Learning Resources, Inc., ET Al. V. Trump, President Of The United States, ET Al. — A Supreme Court Ruling With Richard Wilson

In Podcast 165 of Hot Topic, Bold Talk, attorney Richard G. Wilson and Dr. Jackalyn Rainosek dissect one of the most consequential Supreme Court decisions of the year: Learning Resources, Inc. v. Trump — a 6-3 ruling that struck down sweeping presidential tariff authority and reaffirmed foundational constitutional limits on executive action.

This episode is a must-listen for anyone trying to understand how the Supreme Court is reshaping American governance. The decision centers on whether the International Emergency Economic Powers Act (IEEPA) — a Cold War-era law usually used to impose sanctions — authorized the president to levy broad tariffs on imports without explicit congressional approval. In February 2026, the Court held that it does not. The majority ruled that tariff powers are reserved for Congress under Article I of the Constitution, and that using IEEPA to impose tariffs without clear legislative authority oversteps the separation of powers.

Why this matters to listeners:

Legal clarity on executive power: Richard Wilson breaks down the Court’s extensive 170-page opinion — including how much of it constitutes the 6-3 majority — and explains the legal language of the statute in question, the constitutional text on tariff authority, and how the decision applies (or doesn’t apply) to other tariffs and executive actions.
Major Questions Doctrine: Learn what the major questions doctrine is and why it played a central role in this ruling — a key topic Jackalyn explores to help listeners understand how the Court checks claims of sweeping presidential authority.
Social and economic impact: Dr. Rainosek draws on recent analysis from The New York Times, The Atlantic, and other major outlets to contextualize the broader implications: how this decision challenges the idea that the Court simply rubber-stamps presidential power, and how it relates to public concern about corruption and unchecked executive authority. The Atlantic notes this ruling is a rare moment when the Court pushed back on arbitrary presidential power — even under a conservative majority — reinforcing democratic accountability.
Real consequences for business and everyday Americans: The Supreme Court’s decision effects families and small business owners alike — illustrated by the Learning Resources story of a Chicago toy company that paid millions in tariffs and stood up to the federal government.
What comes next: The panel assesses unanswered questions — including whether previous tariffs will be refunded, how future tariff regimes might be structured, and whether Trump and future presidents can pursue similar policies under other statutes.

Hot Topic, Bold Talk delivers both legal insight and social perspective, helping you understand this case not just as a court decision, but as a pivotal moment in America’s constitutional order and economic future.

Episode Summary Points:

The Constitutional Boundary of Taxing Power: The Supreme Court reaffirmed that the power to “lay and collect taxes, duties, and excises” is a core legislative function vested in Congress under Article 1, Section 8. While Congress can delegate specific authorities to the Executive Branch, the Court ruled that such a significant power—specifically the imposition of hundreds of billions of dollars in tariffs—cannot be implied through vague or tangential phrasing. In this case, the two words “regulate” and “importation” in the International Emergency Economic Powers Act (IEEPA) were deemed insufficient to grant the President unilateral authority to tax foreign goods.
Statutory Interpretation vs. “Willy-Nilly” Governance: The ruling highlights a systemic check on executive overreach, particularly regarding the “major questions doctrine.” This principle asserts that if Congress intends to delegate a matter of vast economic or political significance, it must do so with unmistakable clarity. The Court observed that the President’s frequent, fluctuating changes to tariff rates (ranging from 10% to 145%) demonstrated an exercise of power that the statute could not “bear.” By striking down these actions, the Court signaled that even in a declared emergency, the Executive cannot “manipulate the world economy” by interpreting old statutes in novel, expansive ways.
Key Legal Takeaways
- IEEPA Limits: The Court ruled that “regulating importation” does not automatically include the power to “tax” via tariffs.
- Major Questions Doctrine: A judicial rule requiring clear congressional authorization for executive actions with massive economic impact.
- Tariff Act of 1974: A separate statute that does allow tariffs, but with strict caps (20%) and time limits (150 days), unlike the unlimited power claimed under IEEPA.

Insights on Institutional Competence: The discussion underscores a growing judicial trend of “textualism,” where the Court focuses strictly on the language of the law rather than the perceived necessity of an emergency. This approach aims to restore the separation of powers by forcing Congress to “wake up” and reclaim its legislative responsibilities rather than allowing the Executive Branch to fill the vacuum. Furthermore, the episode notes the practical failure of these tariffs; despite their imposition to reduce the trade deficit and combat fentanyl smuggling, data showed the deficit grew and smuggling persisted, suggesting that legally “distorted” policies often fail to meet their stated socio-economic goals.
The Rule of Law and Judicial Pragmatism: The discussion transitions from the technicalities of the Learning Resources v. Trump ruling to its broader implications for American governance. While the majority focused on statutory limits, the dissent, led by Justice Kavanaugh, raised concerns about the “messy” practical fallout—specifically the potential for the government to refund hundreds of billions of dollars to importers. This highlights a tension in the rule of law: should the Court prioritize the strict text of the law, or the chaotic economic ramifications of reversing widespread executive action?
Restoring Faith and Limiting Corruption: Relying on insights from David French, the episode argues that this ruling may be “the most important of the century” not just for trade, but for the health of the Republic. By siding with the liberal bloc, three conservative justices demonstrated that the Court is not merely a political instrument of the president. This helps counter public cynicism by showing that reason and precedent can still outweigh partisan loyalty. Furthermore, the decision serves as a check on potential corruption; by stripping the executive of vast, discretionary taxing power, it reduces the incentive for the “pay-to-play” lobbying that often accompanies unilateral tariff exemptions.
Comparison of Judicial Perspectives
- The “Trio” (Roberts, Gorsuch, Barrett): Majority – Relied on the “Major Questions Doctrine”—significant powers require explicit Congressional grants.
- The “Liberal Bloc” (Kagan, Sotomayor, Jackson): Majority – Rejected the Major Questions Doctrine as a “legal fiction,” focusing instead on simple English and statutory construction.
- The Dissent (Kavanaugh, Thomas, Alito): Dissent – Argued that the power to “ban” imports implies a “lesser” power to tax them, while worrying about the practical “mess” of refunds.

