Small Businesses Are Fighting Trump's Tariffs in Court — and the Constitution Is on Their Side

The Case That Could Rewrite Trade Law

The Supreme Court doesn't usually concern itself with import duties on wooden pallets or polyester fabric bolts. But a coalition of small business importers has forced a question onto the nation's highest court that goes well beyond tariff schedules: who actually gets to set tax policy in this country?

The answer, according to Article I of the Constitution, is Congress. The answer, according to recent executive practice, is whoever happens to be occupying the Oval Office and feels strongly about trade deficits that week.

The businesses challenging Trump's tariff regime under the International Emergency Economic Powers Act — IEEPA — aren't making a political argument. They're making a structural one. And structurally, they're right in ways that should make constitutional conservatives deeply uncomfortable with the current arrangement, whatever they think of the underlying trade policy.

IEEPA Was Never Meant for This

The International Emergency Economic Powers Act passed in 1977. The legislative history is clear: it was designed to give presidents emergency authority to block financial transactions with hostile foreign actors during genuine national security crises. Iran asset freezes. Sanctions on narco-states. That kind of thing.

What it was not designed to do — what nobody who voted for it in 1977 imagined it could do — was serve as a permanent, unlimited presidential authority to impose across-the-board tariffs on the entire world as a negotiating tactic. The law requires an "unusual and extraordinary threat." A trade deficit with Canada does not meet that threshold. Not legally. Not texturally. Not by any good-faith reading of what Congress authorized.

And yet here we are. The administration has collected hundreds of billions in tariff revenue under a statute meant for emergencies, with no congressional action, no sunset provision, and no defined endpoint. The small businesses now seeking refunds — some of whom watched their margins evaporate overnight when the tariffs hit — are asking a straightforward question: did Congress actually authorize this? And if not, where does the money go?

I've read the relevant opinions out of the Court of International Trade, and I'll tell you what they reveal: there is genuine judicial unease with the breadth of executive authority being claimed here. That unease is warranted.

The Nondelegation Doctrine Finally Has a Case

For decades, originalists and textualists have argued that Congress has improperly delegated its legislative powers to the executive branch, violating the constitutional structure of separated powers. The Supreme Court has flirted with reinvigorating the nondelegation doctrine but never quite committed. This tariff litigation might force the commitment.

The core problem is simple: IEEPA as applied gives the president essentially unlimited authority to tax imports at any rate, for any reason, indefinitely, so long as he can articulate some foreign threat. That's not a delegation of trade authority. That's an abdication of congressional responsibility dressed up as a statute.

Justice Neil Gorsuch has written forcefully about nondelegation in prior opinions. Justice Clarence Thomas has been even more pointed. If this case reaches the Court with a proper record and a clean IEEPA challenge, there are at least four justices with the intellectual framework to say what needs to be said: Congress cannot hand the president a blank check to impose taxes and then pretend it still controls the power of the purse.

The small business plaintiffs are not asking the Court to make trade policy. They're asking it to insist that the constitutional body assigned that job actually do it. That's a profoundly conservative ask.

What Genuine Conservatives Should Think

The uncomfortable truth for tariff hawks on the right is this: if you support expansive IEEPA authority today because you like these particular tariffs, you've handed the next Democratic president the same tool. A statute that lets Trump impose 25% tariffs on Canadian goods because of a declared emergency is the same statute that lets a President Harris impose climate tariffs on carbon-intensive imports under a climate emergency. You don't get to build a constitutional weapon and then complain when the other side picks it up.

The businesses fighting for refunds understand this even if Washington doesn't. One importer I read about — a family-owned furniture retailer in Pennsylvania that sources from Vietnam — saw their costs spike by 46% in a single quarter. They didn't lobby for a trade war. They didn't vote for one. They got taxed by executive fiat and had no recourse because Congress had long since surrendered the levers.

That's the real story here. Not tariffs. Governance. Whether we're still a constitutional republic that runs taxing power through elected representatives, or a post-constitutional executive state where whoever sits in the White House can reach into American wallets with a proclamation.

The Court should take this case. And it should rule — clearly, on the merits — that IEEPA doesn't mean what the executive branch says it means. Congress can always pass proper tariff legislation if it has the votes. Let it.