Mark Levin was brutally honest on Friday morning after the Supreme Court handed down its ruling against President Donald Trump's tariffs under the International Emergency Economic Powers Act. Levin called the majority decision “very messy and problematic,” and that might be the charitable read.
The core of Levin's criticism is that the majority agreed on a result but couldn't agree on why. That’s actually a pretty big problem.
Courts are supposed to provide clarity, not just outcomes, and when the justices split on reasoning while uniting on a conclusion, the law they leave behind is a legal minefield. Making matters worse, the court struck tariffs under a single statute while leaving the fate of the revenue those tariffs already generated, which is now sitting in the Treasury, entirely up to the president to sort out. Messy doesn't begin to cover it.
Levin had seen this coming. He'd warned that if the court moved in this direction, it would face a fundamental dilemma it wasn't equipped to resolve. Tariffs aren't just taxes in the abstract sense. They touch foreign policy and affect national security. Presidents have deployed them for exactly those purposes for generations. So the real question before the court wasn't a simple matter of who holds the taxing power. It was something far more complicated: Where, exactly, does Congress's power of the purse end and the president's foreign policy authority begin?
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The majority's answer, apparently, was to not answer that question at all. "The majority, apparently, chose to duck the question and stick with the indirect tax characterization and focus on a single statute, which is outrageous," Levin said. "It could not figure out how to bifurcate the Congress's power of the purse from the President's foreign policy powers, so it redefined the issue to reach the outcome — and even then, they argued over the rationale."
Levin laid out three specific ways the ruling makes things worse rather than better. First, there's a glaring inconsistency that the court conveniently ignored. If only Congress could raise taxes, even indirectly, then how does the entire federal regulatory state justify itself? Executive agencies impose indirect economic burdens on Americans every single hour with minimal oversight or accountability. Congress delegated that authority, but Levin argues it never had the power to delegate legislative and taxation authority in the first place. He traces that principle all the way back to John Locke's Second Treatise on Government. The court, he points out, is perfectly comfortable with that arrangement because it has made its peace with the massive welfare state that depends on it.
Second, the ruling's practical scope is narrow, and perhaps intentionally so. The president may still have authority to raise or cut tariffs under other statutes, but Levin predicts those will be challenged immediately. Essentially, the court solved one fight by setting up a dozen more. "The court succeeded only in creating confusion going forward," Levin concluded.
Third, and most damning, the majority claimed it wasn't wading into policy. Levin's not buying it. "Since the court foolishly decided to get involved in this matter, even though the majority states it is not getting involved in policy, it has gotten into policy, and it has not drawn a clear line on separation of powers because it cannot, and it created a terrible mess — both legally and economically."
That last phrase says it all. The justices stepped into a high-stakes constitutional dispute over executive power, trade policy, and national security — then left without drawing the line they were there to draw. What they've handed the country is a ruling that resolves the narrowest possible version of the question before them, dodges the hard stuff, and leaves presidents, Congress, courts, and markets guessing about what comes next. So we are left, as Levin put it, with "even a worse ambiguity."
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