Insights on “Whack-a-Mole” Governance: The episode concludes with a sober warning: while the Court struck down the use of the IEEPA, the Executive Branch remains agile. Almost immediately after the ruling, the administration pivoted to the Tariff Act of 1974 to reimpose duties.
- The Judicial Lag: It took the Court 10 months to rule on the IEEPA tariffs, during which time billions were collected.
- The Executive Speed: The President can “check a different statutory box” in minutes, creating a cycle of litigation that the Judiciary struggles to keep pace with.
- The Ultimate Taxpayer: Despite political rhetoric, the “tax” is ultimately paid by domestic importers and passed to consumers—visible in the rising cost of everyday goods like coffee or medical supplies.

References for Podcast 165:

French, D. (2026, February 22). Is This the Most Important Supreme Court Case of the Century? The New York Times.
Frum, D. (2026, February 20). The Supreme Court Delivers Trump a Humiliating Gift: Finally, a check on the president’s tariff powers. The Atlantic.
Kahloon, I. (2026, February 20). The Supreme Court Isn’t a Rubber Stamp. The Atlantic.
Learning Resources, Inc. v. Trump, 607 U.S. ___ (2026).
Supreme Court of the United States. (2026). Learning Resources, Inc. v. Trump, President of the United States, et al., 607 U.S. ___ (2026). https://www.supremecourt.gov/opinions/25pdf/24-1287_4gcj.pdf

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Learning Resources, Inc., ET Al. V. Trump, President Of The United States, ET Al. — A Supreme Court Ruling With Richard Wilson

Shaping The Limits Of Presidential Power And The Future Of U.S. Tariff Policy

I have the privilege of Richard Wilson with me because he is the lawyer, and he is going to help us understand this new tariff opinion that we got from the Supreme Court. I want to say that I am excited about this as a part of my show. I started this particular show with Richard because I think we need to understand what is going on in the court system. Let us pay attention to what the district and federal courts are doing.

Let us be able to pay attention to what the Supreme Court is. This one, in particular, is an amazing case. I am going to start, Richard. The first thing I want to say is I think this has really contributed to our American system, as far as laws are concerned. It has significantly helped contain some of the president’s rights to impose tariffs. It would be helpful for all of us to understand basically what the ruling says. I will start asking you other questions about it because it is literally 170 pages. I look forward to what you have to say.

Scope & Impact Of The Supreme Court’s Ruling

Understood. Thank you. I will start by saying that if we were to ask some of the Supreme Court justices whether or not this case is a big deal, I cannot deign to speak for them, but I would guess that many of them would say, “It is a simple case of statutory construction.” We were asked whether or not the International Emergency Economic Powers Act, which is a particular federal law on the books, gave any president the ability to impose tariffs under the language of that statute.

The 6-3 opinion was that this particular statute does not give the president the power to do that. Having said that, I will say that going beyond the simple legal question that was answered, I agree with you about the ramifications for this main reason. In the roughly ten months to a year that it took for this case to be handed down, I think it is closer to ten months. The case goes through the magnitude, and we are talking about billions in tariffs that have been collected by the government. I do not mean 5 or 10 billion. I cannot remember the number off the top of my head, but it is more in the hundreds of billions.

The magnitude of this decision, saying that it was improper for the government to collect those tariffs because the president did not have the power to impose them under that statute, obviously has a massive economic effect. We will expand on that more as we discuss the different opinions provided by the court in this particular case. As you pointed out, the totality of all of the opinions, majority, concurring, and dissent is 170 pages. That is quite a lot of reading, even for those of us who might really dig the law.

I can tell you one thing. It did enlighten me a lot. Thank you very much for highlighting the points I needed to read. I know that Robert’s opinion is short compared to the 170 pages. What could you do to begin to help us understand and name the case we are talking about? Please do that. Tell me what you see in Robert’s opinion.

The name of the case is Learning Resources v. Trump. Robert’s opinion, you are right, is barely over twenty pages long. It is like twenty pages and one paragraph on page 21 of the 170 pages of opinions. Here is what is more. There are only three judges who joined in all 21 pages of Robert’s opinion. Those are Chief Justice Roberts, Justice Amy Coney Barrett, and Justice Gorsuch. The six votes come from Justices Kagan, Sotomayor, and Jackson. Their joining in the opinion was not entirely on their part. They did not join into part 2A2, which is what is called the major questions doctrine.

What Robert’s opinion does is it goes into the language of the statute. The question really being asked is the two words in the statute that the government was relying upon to say the president could impose these tariffs were the words, let me get to it, regulate and importation. Here, really, is all you need to read from Robert’s opinion to understand what the 6-3 majority holding is.

Based on two words separated by sixteen others in Section 1702A1B of the Act, regulate and importation, the president asserts the independent power to impose tariffs on imports from any country of any product at any rate for any amount of time. Those words cannot bear such weight. That is the opinion that the words regulate and importation separated by sixteen other words in the statute, do not give the president the right to impose taxes.

Roberts points out in his opinion that a tariff, if that is what we want to call it, or a duty on imports, is a tax. Roberts points out that a tariff has been considered a tax since the founding of our country. In fact, he points out that the second act that Congress passed, which is a lot of historical analysis in his twenty-plus pages, was the imposition of tariffs on the import of foreign goods. Before we had a federal income tax, that was in large part how the government raised money to sustain itself. They do not do things for free.

[bctt tweet=”The magnitude of this decision—saying it was improper for the government to collect those tariffs because the president did not have the power to impose them under that statute—obviously has a massive economic impact.” via=”no”]

He points out that the power to tax is really important. For that power to be granted by the statute, and this is where you really have disagreements amongst the judges, the statute has to be interpreted in a manner where that power is clear. That is the word that is often used in the opinions. The words regulate and importation separated by sixteen other words, Roberts says, is not a clear delegation of the congressional power to tax to the executive department. There are several things that Roberts touches upon that I think are important in the decision.

On page two of the opinion, Roberts has an entire paragraph where he points out that the president has issued several increases, reductions, and other modifications to the tariffs he imposed based on an emergency. The stated emergency in the executive order imposing these tariffs was that we needed to stop the illegal importation of fentanyl into our country by imposing penalties on the nations where that fentanyl was being produced, and we needed to try to balance the trade deficit.

Those are the emergencies he was relying upon to impose these taxes. What Roberts points out is that he started at ten percent for China. A couple of days later, he raised the rate to twenty percent. When China imposed tariffs, it imposed reciprocal tariffs. By the end of it all, the total amount of tariffs on Chinese goods was 145% of their value. He goes into other changes that the president just made unilaterally. The frequent changes to the tariffs are really willy-nilly, while ultimately, this is an issue of interpreting words in the English language. The court will use certain cues to interpret those words.

