Justice Thomas BREAKS RANKS — SCOTUS Warns Against This

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A Supreme Court justice’s solo dissent in a major tariff case proposed a radical theory that would allow Congress to hand the President nearly unlimited power over foreign commerce and trade, alarming constitutional conservatives who see this as a dangerous path toward executive overreach that sidesteps the separation of powers our Founders carefully constructed.

Story Snapshot

Justice Clarence Thomas dissented alone in a 5-4 Supreme Court ruling that struck down President Trump’s broad tariff authority under IEEPA, arguing Congress can freely delegate “non-core” powers like foreign commerce to the executive without constitutional limits.
Chief Justice Roberts led the majority in affirming that tariffs remain a core congressional taxing power under Article I, rejecting the administration’s claim of emergency authority and preserving legislative primacy over trade policy.
Even conservative Justice Neil Gorsuch rejected Thomas’s novel theory during oral arguments, warning it could allow Congress to abdicate constitutional responsibilities over war and commerce powers.
The February 20, 2026 ruling limits executive tariff options to explicit statutory authorities with built-in constraints, protecting American businesses and consumers from unbounded presidential trade actions.

Thomas’s Unprecedented Constitutional Theory

Justice Clarence Thomas stood alone in his February 20, 2026 dissent in Learning Resources, Inc. v. Trump, advancing a theory that divides legislative powers into “core” and “non-core” categories. He argued that while Congress cannot delegate domestic regulatory authority over life, liberty, and property, it may freely hand the President unlimited control over foreign commerce and tariffs without violating the nondelegation doctrine. Thomas claimed these “non-core” powers derive from British kingly authority rather than Article I’s enumerated powers. No other justice joined his dissent on this constitutional reasoning, leaving him isolated even among conservative colleagues who otherwise supported executive tariff authority on narrower statutory grounds.

Constitutional Conservatives Reject Executive Overreach

Chief Justice John Roberts authored the 5-4 majority opinion striking down Trump’s use of the International Emergency Economic Powers Act for broad tariffs, firmly declaring that taxing authority belongs exclusively to Congress under Article I, Section 8. Roberts applied the major questions doctrine, which requires clear congressional authorization before agencies or the executive can claim power over matters of vast economic significance. Justice Neil Gorsuch joined the majority and had already signaled concerns during oral arguments, questioning whether Congress could constitutionally surrender its war-making and commerce powers to the President. This conservative alliance prioritized structural constitutional limits over expansive executive flexibility, demonstrating that fidelity to the Constitution’s separation of powers transcends partisan outcomes.

The Founders’ Framework Under Attack

The Constitution vests all legislative powers in Congress through Article I, Section 1, establishing the nondelegation doctrine that prevents lawmakers from handing their authority to other branches. Article I, Section 8 explicitly grants Congress power to “lay and collect Taxes, Duties, Imposts and Excises” and “regulate Commerce with foreign Nations.” Thomas’s dissent would effectively erase these textual limitations for an entire category of powers, creating what legal analysts described as “near-monarchical” executive authority over foreign economic policy. The Supreme Court has struck down congressional delegations on nondelegation grounds only twice in history, both in 1935 cases, and no prior ruling ever exempted foreign affairs from constitutional limits on executive power.

Competing Visions Within Conservative Jurisprudence

While Thomas dissented on constitutional grounds, Justice Brett Kavanaugh authored a separate dissent joined by Justices Alito and Sotomayor, arguing on narrower statutory interpretation that IEEPA’s language authorizing regulation of imports historically includes tariff authority. Kavanaugh pointed to precedents like Nixon’s 1971 tariffs under IEEPA’s predecessor statute and noted that other laws explicitly preserve executive tariff powers with specific limitations. This dissent accepted the majority’s constitutional framework but disagreed on whether Congress had already clearly delegated tariff authority through IEEPA. The split reveals an important distinction: supporting presidential authority when properly granted by statute versus endorsing a constitutional theory that would allow unlimited delegation of entire categories of legislative power to the executive branch.

Preserving Congressional Authority Over Trade

The majority ruling does not eliminate executive tariff authority entirely but channels it through explicit statutory frameworks that include constraints and congressional oversight. The Trade Expansion Act Section 232 allows national security tariffs with procedural requirements. Trade Act of 1974 provisions authorize tariffs in response to unfair trade practices but with time limits and caps. These statutes reflect the Founders’ design: Congress establishes policy boundaries and the executive implements within those limits. The Court’s rejection of IEEPA as a blank check for tariffs prevents future presidents from unilaterally launching trade wars that could devastate American businesses, consumers, and the broader economy without meaningful legislative accountability or recourse.

Implications for Limited Government Principles

Thomas’s isolated dissent raises concerns among constitutional conservatives who champion limited government and separation of powers as essential bulwarks against tyranny. Legal commentators from libertarian and conservative outlets including Reason and the Cato Institute criticized the dissent as disconnected from constitutional text and history, warning it would enable executive branch consolidation of power the Founders specifically designed against. The majority’s decision reinforces that even during national emergencies or in foreign affairs, the President cannot claim inherent authority to exercise legislative powers without clear statutory authorization. This protects not just congressional prerogatives but the fundamental principle that concentrated power threatens liberty, regardless of which party controls the executive branch.