about emergency powers during the Biden presidency, they lined up with the administration of the day (student debt, rent abatements, and EPA cases). Gorsuch did not let them off the hook. He called them out for letting President Joe Biden do whatever he wanted, but then suddenly discovering that under a Republican president, this could not happen.
Gorsuch goes down the line with each justice. As White says: “From his time on the 10th Circuit through now, he has been building a systematic intellectual case for how the separation of powers is supposed to work, how Congress and the courts had completely abdicated their responsibilities for decades, how this fundamentally injured, vulnerable people, powerless people, and how the court needed to reclaim its power both by striking down more statutes and by interpreting the laws in light of the separation of powers, which is why he even takes a two-by-four to Justice Barrett’s opinion,” (Commentary Magazine Podcast Feb 23, 2026). The importance of his opinion rests on the principle that laws are the responsibility of Congress. He implores Congress to take back this power. To legislate actively and responsibly, not in response to executive direction, but in conjunction with it or parallel to a president’s stated wishes. Can it awaken a lethargic Congress? If it does, the benefits for the nation will be salutary regardless of Trump pounding a table, calling the justices an embarrassment, and whining about losing the case.
AFTERMATH?
What happens next? Trump, thankfully, has not attempted to circumvent the law like Joe Biden did with student loans. He has, however, used other legislation to apply a 15 per cent tariff on all foreign goods. A post on the White House website, following the ruling, stated: “President Trump is invoking his authority under Section 122 of the Trade Act of 1974, which empowers the President to address certain fundamental international payment problems through surcharges and other special import restrictions.” Trump’s infatuation with tariffs will not recede because of Gorsuch’s opinion or the court’s ruling. A Republican Congress will probably not confront Trump with new legislation, nor will it be able to pass much because the numbers are so narrow and the caucus divisions too great. This leaves Trump with executive action as his best bet. But he now has limits.
The court did its job, ruling constitutionally and in the nation’s long-term best interests. The reinstatement of the separation of powers throughout the entire American governmental structure will reestablish the democratic legacy of the populace. Confidence in the institutions of the American Republic has been under stress for some time. Trump did not begin it, nor has he done much differently than his predecessors, especially Biden and Barack Obama. However, restoring Congress’s role as the source of legislative power will take time to rediscover. With the likelihood of a Democratic Congress after the midterms and Trump’s remaining two years ahead, the American people face a rocky road of insults and innuendo, as seen during the recent State of the Union address. Still, the nation owes the Supreme Court a debt of gratitude and Justice Gorsuch a toast for calling the nation back to its founding document and its fundamental principle: the separation of powers.
Dave Redekop is a retired elementary resource teacher who worked part-time at the St. Catharines Courthouse as a Registrar until being appointed Executive Director at Redeemer Bible Church in October 2023. He has worked on political campaigns since high school and attended university in South Carolina for five years, earning a Master’s in American History with a specialization in Civil Rights. Dave loves reading biographies.