The constant changes in the tariffs were certainly something that weighed heavily on several of the justices. Roberts mentions it on page three of his opinion. When you get to the concurring opinion of Justice Gorsuch, he mentions it on page 39 of his concurring opinion. In fact, let me go to the language in Gorsuch’s opinion, because it is very clear that that was an issue for him.

He says, “Before us, the president insists he may use IEEPA to equalize foreign and domestic duties or not. He may use it to negotiate with foreign countries or not. He may set tariffs at one percent or a million percent. He may target one nation and one product or every nation and nearly every product. He may change his mind at any time for any reason. At least as I see it, history dating back to the near founding does not support the notion that presidents have enjoyed so much power.”

The actions of the president in the handling of these tariffs, I believe, affected the decisions of several of the justices in the six-justice majority. Gorsuch comes right out and says that those actions had an effect on him, that seeing the amount of power that the president was trying to exercise through this statute is in part a reason why he does not believe the statute gives that amount of power to the president alone.

Let me ask some questions here because I think it is important. It seems like the Emergency Act he was trying to use, they are saying it does not justify that. I want you to talk more about the Emergency Act, and talk about that and describing. Let us go with the Emergency Act first, because then I have two other questions about it. What they are saying in the Emergency Act, these words that are used in there are not sufficient for him to have had tariffs. I know personally that Congress is the one that has the right to decide on tariffs or taxes. I would like for you to not only talk about the Emergency Act, but also talk about where the power to tax and impose tariffs?

Constitutional Power To Tax & Limits On Delegation

The Emergency Act gave the president certain powers in relation to international trade. The question is, did those powers include the power to tax? The answer to that question was no. I am not going to read the entire clause, as Roberts points out. You have got two words separated by sixteen others. I do not want you to fall asleep on me. In skipping down to your second question about the power to tax, I am once again holding up my little pocket Constitution.

Article 1 delegates the powers that are enjoyed by the legislative branch, by Congress, and in particular Article 1, Section 8. The very first clause of Section 8 reads, “The Congress shall have power to lay and collect taxes, duties, imposts, and excises.” That is the very first part of the first clause of Section 8 of Article 1. That power has been vested in Congress.

Over time, certain powers that Congress has passed laws allowing the executive department, under certain circumstances, to exercise these powers. It is not just specific to taxes. One of the cases, we’ve never discussed in details but I mentioned in passing previously, is the so-called Chevron doctrine, which delegated to executive agencies, in particular the EPA, to make certain decisions to regulate and control pollution.

The Supreme Court decided a couple of years ago that the statute that was being relied upon did not clearly delegate that power to the executive branch or the EPA. It comes down to, does the statute clearly do that? I will point out, and Justice Kavanaugh does this in his dissent, that numerous statutes grant the president the ability to impose tariffs on the importation of foreign goods. The very day that the opinion was handed down, the president held a press conference where he announced a ten percent tariff on all imports under section 122 of the Tariff Act of 1974.

As Roberts points out in his opinion, and as several other justices point out in their concurring opinions, when the power to lay taxes has been vested in the executive branch and the president is permitted to do this, in addition to the language being clear, saying that the president can impose tarrifs, the language also places a great deal of limitations on what the president can do. For instance, the 1974 Act, Section 122, sets a maximum tariff of twenty percent on the value of goods being imported.

This is probably why the president woke up and said it is not twenty percent anymore, it is twenty percent because that is the maximum amount he can impose under that statute. Here is the other thing, those tariffs can only be in place for 150 days. There is a time limit on the imposition of tariffs under that statute. The ability to tax, like many other congressional abilities, can be delegated.

Ultimately, this is where you get into the disagreements amongst the justices. The issue is what does the language have to say to delegate this power to the executive branch, not just to this president, but to any president? What you will find in Robert’s opinion is a lot of what he relies upon, saying, “Look, we have done this before.” He is relying upon cases that have been handed down in the past four years, where the very same court has set aside certain executive orders that were entered by President Biden before President Trump.

[bctt tweet=”The ability to tax, like many other congressional powers, can be delegated. But this is where the justices disagree. The issue is: What must the language say in order to delegate this power to the executive branch?” via=”no”]

One of those was Nebraska v. Biden, where President Biden tried to set aside student loans. The court said the statute you are relying on, the Heroes Act, does not clearly give you the power to do that. Ultimately, that is what the decision really relies upon. I would argue that it is an English lesson. What do these words mean? How certain are we that these words mean this or do not mean this? That is really what the entire opinion comes down to.

One of the things that is really good about this is that Roberts is saying the Supreme Court has already done this with Biden, so we are going to now do it with Trump. We are going to take a position, and we are going to make statements about what is taxable and what we can do with tariffs. One of the things that has been said in other write-ups about this case is that it has finally addressed the problem of grabbing so much power as president. This does limit his power to be able to use tariffs.

I have noticed in the writings that we have talked about a previous decision by the Supreme Court, early in Trump’s administration, that they gave him significant power. There has been a question about that case. Now it looks like they are taking the language and doing what they have done several times with Biden or anyone else, and are now clarifying and saying, “No, wait a minute. This is what your defined power is. It is not all these things that you have assumed.”

I apologize for interrupting. The one thing I will point out and that I want to make clear is that this decision does not take away from the president the power to impose tariffs, period. What the decision says is that the president cannot impose tariffs under this particular statute, the IEEPA. I agree with you that by taking away this power, I pointed out page three of the opinion of Chief Justice Roberts, that it has severely limited the ability of the president to impose tariffs.

As I was saying, the 1974 Act he is relying on even now has a twenty percent cap and a 150-day limit. Can he impose tariffs? If the statute gives him the specific grant of that power, yes, he can. He will not be able to impose the tariffs quite as broadly. He will not be able to change them quite as willy-nilly as he has done under the IEEPA or was doing under that statute before the court that said, “No, the statute does not give you the right to do this.” They did not say it is unconstitutional, what they said was that we are going to read the language of the statute, and the statute does not go as far as the government says it does.

One of the things that we as Americans need to face is that he has done significant, I will call it this, because I am the PhD in the group and I am the one who talks about social dynamics, I think one of the things that has happened is he does not have the right to manipulate the world economy with his tariffs. There are limits, and that’s what happens.

