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THE VIEW FROM HERE - The Unitary Executive Theory took a hit on February 20, 2026, when Supreme Court Chief Justice John Roberts ruled that much of Trump’s tariffs were unlawful. See Learning Resources, Inc. v. Trump, 607 U.S. ___ (2026), in which the Supreme Court held that the International Emergency Economic Powers Act does not authorize the President to set tariffs under that statute.]
In Noem v. Vasquez Perdomo, 606 U.S. ___ (2025), the Court considered the constitutional limits of ICE enforcement practices under the Fourth Amendment. Critics argue that the ruling narrows protections against certain investigatory stops and raises concerns about the risk of discriminatory enforcement.
In 2024, the Chief Justice John Roberts had granted Trump an unconstitutional power to be absolutely immune for criminal behavior if he claims the action, e.g. murder, was done as one of his core constitutional duties. See Trump v. United States, 603 U.S. 593 (2024) The goal of the Unitary Executive Theory is to shift power away from Congress and give it to the President. Thus, the Roberts Court did not see any need to adhere to the Constitution or to follow thousands of years of Western Civilization that no person, including a king, is above the law. Considering the granting of absolute immunity, allowing the President to rashly impose tariffs seemed mild. When Chief Justice Roberts authored the majority opinion in Learning Resources that Trump lacked the power to impose tariffs, it was major setback for Trump and for the UET.
The Legal Reasoning in Learning Resources
Legal thinking has four phrases: The facts, the issue, the discussion, and the conclusion (judgment).
Facts: Trump has issued a slew of tariffs claiming that the International Emergency Economic Powers Act (IEEPA) of 1977 (50 U.S.C. § 1702) authorizes the President to unilaterally impose tariffs.
Issue: Did the IEEPA transfer to the President Congress’ right to impose tariffs? More pointedly do the IEEPA’s words "regulate... importation" include the power to impose tariffs as a power inherent to regulate importation.
Rule: When a Congressional grant of power involves “vast economic and political significance," the granted powers must clearly ad explicitly stated.
Discussion: The IEEPA requires the President to declare a national emergency under the National Emergencies Act (NEA) describing the “unusual and extraordinary threat" posed by foreign powers. The Court, however, does not have to accept the President’s declaration of a national emergency, but the court did not make that issue, despite the fact there was no foreign caused emergency. Instead, it focused on the alleged power of the President to impose tariffs.
It is helpful to note that had the Court disagreed with Trump’s belief that such a national emergency existed, there be no need to address the issue: how much power does the President have? In deciding to address this issue of power, the court chose to focus its decision to Trump’s behavior in order to curtail his quixotic abuse of power. The court used a legal principle called The Major Questions Doctrine (MQD) that when the Congressional grant of power involves “vast economic and political significance,” Congress must provide clear, explicit authorization, which would require the IEEPA to expressly state that the President had the power to impose “tariffs.” The IEEPA does not use that word. Without the word tariff, there was no transfer of the power to impose tariffs under the IEEPA.
Conclusion: IEEPA does not authorize the President to impose tariffs.
Thus, Learning Resources emphasizes that tariffs are one of Congress’, and not the President’s, core constitutional powers. When Trump claims he can impose tariffs under other Congressional Acts, he has to prove that the grant includes imposing Tariffs. Trump, being a bombastic fool, is certain that other laws give him tariff power. Probably not.
Section 122 of the Trade Act of 1974 (19 U.S.C. § 2132)
Most TV discussions will probably use the shorthand of “section 122.” It provides the President may impose tariffs when there are "fundamental international payments problems.” Trump believes that his word is law and if he says that balance of payment are a fundamental international payments problem, he cannot envision that anyone disagrees with him. This is where the warning that Trump is not only a Narcissist but also a Histrionic comes into play. Histrionics lack analytic skills, and thus, Trump’s depth of analysis of legal cases is very shallow. In Learning Resources, which Trump has not read, the rule denying him tariff power said that grants of power have to be clear, but section 122's uses the out-of-date “fundamental international payments problem” wording. In 1973 when Section 122 was drafted, it was in response to the collapse of the Bretton Woods System, where the U.S. dollar was pegged to gold. The dollar is no longer pegged to gold and hence the precondition to invoke Section 122 no longer exists. Trump’s personal opinion that trade deficits are a fundamental payment problem is simply wrong.
Rigorous and strict inspection of Section 122
Section 122 is analyzed by a strict, rigorous standard. One may not make assumptions or guess what Congress would do when or if circumstances change. Section 122 could not make a “clear statement” about today’s conditions which did not even exit in 1973.
Trade deficits are not a problem, except in Trump’s mind. When a foreign country sells more to the USA than we buy from that country, Trump thinks that there is a trade deficit because the USA spends more money to buy that country’s products than it spends to purchase something made in the USA. In Trump’s mind, the USA should make everything and never buy from another country. Trump ignores the value of what we buy from other countries. If another country manufacturers a product cheaper and better than can be made in the US, the US consumer is benefitting by paying less than if the product were made in the USA. There is not trade deficit between Target and me because I buy more stuff from Target than it buys from me. Again, Histrionics lack any depth in analytic skills. Trump cannot mentally handle the extraordinary complexity of the modern markets were “Willing Buyers are free to pay the amount for which Willing Buyers will sell.” Thus, the terms “trade surplus” and “trade deficit” are neither good nor bad. Trump, however, due to his dearth of analytic skills and his rampant paranoia is convinced that when any country sells more to us than we are buying from them, “they are treating us very badly.”
What Will the Supreme Court Do with Trump’s section 122% Tariffs?
Making predictions is a fool’s game when it comes the court decisions. After a decision comes down, everyone has 20/20 hindsight.
(Richard Lee Abrams is a former Los Angeles-based attorney, an author, and political commentator. A long-time contributor to CityWatchLA, he is known for his incisive critiques of City Hall and judicial corruption, as well as his analysis of political and constitutional issues. Abrams blends legal insight with historical and philosophical depth to challenge conventional narratives. A passionate defender of civic integrity and transparency, he aims to expose misuse of power and advocate for systemic reform in local government. You may email him at [email protected])
