The Right Argument, But The Wrong Statutory Box: Justice Kavanaugh’s Dissent in Learning Resources Inc. v. Trump

Introduction:
On February 20, 2026, the Supreme Court struck down President Trump’s tariffs in Learning Resources, Inc. v. Trump. The financial fallout of the decision may be staggering, as in the wake of the decision, the US may be required to refund billions to importers who paid tariffs imposed under the International Emergency Economic Powers Act (IEEPA), which the President so boldly utilized in his controversial economic tariffs plan enacted in early 2025. Moreover, trade deals with China, the UK, and Japan, worth trillions of dollars, now hang in the balance, with rather uncertain futures. Justice Kavanaugh — joined by Justices Thomas and Alito — filed the principal dissent, with Thomas also filing a separate dissenting opinion.

Case Question & Procedural History:
The case, and Kavanaugh’s dissent, stand on a particularly narrow statutory question: does Congress’s explicit grant of authority to the President in IEEPA to “regulate…importation” of foreign goods in a declared national emergency, authorize him to impose tariffs? While the Court majority has said no, Justice Kavanaugh — rather emphatically — argues yes.

In early 2025, President Trump’s declaration of two national emergencies — one targeting drug trafficking and the other addressing trade imbalances — took both national and international stakeholders by stark surprise. The declarations, made under the National Emergencies Act, invoked IEEPA’s authority to “regulate…importation” to impose tariffs on a wide range of countries. In response, importers sued, arguing that the statute simply doesn’t cover the power to enact tariffs.

The case originated as two separate cases filed in mid 2025 and was later consolidated in September before appearing before the Court. Learning Resources, Inc. v. Trump came to the Supreme Court on a writ of certiorari before judgment from the DC Circuit Court of Appeals after the issuance of a preliminary injunction. Simultaneously, V.O.S Selections, Inc. v. Trump worked its way from the Court of International Trade and was affirmed by the federal circuit, where Judge Richard Taranto dissented from the en banc court’s decision striking down the tariffs. Justice Kavanaugh’s opinion echoed that of Judge Taranto’s and notably endorsed the dissent’s analysis.

The Arguments:
Justice Kavanaugh characterizes the administration’s argument as grounded in text, history, and precedent. Notably, his dissent does not evaluate the legitimacy of the declared national emergencies under the National Emergencies Act, but rather assumes their validity and focuses solely on whether IEEPA’s “regulate…importation” language encompasses tariffs. IEEPA — enacted in 1977—was directly derived from the Trading with the Enemy Act (TWEA), authorizing the President to “regulate…importation” in 1941, following the Second World War. 30 years later in 1971, when President Nixon imposed a ten percent tariff on virtually all foreign imports, nearly identical language was utilized to defend the policy in United States v. Yoshida Int’l Inc (1975), argued in the U.S Court of Customs and Patent Appeals. Moreover, a year prior to IEEPA’s enactment, in Federal Energy Administration v. Algonquin SNG, Inc. (1976), the Supreme Court unanimously upheld President Ford’s monetary exactions on oil imports; here, the Court held that the statutory phrase “adjust the imports” — nearly identical to IEEPA’s “regulate…importation” language — authorized the implementation of tariffs, even without the explicit language. Justice Kavanaugh asserts that Congress enacted IEEPA with full comprehension of this context — as he puts it, “[Congress] surely would not have enacted the same broad ‘regulate…importation’ language that had just been used to justify major American tariffs on foreign imports.”

The plaintiffs make the claim that the language implies authority only over non-monetary tools like embargoes and quotas, but excludes tariffs. The Court’s six-justice majority all agreed on the core statutory holding that “regulate…importation” does not encompass tariffs; however, they remained splintered on the major questions canon, which demands “clear congressional authorization” for executive actions of major economic and political significance, with only Justices Roberts, Gorsuch, and Barrett agreeing to invoke the doctrine. While Justices Kagan, Sotomayor, and Jackson agreed on the result, they refused to turn to the doctrine, finding that the ordinary statutory interpretation sufficient.

In his dissent, Justice Kavanaugh challenges both. Diving into the textual question, he offers a two-pronged explanation: first — and long established by Chief Justice Marshall, Justice Story, and James Madison — the constitutional power to “regulate” foreign commerce has always encompassed tariffs. Kavanaugh asserts that if “regulate…importation” is the power to regulate foreign commerce with respect to imports, then tariffs are plainly encompassed in the authorization asserted by IEEPA. Shifting to the major questions doctrine, Kavanaugh argues that it is inapplicable for two independent reasons. First, he contends that tariffs under IEEPA were not an “unheralded” or “newfound” power, as clearly evidenced by the Nixon tariffs and Algonquin. Second, the Court has no history of applying the major questions doctrine in the context of foreign affairs, and has no reason to start now — pointing to the Justices having “a thumb on the scale against the President.”

Moreover, the logistical pressure point Justice Kavanaugh’s dissent so forcefully excavates is hard to shake: the plaintiffs and the Court acknowledged that IEEPA grants the President the power to impose quotas or total embargoes; even so, they claim IEEPA simultaneously prohibits the far lesser measure of imposing even a $1 tariff on those same imports. Kavanaugh pinpoints how “Neither the plaintiffs nor the Court today offer a good answer to that question.” “Understandably so,” he says, “because there is no good answer.”

Implications:
The immediate practical consequences of the decision are a strong point of contention for Justice Kavanaugh, highlighting the “mess” that refunding billions in collected tariffs would ensue, especially since consumers have already borne the brunt of importers’ consequences. Moreover, the long-term impact on executive power is less dire than headlines are suggesting. Kavanaugh underscores the other statutes — the Trade Expansion Act of 1962, the Trade Act of 1974, and the Tariff Act of 1930 — that authorize the President to impose tariffs under a variety of circumstances. In so doing, Kavanaugh seems to suggest the Trump administration may have invoked the wrong statutory authority, but still has various viable statutory avenues to pursue — it may have checked off the wrong box, but there are other boxes.

Conclusion:
Kavanaugh’s dissent reads as the stronger statutory argument, with a historical record that’s rather unambiguous: Congress re-enacted IEEPA’s “regulate…importation” language knowing full and well that it had just been utilized to back Nixon’s worldwide tariffs, one year after Algonquin unanimously held that nearly identical language covered monetary exactions. Moreover, the application of the major questions doctrine in the foreign affairs context — breaking a longstanding pattern of not doing so — was in itself a major shift that deserved a deeper explanation than the Court gave; so whether this ruling is a ticket only good for one train, or the beginning of broader doctrinal shift in the Court, is the question to watch out for as the Court moves forward with its brimming and contentious 2026 docket.