I will point out here, and this is not a legal issue, it was pointed out to me last week by one of my law partners that a report from the government issued last week reported that the trade deficit had in fact grown in the past year despite the tariffs being in place. Ultimately, these opinions were largely written before that report was released.

If the emergency that allowed the imposition of tariffs on countries other than Mexico, China, and Canada was an effort to balance the trade deficit, the intended purpose of the tariffs failed miserably. Not only did we not reduce the trade deficit year over year, but it has also actually grown at a greater rate over the past year. Not your PhD, but I do not think either of us has a PhD in economics, but I am going to rely on simple common sense.

In America, we consume at a far greater rate per capita than any other country in the world. Imposing tariffs is not going to really reduce substantially the number of Barbies we buy or the number of French wines we import. If we want it, we are still going to import it. If we consume more than we produce, we are still going to need to import. The stated emergency that this was attempting to treat, we are using the wrong medicine.

[bctt tweet=”If we consume more than we produce, we’re still going to need imports. So the stated emergency this was attempting to address was being treated with the wrong medicine. We were using Ivermectin instead of something that actually works.” via=”no”]

The thing that I have also read, and I think is true, is that Trump always tried to describe what these tariffs were going to do. It was going to lower the deficit, and it has not done that at all. It has increased it. The other thing was that he was trying to control the fentanyl coming in. He often argues that he is also trying to control the immigration process, and he ties the immigration process to this, which has nothing to do with this. It is like he is trying to build a case that the immigration problem he sees is somehow related to having an emergency. Therefore, he ought to be able to control Mexico, Canada, and China, and other places.

Ultimately, I am here to discuss the language of the statute with you. I would say that, from a practical standpoint, if we are trying to combat the importation of fentanyl into the United States, I do not know that that is something that is legally being imported. Imposing tariffs on a drug that is being smuggled into the country in fruits or vegetables or through tunnels, last I checked, Mexican cartels were not declaring and paying tariffs on illegal drugs. I am not sure what the statute did for that. I am not sure what the tariffs did to combat that either.

It was a justification for what happened. Now, I really like Gorsuch. I thought his opinion added to what Roberts had said. I thought Roberts brought up an issue that I do not understand at all, where Kagan and the other two do not support it. What does it mean, major questions doctrine? I do not understand what that is.

The Major Questions Doctrine Explained & Debated

That is ultimately the disagreement. That is why there is at least one part of Roberts’ opinion, Section 2A2, that only three justices join. Gorsuch’s opinion goes into the, I like the analysis of it, but I would argue it is almost a rebuke of the three liberal justices that join the 6-3 majority, as well as a rebuke of the three conservative justices that dissent. Gorsuch’s entire opinion focuses on exactly what you talked about, the major questions doctrine.

The idea behind the major questions doctrine is that if Congress wants to delegate to the executive branch one of the powers vested in them under the Constitution that is deemed to be a major power, then they must do so in clear and explicit language. That is the major questions doctrine. The three justices who do not join in that section, the analysis under the major questions doctrine, are Kagan, Sotomayor, and Jackson.

What Kagan does is she points out her argument that I think the major questions doctrine is a legal fiction. Ultimately, we are engaging in the interpretation of the English language. Can this statute reasonably be read to include the ability to impose a tax, to impose these tariffs on the import of foreign goods?

She goes through the language and makes it clear, and she relies a lot on what Justice Roberts says in his opinion in section 2A1, and that is that, given the separation and the other powers specifically granted in this statute, she cannot reasonably read it to include the power to impose tariffs on imported goods. She points out in her concurring opinion generally that this is not a major questions doctrine. This is an interpretation of the text, a textual analysis.

The three justices, Kagan, Sotomayor, and Jackson, view the major questions doctrine as a legal fiction that the court will use to sometimes meddle into and say, “No, this power has not been granted to the executive branch.” Yes, it has. They did that in the West Virginia case, where they said the Chevron doctrine no longer applied. We do not care that these experts of the EPA were not going to read the statute to delegate the authority to the executive branch.

They do so in this case as well. They did so with regard to the student loan forgiveness case, calling it a major question. What Kagan is really pointing out to Gorsuch is that she says, “I agree with your entire analysis, but I’m not going to call it the major questions doctrine. It is a simple statutory construction case.” I am going to go into commercial litigation, things that I deal with regularly. Quite often, we deal with contracts.

We deal with language where someone will decide or a court will decide it is ambiguous. By ambiguous, we mean it is possible to read it more than one way. It could be read to include tariffs and to not include tariffs. Under the major questions doctrine, essentially, what the court is saying is that even if both of these readings are reasonable, we think that this power that Congress has is important enough that it cannot just be a reasonable reading of the statute.

It has to be an unembarrassing reading of the statute. There can be no question when we read the statute that this power is included in it. What Kagan is saying is that I am not getting to that point because I do not even believe that the interpretation of the IEEPA that has been offered by the government is reasonable. We do not have an ambiguity here. The statute is unambiguous in not including the ability to impose tariffs on imports.

The language that they used, none of the opinions relied on this, and it is probably because they were focusing on the language of statutes and the interpretation of other statutes. The language of the regulation in the particular statute in question, the first clause of section eight of the Constitution, gives Congress the power to lay and collect taxes. The third clause of section eight in article one gives to Congress the power to regulate commerce with foreign nations.

Clearly, when the majority of our founding fathers crafted the Constitution, they saw regulating commerce as something entirely different from laying and collecting taxes, including tariffs. That is important, but again, none of the justices thought enough of it to mention it specifically. Gorsuch goes through what these other words in the statute allow you to do. None of those comes close to allowing you to tax. Has anyone else ever used this statute to impose tariffs on imports?

No, this statute or its predecessor has been around for years, and nobody else has ever read it this way. This is what I would call key interpretation. Justice Jackson, in her concurrence, says let us look at the legislative history. Let us look at the discussions. Let us look at the committee hearings. Nowhere in those committee hearings did anyone ever say this statute is going to give the executive branch the power to impose tariffs and imports. If it needs to do that to regulate international trade.

There are all these different ques, but ultimately all the different ques are being used to one thing in my opinion. That one thing, in my opinion is does regulate importation mean the ability to tax imports? The dissent says if the ability to regulate imports includes the ability to prohibit imports, then certainly the lesser power to tax is included. Different ways of reading the same language. What the majority is saying is that everywhere else where the president is given the ability to lay taxes on imports, the language is really clear and really specific, and here it is not.

