The Trump administration seems to be catching on to what has been clear for some time: The president’s claim of virtually unlimited, unilateral power to impose tariffs at whatever rate he chooses is in serious legal trouble.
Scott Bessent’s revealing admission about Trump’s tariffs
The White House’s tariff rationale is in legal trouble. Cue the treasury secretary to float a new argument.
August 14, 2025 The Washington Post
And hence Treasury Secretary Scott Bessent’s doth-protest-too-much assertion on Fox Business on Tuesday that Trump’s border taxes will survive the courts because they are raising so much money for the federal government. “The amount of money that’s coming in here — I think the more deals we’ve done, the more money coming in, it gets harder and harder for [the Supreme Court] to rule against us,” Bessent said. He added that tariff income is “well in excess” of $300 billion.
Think about that for a second. At issue in the tariff case is whether the president is usurping Congress’s power to tax. And the treasury secretary is pointing out that the tax is so large that the courts can’t possibly find that the president has exceeded his power. That has it backward.
The power to raise revenue for the government belongs to Congress. As James Madison wrote in the Federalist Papers, “The legislative department alone has access to the pockets of the people.” Tariffs are taxes paid by U.S. importers — individuals and companies — to Customs and Border Protection, which then gives the money to the U.S. treasury. If Trump is ordering Americans to pay huge sums of money without clear authorization from Congress, that ought to heighten judicial scrutiny of whether the taxes are legal.
Trump based his “Liberation Day” tariffs on a 1977 law that no previous president has used for that purpose. The International Emergency Economic Powers Act gives the president the power to “block,” “regulate,” “void” or “prohibit” importation in an emergency. Trump claimed that “large and persistent annual U.S. goods trade deficits” constitute an emergency and that tariffs are a form of regulation.
But note that Bessent did not say that the tariffs must be saved by the courts because they are so successful at addressing trade deficits or fortifying national security (which Trump’s emergency declaration also mentioned). He pointed instead to the tariffs’ success at extracting revenue for his Cabinet department as a reason the Supreme Court wouldn’t dare strike them down.
That argument might fit better if Trump claimed the “emergency” prompting his IEEPA tariffs was that the government does not collect enough money from taxpayers. But that would have underscored the absurdity of the presidential power claimed. Governments always want more money, and Congress obviously didn’t intend IEEPA as a general revenue-raising tool.
The Trump administration has argued that if IEEPA allows the president to embargo certain goods altogether, surely it allows him to take the lesser action of taxing them. But as Judge Richard G. Taranto pointed out in last month’s Federal Circuit argument, sometimes Congress might give the president a “tough choice between really tough action and no action, because intermediate kinds of actions,” such as a tariff, “are too easy.”
Bessent’s comment makes Taranto’s point. It’s one thing for the president to impose full-scale embargoes on the countries he has tariffed. That would be an economic shock, and he’d be accountable for it politically. It’s another thing for him to impose stealth taxes Congress never passed but that force Americans to pay more of their incomes to the administration he controls.
That would certainly be an “easy” way to raise taxes — but not any more constitutional for that reason. The ambiguity around tariffs and price increases erodes accountability. Americans might pay higher prices as a result of Trump’s vast IEEPA tariffs, but it’s not apparent who is raising taxes on them or by how much. If Congress actually passed a bill authorizing the president to impose tariffs to address trade deficits or raise revenue, the line of accountability would be much clearer.
To be fair to Bessent, his point about the “deals we’ve done” with other countries is constitutionally stronger. The Supreme Court doesn’t want to intervene in diplomacy, which — unlike taxation — is a core presidential power.
But the administration might be realizing that its constant invocations of foreign affairs aren’t sufficient to wave off judicial review. It should have worked with Congress and put its trade dealings on a stronger legal foundation. There’s still time to do so.