I predicted on April 7th, that most of President Trump’s tariffs would be stricken down as unconstitutional. Different federal courts have been doing so in the past week. The law cited by the Administration to justify the tariffs doesn’t mention tariffs, and the constitution clearly gives Congress and not the President the power to impose tariffs. It is unlikely the Supreme Court will decide in favor of Trump’s claim that a “national emergency” gave him the right to impose tariffs. (This analysis does not apply to tariffs imposed following laws that authorize tariffs.)
Also, tariffs affect large numbers of American businesses and consumers with dramatic effects on the economy.
The Supreme Court has been careful during the Obama and Biden presidencies to use the constitution to protect the power of Congress. They struck down several executive actions with large consequences for the economy that Congress did not authorize. I do not expect them to change course for President Trump.
As the various court battles occur over the Trump administration’s executive actions, a useful tool is to imagine how the courts would be considering how their ruling will limit a future left wing Democratic President.
The rules should be the same for a liberal or a conservative president. Whether you like or dislike a policy — is it a fair reading of the law to say the President can undertake the action?
So, for future Supreme Court predictions on big Trump initiatives – always imagine the justices considering “if I vote to allow President Trump to do this novel act no President has previously tried to do, how would a future liberal Democratic President cite that precedent to do something she wants to do?”
That’s the essence of the rule of law – the same rules apply to people making choices with which you agree or disagree.
And so, we can predict using that simple heuristic that when a president targets a university or a law firm or a company for punishment because he does not like something that they did or their employees said, the Court will find that due process or the First Amendment will strike it down. The Court doesn’t want presidents picking out businesses or nonprofits as “enemies” and hurting them without a trial or other due process.
On the other hand, the Supreme Court has also been moving in the direction of streamlining presidential control over the executive branch and “independent agencies.”
And so, we can predict broader latitude given to the President by the Supreme Court to terminate programs within agencies and effectively turn government agencies into empty shells.
It is a closer call whether presidential power to control the executive branch will allow him to break union contracts with Government employees by wholesale firing of many people. I suspect the Court will give him latitude by interpreting the contracts to give him as much authority as it can, but not to make the words of the contracts meaningless.
We live in a time when many Americans are cynical. They think that the judges are purely partisan. While there are feelings of judges for or against policies or presidents or parties, on the whole, judicial decisions tend to follow trends in legal interpretation.
The trends in the law I have outlined here will help you predict and understand how the Court is likely to rule:
(1) protect citizens, universities and companies from being targeted without due process because they angered the president (first amendment retaliation and due process) and strike down presidential actions that violate this.
(2) protect the authority of Congress to take actions that have big economic effects (Article 1, Section 8 of the Constitution, major question doctrine, non-delegation doctrine) and strike down presidential actions that violate this—such as tariffs based on laws that don’t call for tariffs.
(3) empower the president to take greater control over the executive branch and independent agencies (Article 2 of the Constitution and uphold presidential actions that do this.
Read NY Times article, “Trump Tariffs Ruled Illegal by Federal Judicial Panel, https://www.nytimes.com/2025/05/28/business/trump-tariffs-blocked-federal-court.html?smid=nytcore-ios-share&referringSource=articleShare&sgrp=p&pvid=7585655E-2B32-4580-80C3-7C09FA9EEE46
David Nacht is a Harvard‑ and University of Michigan‑educated trial lawyer and the founder and principal of his firm, known for representing individuals at every stage of their careers—from students and employees to executives—when their reputation, rights, and livelihood are on the line. Licensed in Michigan, Ohio, and Massachusetts, he is among the rare attorneys who regularly practices both civil and criminal law in federal and state courts, using insights from each arena to gain strategic advantages for his clients. Nacht has achieved landmark victories in employment law, university and Title IX proceedings, civil rights litigation, criminal defense, and high‑stakes business disputes, including precedent‑setting appellate wins and multimillion‑dollar settlements and negotiations. Widely recognized as a leader in defending the accused and advocating for due process, he combines meticulous preparation, forward‑thinking strategy, and a client‑first philosophy focused on dignity, clarity, and results.