That is a bridge we are not going to cross. Going back to Robert’s language, the term he uses is that it cannot bear the weight of the interpretation that the White House is trying to give to it. At the end of the day, it really is a high-level English lesson where three of them disagree on the meaning of the statute. The whole thing with the major questions doctrine is that even if these two interpretations of the statute are reasonable, we are going to say that for it to be read this way, it has to be unambiguous. It has to be clearer.

That is the layman’s meaning of the major questions doctrine. I tend to lean more toward Justice Kagan. You can call it the major questions doctrine if you want, but to me, it is a simple matter of statutory interpretation. This major question doctrine was not something that really began being mentioned until my lifetime. Given that the country is 250 years old, that is a really short timeframe for this to have existed.

I do not think it existed in the past. I think what we are getting here is a very definitive statement about what the executive branch has the right to do, and here’s what they do not have the right to do. I hope someday Congress will realize they have powers that they could utilize in order to support the people in America and provide us with the kind of government that we truly need, and not what’s happening now.

We hear about the court as being very conservative and that they have a traditional way of interpreting the Constitution. That’s what they were able to do with abortion and so many other things. That abortion word wasn’t in there. They had multiple cases where they eliminated that right based on their interpretations.

My question to you is, what is the objection Kagan is the objection they have to the major questions doctrine that some traditionalist judges seem to grab onto? Are they saying number one, it doesn’t exist? Number two, it doesn’t even present what we need to address in this opinion. That’s why Kagan, Jackson, and Sotomayor have been so clear about what they think the problem is. I’m just trying to understand so that my audience can hopefully understand too.

What Kagan is saying is that it doesn’t exist. If it exists, again, it would be something that could arguably, or at least for three justices, it does address the issues presented with this statute. What she’s saying is it doesn’t exist. When I talked about Gorsuch really calling out his colleagues for going in different directions on this particular judicial principle that the Supreme Court has, without getting into it, in fact, she says, “I’m not going to relitigate other decisions. We’re only here today to decide this one issue.”

There is certain language in those other opinions that these justices really latched onto or focused on in those opinions that I would say differentiates their interpretations or their readings. In, say, Biden v. Nebraska, under the HEROES Act, it gave the executive branch, the Secretary of Education, the ability to do what the Secretary deems necessary to confront the emergency. Kagan, Jackson, and Sotomayor saw that granting language was deemed necessary.

What the department, in its discretion, views as reasonable to deal with the granting language of those statutes, these three justices are reading that granting language to be broader and to allow for a reasonable reading of those statutes to include the cancellation of $40-something billion in student loan debt. That’s really what I would say those justices see the difference as.

Textual Interpretation Vs. Expansive Executive Power

This is just my opinion, but the opinion is based upon, again, what those justices did say in those other cases. Kagan doesn’t go into that. She’s basically not going to, I’m going to use my own analogy. She’s not going to follow Gorsuch down this rabbit hole. She says, “I’m here to decide this one case, this interpretation under this one statute.

For these reasons, many of which are in Justice Roberts’ opinion, I don’t see this statute as having a reasonable reading that allows the president to impose these tariffs.” To get back to your initial question and to answer it, I would say that what those three justices are saying and the reason they didn’t join in the five pages of the opinion by Roberts that discusses the major question doctrine is that they don’t view that doctrine as existing.

[bctt tweet=”What those three justices are saying—and the reason they didn’t join the five pages of the opinion by Chief Justice Roberts discussing the major questions doctrine—is that they don’t believe the doctrine actually exists. ” via=”no”]

You guys can call it what you want, but it’s not a real legal principle, and we’re not going to adopt it because we don’t have to. Again, I talked about Robert’s opinion being twenty pages in a paragraph, the reality is that the sixth judge majority is only about 15 to 16 pages of that opinion. We’ve got a hundred and fifty-five pages of just dicta, which is what we call it legally, but a bunch of words that really have no meaning or no effect.

The key thing is that Kagan came down to what the real issue was about the act that the president was using to do all these wild tariffs that he did. We have a situation where she’s saying, no, here’s where it lasts. Here’s what the administration can do. There’s a limit on tariffs, it’s twenty percent. There’s a limit on the number of days they can have the tariff in effect.

The other thing I know is, and I’ll go back to this and say it a second time, and then I’ll move on. It has done nothing and has nothing to do with fentanyl. It has nothing to do with immigration. It has nothing to do with managing the import or export that happens in our country. What I want to do in these show with your help, which I’m very grateful for, and the other ones I do, is to say, this is the truth, people.

This is not what you’re hearing, as people try to justify what they’re doing. I want to ask you something. When else do you think that we need to say so that everybody will understand exactly what has been presented in this case, which is helpful to us as Americans, who are 78 million of them who did not vote for Trump. Some of us sitting in America, we want to see the rule of law. Tell me, as a lawyer, how do you see that the rule of law has really been established in the various interpretations of six people? You can only do two of them or something if you’d like.

First off, with the rule of law, again, I’ll go back to where I started. At the end of the day, all we’ve done is interpret a single statute and say it doesn’t include the ability to impose these tariffs. Now, with regard to the broader scale of it, there are two things that I would mention. One of them is practical, but it has to do with the law.

The judiciary, the third branch of government, the president imposed these tariffs, not quite a year ago, and in that intervening time period, as several of the justices point out, the government has collected billions of dollars, and the tariffs ultimately were used as leverage to facilitate new trade deals with other countries.

From a practical standpoint, the judiciary took ten months to act and say, “No, you can’t do this under this statute.” As we saw on Friday, the president took about ten minutes to impose tariffs under another law that allows him to do so. Even if it is not the same level of tariffs he was imposing under the IEEPA, he nonetheless imposed tariffs under an existing statute that is mentioned by Justice Kavanaugh in his dissent. Other statutes are mentioned by Kavanaugh in his dissent.

Arguably, I would say the White House right now is probably starting with Kavanaugh’s dissent to say, “What statutes can we rely upon to put more tariffs in place?” They’re probably looking for other laws aside from those Kavanaugh mentioned that they might be able to argue will allow them to impose tariffs. Each time they do this, I read the other day that apparently someone at the Cato Institute had offered the opinion that the tariffs Trump is imposing now under the 1974 Tariff Act are probably not legal.

