Justice Thomas Issues GLARING Dissent – Slams Colleagues!

When Supreme Court Justice Clarence Thomas wrote his tariff dissent alone, he proposed a constitutional theory so radical that even his conservative allies refused to join him—and what he envisioned could have fundamentally reshaped the balance of power in American government.

Story Snapshot

Supreme Court struck down Trump’s $133 billion emergency tariffs 6-3, ruling the President lacked clear congressional authorization
Justice Thomas dissented solo with a novel theory: nondelegation doctrine applies only to rules affecting life, liberty, or property—exempting tariffs and vast economic powers from congressional oversight
No other justice joined Thomas’s separate opinion, including conservative allies Kavanaugh and Alito who filed their own dissent on different grounds
Thomas’s theory would create near-monarchical presidential power in foreign trade and economic regulation, alarming constitutional scholars across the spectrum
The decision reaffirms Congress holds tariff authority under Article I and constrains future presidential use of emergency economic powers

Thomas Stands Completely Alone

Chief Justice John Roberts authored the majority opinion blocking Trump’s unilateral tariffs under the International Emergency Economic Powers Act, finding the President must identify clear congressional authorization to exercise such extraordinary power. The 6-3 decision invalidated tariffs totaling approximately $133 billion. While three conservative justices dissented, Thomas filed separately from Kavanaugh and Alito, advancing a constitutional framework that would exempt entire categories of presidential action from the nondelegation doctrine. His isolation proved telling: Justice Neil Gorsuch, who typically shares Thomas’s skepticism of administrative power, reportedly criticized the dissent sharply.

A Theory That Alarmed Even Allies

Thomas argued the nondelegation doctrine—which prevents Congress from delegating core legislative power to the executive branch—applies only when rules affect life, liberty, or property as understood through the Due Process Clause. Under this framework, tariffs and foreign trade regulation fall outside constitutional constraints requiring clear congressional authorization. The Cato Institute characterized the position as creating a dangerous form of near-monarchical presidential power that would run roughshod over constitutional text and original meaning. SCOTUS Blog emphasized no other conservative justice shares this robust view of presidential power, despite general sympathy for reviving nondelegation constraints on the administrative state.

Congress Designed IEEPA as a Leash, Not a Blank Check

Historical context undermines Thomas’s interpretation. Congress enacted IEEPA in 1977 specifically to constrain presidential emergency economic powers after the World War I-era Trading with the Enemy Act became a vehicle for expansive peacetime regulation. Legislative history explicitly emphasized establishing clear standards and better accountability. When Congress intends to delegate tariff authority, it uses precise language—as seen in Section 232 authorizing the President to adjust imports through duties or import restrictions, and Section 301 granting authority to impose duties or restrictions on imports. IEEPA contains no such explicit tariff language.

Lower Courts Unanimously Rejected the Power Grab

The Court of International Trade struck down the tariffs in May 2025, and the Federal Circuit affirmed en banc in August 2025. Both courts found that regulating importation means controlling whether and how goods enter the country, not setting tariff rates at presidential discretion. The Trump administration conceded it possessed no inherent constitutional authority to impose peacetime tariffs, resting entirely on statutory interpretation of IEEPA. This concession proved fatal: without explicit congressional delegation, the extraordinary power claim collapsed. The Supreme Court majority embraced this reasoning, applying the major questions doctrine requiring Congress to speak clearly when delegating significant authority.

What Thomas Would Have Unleashed

Thomas’s framework would fundamentally alter separation of powers. By exempting regulations not directly affecting life, liberty, or property from nondelegation constraints, vast swaths of presidential authority in foreign affairs, national security, and economic policy would escape meaningful congressional oversight. The theory contradicts Article I’s explicit grant of tariff power to Congress and the Founders’ careful distribution of powers across branches. Constitutional scholars noted the approach could extend beyond tariffs to environmental regulation, financial oversight, and trade policy—anywhere the President claims authority doesn’t directly affect individual rights. This represents not conservative judicial restraint but radical expansion of executive power.

The Kavanaugh Dissent Took a Different Path

Kavanaugh and Alito dissented on narrower statutory grounds, arguing IEEPA’s language, history, and precedent authorize tariff authority and the majority’s analysis was exceedingly weak. They maintained that regulating importation has historically encompassed tariff authority and that reading the statute in context permits the challenged tariffs. This represents traditional conservative deference to executive foreign policy discretion within statutory bounds. Yet even this dissent rejected Thomas’s constitutional theory, focusing instead on whether Congress already delegated the authority through IEEPA’s existing language. The split among dissenters revealed how isolated Thomas’s position stood.

Practical Consequences for Presidential Power

The decision blocks Trump’s $133 billion tariff program and constrains future presidents from using emergency powers for economic policy without explicit congressional approval. Trade relationships with affected countries may stabilize as the threat of unilateral tariff escalation diminishes. Importers and consumers benefit from invalidation since tariffs increase prices on imported goods. However, Congress retains authority to amend IEEPA or pass new legislation explicitly delegating tariff powers if it chooses. The ruling applies the major questions doctrine without fully reviving nondelegation as a robust constraint on all delegations, taking a measured approach that requires clear authorization for extraordinary powers.