As was pointed out, the Cato Institute is a liberal bastion of think tanks. For those who don’t know any better, it’s more on the conservative side. That might be an understatement. One way or the other, the point that was being made is that for someone to have the standing, the ability to file a lawsuit, they’re going to have to first pay these tariffs that many people already think are illegal. They’re going to have to go to the Court of International Trade again.

You’re going to have a decision on that again. You’re going to have a direct appeal to the Supreme Court again. Ten months to a year from now, which, mind you, unfortunately, is lightning speed in the practice of law. Everything doesn’t happen in an hour as it did on Ali McBeal. We might have a decision saying the other statute is not legal either. This touches on something you and I discussed privately before the decision came down.

[bctt tweet=”Ten months to a year from now—which, unfortunately, is lightning speed in the practice of law—we might have a decision saying the other statute isn’t legal either.” via=”no”]

Practical Consequences: Refunds, Enforcement, & Judicial Limits

I was telling you that I thought it would be a 7-2 or 6-3 decision, saying that the statute doesn’t allow tariffs. That was based upon my readings of some of the questions the judges were asking. The one judge that I thought might go either way was, in fact, Justice Kavanaugh, or the one justice was Justice Kavanaugh. As I’ve mentioned in one of the prior episodes, Kavanaugh seems to take a practical approach and look at what the impacts of my decisions are going to be.

That seems to weigh heavily on him in the Three Justice dissent. On page six of the dissent, he points out that the government may be required to refund billions of dollars to importers who paid the tariffs, even though some importers may have already passed those costs onto consumers like you and me. The language he uses is that this refund process is likely to be a “mess.” He uses the same language.

I want to say later on, in his opinion, page 60, something of his opinion, he again refers to the upcoming refund process as a mess. One of the things that weighs on him is that he really does take a practical approach to what the ramifications are, what the effect of this is. That also creeps through. This is just my opinion, in that he’s giving other statutes that the executive branch can nonetheless rely on to impose these tariffs.

It’s almost as if he’s saying, “Why are we even going to do this? The White House can still impose tariffs under these other laws.” I’m not even sure that the government is equipped to effectively and appropriately handle these refunds, given that the importers have already recouped their money by passing it on to the distributors that they were selling the products to, who ultimately passed on that very cost to you and I. Coffee isn’t 5.99 a pound anymore when you’re getting it from Colombia.

[bctt tweet=”It’s almost as if you’re saying, “Why are we even going to do this if the White House can still impose tariffs under these other laws?”” via=”no”]

It costs a little more now. Again, we’re delving into economics in discussing that practical effect. That would be the one criticism I would have of just as Kavanaugh joining in the dissent is if you’re letting the practicalities of the decision weigh on this, I’m not sure that’s something you should be engaging in when you’re supposed to be simply construing the text of the statute. Though he then goes on to try to justify why this particular text allows tariffs, as I mentioned to you previously, what if they can ban imports, and certainly the lesser power of imposing a tax on those imports should be included.

I tend to disagree with that, but again, ultimately, what it comes down to is the practical effect of this ruling. That’s going to be the big thing that I think most people will be talking about and focusing on now. Here’s another thing with the law. It’s called ex post facto after the fact. You cannot go, the White House cannot go back now and say, “In the past ten months, we really meant to impose these tariffs under this law. We don’t have to refund any money.”

We talked about that with regard to the indictments that were handed down against James Comey, that you can’t go back and rely upon another statutory power. That’s not the power that was used to make the initial appointment. You can’t go back and say, “No, this is what we mean now.” It’ll be the same way with the statutes here. Even if they can do it going forward, there’s still the issue with the refunds and to whom the refunds are going to be paid.

Ultimately, what it comes down to is it’s going to be a windfall for the importers that have already passed this cost on to you and me. That’s really how I think it’s gonna work out, is they’ve already absorbed the cost and passed it on down the line. Now they’re going to get the benefit of getting the money back because it was collected from them illegally.

Again, on the legal end of it, I’m touching on the practical effect, but the legal end of it. In that regard, I’ll point out another thing, because I was indicating I didn’t agree with one of the other things that Kavanaugh says in the dissent, which is, “We shouldn’t apply the major questions doctrine, requiring the clear and specific language when we’re dealing with international law, because the ability to enter treaties. These international powers, many of which are vested with the executive department.”

The language that I’m pointing out that I read from page six ultimately shows that the imposition of the tax was not an international power. It was a national power because, despite what the White House may say about who was ultimately paying these tariffs, it was not the manufacturers and producers in China, Mexico, Canada, or Malaysia.

It was ultimately when the importer received the goods that the importer then had to declare where the goods were from, what the value of the goods was, and the importer, a US company, then had to pay these tariffs. I find the argument that this is international, I find that argument difficult to swallow, given that the tax was imposed on a domestic importer for bringing the goods in internationally. Might it have had an effect on overseas producers? Maybe, but ultimately the question is who is paying the tax, and who in this part is not the foreign manufacturer, it is the US importer.

It’s the US importer, then you and I paid the ultimate tax that these tariffs imposed.

It doesn’t show up on the bill like a sales tax. As I said, if people want to wonder why coffee costs so much more for the past year than it did in 2024, I’m sure it isn’t a massive increase in the wages paid to the men and women who are picking the coffee beans. It’s a reflection of the tariffs on those coffees that were being imposed on whatever country the beans were being imported from.

The thing that I think is really important to realize is which one, Costco or Sam’s, decided that they were going to put how much the tariff was.

Sam/Walmart.

They were gonna put out what it really costs. Of course, they got reprimanded extensively, and there were threats, and there were all kinds of things. One of the things I happened to have fallen and broken six ribs on the right-hand side. I have been using the cloud Kloud from Cineplex. Cineplex is in Liechtenstein.

I can tell you right now that when I talk to my customers in America and they ask me about the cost of it, I say to them, and part of that is a tariff, and they look at me with great dismay that it may be $350, it may be $689, and they say, “That’s the tariff I’m going to be paying because of what has been done.” I do have an opportunity now to say to people, “Wake up to what these tariffs have done.” It’s been an amazing thing for me to talk with people, no matter what political party they’re in, and I didn’t realize that.

You’re small enough that, unlike Walmart, the weight of the government is not going to be threatened upon you.

They may after they hear my show, but here’s what I want to do. Richard, I am going to offer to my audiences, as I always do, references. I’m going to give them several references. I’m going to give a very short one from Forbes because they talk about what Kagan’s talking about, the mess it’s going to take to straighten out paying these things back. I want to go to one of the articles. I have two others besides the one I just mentioned.

I want to go to an article in the New York Times, and I want to go to a specific article by David French because he is the title of his article is, Is This The Most Important Supreme Court case of the century? I know that’s what he’s saying, but what I like about his paper is that he brings up three points that I think people are totally unaware of, which have been the impact. I’m trying to do something and say, “I can’t have enough, you can do this, I can do this, and I can show you as an American what the impact has been.”

His first point, Richard, is that the court blocked a monumental presidential paragraph, one so big and so bold that it threatened the foundation of our constitutional system. The Chief Justice’s opinion hung on a legal principle called the major question doctrine. Doctrine, the same doctrine that was used repeatedly to block Biden’s administration concerning regulations and orders. It goes into what you’ve done an extensive thing with Gorsuch, but it’s stating you cannot use the words regulate and importation.

They aren’t precise enough to grant the presidential extraordinary powers that they did. I’m building a case through French and saying he supports a lot of the things that we’ve talked about. The second thing, though, he brings out is that he said, “It’s the most important aspect of a court’s decision is that it may help restore faith in how courts make decisions. The crisis in American democracy is simply a product of the Trump administration’s overreach.

Broader Democratic Implications: Rule Of Law, Public Trust, & Corruption Concerns

It is also a product of deep public cynicism about the government.” Now, Trump benefited from the cynicism about the government, but as a result, millions of people wonder. Do principles really matter? Is it all of politics merely a matter of gaming and wielding power, supporting your friends and crushing your enemies?

The tariff decision is a reminder that principles do still matter, that at least one branch of the government is not enthralled and is controlled by the president, and that we can rely on reason and precede precedent to decide cases rather than simply counting Republicans and Democratic appointees, and he’s confronting the Congress in what they have not done. The third point that French does, and I don’t think this is at all clear in any of the legal opinions. He says, “The third is less obvious, which is that the court’s decision helps preserve the republic by limiting opportunities for corruption.”

By assuming vast powers of taxation, Trump made himself the focal point for an enormous amount of lobbying and trading favors. In January, for example, Politico reported that the twenty largest lobbying firms raked in nearly $824 million in revenue in the first year of Trump’s second term. Asharp increase from $595 million in Biden’s last year. The administration has sent a message loudly and clearly, almost anything is for sale at the right price.

The ProPublica report last April. Politically connected people and companies were already benefiting from what appeared to be targeted relief from Trump’s tariffs. The reason I’m doing this and I’m going to provide these documents as well, or the references, is because I think we go far beyond the legal interpretations that we have here, and we have to stop denying when these things happen that something much larger is occurring than just an action by the president or a lack of action by Congress.

Now that’s your turn, and you and I have different ways of viewing things. If you would like to comment on anything I’ve said, I’ll look forward to it because we’ve been friends for years. We have been in different parties at various times, and we tend to have the same value structure, which is honesty and a belief in integrity. Please, if you have any comments, I’ll listen to those, and we’ll have a short discussion, and then we’re going to end this show.

I’ll weigh in on this, and this will probably be a good place to end it. I’ll have three things in response to what you’ve pointed out in particular with French. One, I’m going to go back to it and say the case does not hang on the major questions doctrine. You only had three judges in the majority deciding it on that. To me, the case hangs on a simple issue of the English language and statutory construction. Two, whatever other effects French touches upon, those would be side effects of this statutory interpretation matter.

I agree that perhaps by seeing three conservative justices make up the majority with the three perceived liberal justices on the court, that will help with people’s opinions of the courts for the time being, for how long we will see. The third thing, and this is where I’m really going to bring everybody down with the what now is, in relation to all of the lobbying and the favor trading and everything else, we’ve already touched upon this.

There are other statutes that are still going to allow the president to impose tariffs. Even if he’s doing it improperly and it is not something that’s permitted under the statute, it’s going to be ten months to a year on the fast track before the court will weigh in and say, “No, you can’t do this.” The other problem, and this goes back to the old Andrew Jackson phrase, is that’s what they’ve said.

Now let them act on it. The judiciary branch, unfortunately, doesn’t have any enforcement powers. The idea behind the framers was that the judiciary branch would weigh in and tell us what we could do, and we would then do it. That is ultimately the problem, given the glacial pace at which the judiciary moves, and the rapid-fire pace at which the executive branch moves, regardless of who’s in control, it’s going to take time to undo these things.

[bctt tweet=”The judicial branch, unfortunately, doesn’t have any enforcement powers.” via=”no”]

Once again, it’s going to be a situation of playing whack-a-mole. The White House can’t use IEEPA, so now they’re using the Tariff Act of 1974. Now they’re using some other tariff. Now they’re using some other statute regarding international trade that they’re arguing allows them to impose tariffs. I’m not sure long-term what the ramifications will be beyond the government having to sort out how much needs to be refunded and where the money is going, unfortunately.

I want to tell you, I support what you’re saying. This is the one thing I’m going to say. In the November elections, we have the right to make decisions about the people that are representing us. We have the right to speak out and say, “I don’t support the corruption. I do not care whether we support the major question doctrine or not, whatever it is. I just know that I am going to support the rule of law.

When we have an opinion like Kagan, and also Roberts, and six judges support, then we have some movement in the right direction. The changes though are going to be very slow and it’s gonna take a lot of time and it’s going to take a lot of us supporting our constitution, believing in the rule of law and believing that in our right to vote, we have the right to have a voice and speak out against what we do not like and support what meets our values.

That’s the way I’m going to end it. I appreciate all the detail, all the work you do. Please know it takes Richard a lot of time to read all this and really get an expert in presenting it to you. Not only that, but he has to highlight things for me so I can have some understanding, and then I go seek them out. We are doing our best that we can to provide as many views as possible.

I hope you’ve enjoyed our episode. I hope you will think about what we’re saying and start paying attention to what the courts are doing, as well as what the executive branch is doing, and then the lack of action in Congress. I hope we will see a difference because I believe in the balance of power, and I think you’d believe that too. Thanks much, Richard.

Important Links

About Richard Wilson

Richard Wilson is a veteran trial and appellate lawyer. His practice emphasizes the defense of professionals in federal and state courts, and before disciplinary agencies.

For over 20 years, Richard has focused on representing lawyers directly and on behalf of lawyers’ professional liability insurers.

During that time, he has defended and advised hundreds of lawyers and law firms against legal malpractice claims and professional ethics complaints.

His experience as a trial lawyer and with the law of lawyering has enabled him to both counsel and protect his lawyer clients when they find themselves parties instead of advocates or counselors.

KERR WILSON, P.C. 16676 Northchase Drive, Suite 450 Houston, Texas 77060 (281) 260-6304

EDUCATION

University of Texas at Austin, J.D., 1995
Louisiana State University, B.S., Finance, cum laude, 1992

BAR ADMISSIONS

State Bar of Texas
U. S. District Courts for the Eastern, Northern, and Southern Districts of Texas
U. S. Court of Appeals for the Fifth Circuit

PROFESSIONAL EXPERIENCE

Kerr Wilson Shareholder Houston, Texas 2008 – present

Represented clients in breach of contract, tort, employment, and insurance cases
First chair trial experience
Lead counsel in multiple appeals in both state and federal appellate courts
Advisor for small and mid-sized businesses in the energy industry
Responsible for all facets of managing and operating a law office

McFall, Breitbeil & Shults Associate & Shareholder Houston, Texas 2001 – 2008

Represented clients in breach of contract, tort, employment, and insurance cases
First chair trial experience
Lead counsel in multiple appeals in both state and federal appellate courts
Established the budget, managed litigation, identified corporate objectives, retained local counsel and experts, and tried complex cases that were pending in multiple jurisdictions

Chamberlain, Hrdlicka, White, Williams & Martin Associate Houston, Texas 1997 – 2001

Hirsch, Robinson, Sheiness & Glover Associate Houston, Texas 1995 – 1997

ACHIEVEMENTS

First chair jury trials in professional liability, breach of contract, insurance, trade secret, and personal injury cases
Appeals to the Fifth Circuit and Texas appellate courts
AV Rated by Martindale-Hubbell

PUBLISHED CASES

Blair v. Fritsch, 608 S.W.3d 407, 414 (Tex. App.—Houston [1st Dist.] 2020, pet denied)
Webb v. Crawley, 590 S.W.3d 570 (Tex. App.—Beaumont 2019, no pet.)
O’Hern v. Mughrabi, 579 S.W.3d 594 (Tex. App.—Houston [14th Dist.] 2019, no pet.)
Sheller v. Corral Tran Singh, LLP, 551 S.W.3d 357 (Tex. App.—Houston [14th Dist.] 2018, pet. denied)
Kelly v. Nichamoff, 868 F.3d 371 (5th Cir. 2017)
Stallworth v. Ayers, 510 S.W.3d 187 (Tex. App.—Houston [1st Dist.] 2016, no pet.)
Galindo v. Prosperity Partners, Inc., 429 S.W.3d 690 (Tex. App.—Eastland 2014, pet. denied)
Graper v. Mid-Continent Cas. Co., 756 F.3d 388, 390 (5th Cir. 2014)
Allstate Tex. Lloyd’s v. McKinney, 964 F. Supp. 2d 678 (S.D. Tex. 2013)
Glattly v. Air Starter Components, Inc., 332 S.W.3d 620 (Tex. App.—Houston [1st Dist.] 2010, pet. denied)
Willbros RPI, Inc. v. Continental Cas. Co., 601 F.3d 306 (5th Cir. 2010)
Duerr v. Brown, 262 S.W.3d 63 (Tex. App.—Houston [14th Dist.] 2008, no pet.)
Digges v. Knowledge Alliance, Inc., 176 S.W.3d 463 (Tex. App.—Houston [1st Dist.] 2004, no pet.)
Bauer v. Texas, 341 F.3d 352 (5th Cir. 2003)
King v. Dallas Fire Ins. Co., 85 S.W.3d 185 (Tex. 2002)

PUBLICATIONS

Author, From Advocate to Party – Defenses for Lawyers Who Find Themselves in Litigation, 61 LAW REVIEW OF SOUTH TEXAS COLLEGE OF LAW 43 (2020)
Author, Policy Benefits- Are They Recoverable Under Extra-Contractual Theories When A Covered Claim is Denied?, JOURNAL OF TEXAS INSURANCE LAW, Volume 12, Issue 5, at 17 (cited by the Texas Supreme Court in USAA Texas Lloyds Co. v. Menchaca, 545 S.W.3d 479, 487 (Tex. 2018))
Author, The Additional Insured, an update of recent developments in Texas focusing on additional insured clauses and indemnity agreements
Co-author, Recent Legislation Concerning Attorneys, Texas Lawyers’ Insurance Exchange Newsletter
Panelist, Occurrence-Innocent Insured Pays Price for Guilty Third Party? Presented to the Insurance Practice Section of the State Bar of Texas

REPRESENTATIVE EXPERIENCE

Successfully defended an attorney in a two-week trial in federal court against fraud claims based on representations made during negotiations for the purchase of a multi-million-dollar interest in an oilfield services company.
Defended one of the world’s largest insurance brokers in a malpractice and breach of fiduciary duty case. This was one of the first cases to go to trial concerning broker duties related to the failure of Reliance. I obtained a take nothing judgment for the broker.
Defended an oilfield services company in a catastrophic injury case where the client destroyed the key piece of evidence after the accident. After a week-long trial, the jury returned a finding of minimal liability and damages against the client.
After a month long trial, obtained a take nothing judgment for a manufacturing company in a misappropriation of trade secrets case. Represented that client and several co-defendants in the appeal, and successfully reversed an unfavorable verdict against the co-defendants.
Successfully defended a liability insurer in a bad faith and Texas Insurance Code case concerning damages to a major pipeline. Obtained a summary judgment in the client’s favor, and persuaded the Fifth Circuit that the client’s coverage position was correct on appeal.
Represented an employer in an insurance coverage dispute all the way to the Texas Supreme Court, and persuaded the Texas Supreme Court to recognize coverage for the employer when an employee has committed an intentional act.
After being hired by a probate judge to defend him, successfully obtained the dismissal of a suit against him and on appeal defined the judicial immunity available to courts in Texas.
Obtained summary judgment for a law firm sued for malpractice over its handling of Sulzer implant cases. The summary judgment was affirmed on appeal.