We finally have the Supreme Court tariff decision. Even though they took too long in a faster-moving world, it is as predicted. The Court ruled that all tariffs imposed under the International Emergency Economic Powers Act (IEEPA) were illegal in a 6-to-3 decision. The majority acknowledged what the first article of our Constitution clearly states: that duties (tariffs), like all taxes, are the exclusive province of Congress.

Predictably, the President threw a hissy fit. His main ire fell on two of the justices he appointed, Neil Gorsuch and Amy Coney Barrett,, even going so far as saying their families are ashamed of them or should be. At the same time, he praised the three conservative judges who backed the tariffs, Clarence Thomas, Samuel Alito, and Brett Kavanaugh. The latter wrote the key dissenting opinion. He made three points: the statute gives unlimited tariff power, the linking tariff power to the ability to conduct foreign affairs, and refunding the money would be “messy.

All three justices claim to be Scalia originalists, meaning simply applying the original intent of the law. What is confusing about the original intent of the first article of the Constitution that gives the power of the purse, including duties, exclusively to Congress? The thinking behind this traces back through British history and law, and the framers’ intent is crystal clear. What part of “no taxation without representation” don’t they understand? The majority in Chief Justice’s opinion stated the obvious.

The contention that the President needs the power to impose a punishing tax on U.S. citizens to conduct foreign affairs would be news to the Founding Fathers. This idea is like a child demanding his way, or he’ll hurt himself. As two recent studies have shown, Americans, not foreigners, pay 90% of the tariffs.

It isn’t apparent why the Supreme Court should be involved in refunding the illegal levies. Going back to last May, the Administration had lost in Court over these tariffs three times. Surely it was aware of the possibility of having to return what was collected. The Trump administration failed to have a plan, but that’s on them. Customs now makes refunds electronically all the time.

Costco and thousands of others have already filed lawsuits seeking refunds. The Administration, knowing that they wouldn’t prevail in Court, was a real possibility; it could’ve suspended collection pending a decision, but it went full speed ahead. Hitting a reef is on them.

The IRS is in the midst of issuing millions of refunds to taxpayers who overpaid their taxes without a problem. Surely, the Treasury Department can make thousands of refunds in this case.

The importers suing the Government must show that they have suffered harm to have standing. Importers who paid are entitled to a refund. Even if some customers paid higher prices, others refused or turned to other favored suppliers here and abroad, hurting these businesses overall.

Does the Administration really want the courts involved? It may find itself under restraints if it resists immediate refunds. Does it want customs to refrain from collecting all tariffs, or to put the money in a special fund to repay importers? With the courts, you may open a Pandora’s Box. Better give the money back to those sending it to you in the first place.

Consumers may benefit from lower prices. One can visualize Costco and others having tariff refund sales. They know their customers paid more under the tariffs, and it’s great customer relations, while highlighting the cost of tariffs.

Trump’s ugly response to the decision exposes what I’ve long maintained: voters’ exposure to two very different Donald Trumps. The Republican Trump, heading the party of smaller Government, free markets, peace through strength, and an originalist approach to the law. Trump’s first term exhibited many of these traits. Lowering taxes to encourage investment and innovation, reducing regulations that strangle growth, and appointing originalist judges fulfilled the promises he made on his way to nomination and election to his first term.

These policies won over many of the Reagan Republicans and brought the party together, yet there were signs of the lifelong big-government Democrat, especially in the first-term tariffs. While limited and featuring many exemptions, they did only a little harm to the economy. However, it was still government intervention in the market, resulting in picking winners and losers. Steel companies benefited, while the greater number of steel users paid the price.

In Trump’s second term, the full-featured mercantilist is moving toward full-blown industrial policy. Maybe Trump was always this person, and only joined the GOP because it offered an easier path to power. Nationally known, he could vanquish a lesser-known field of sixteen.

With firm control of his party, the real Trump is on display. His love of tariffs dates back to the 1980s. As I’ve pointed out, he matches the Democrats in reverence for the 1950s and ’60s. This revelation leaves many of his Republican supporters twisting themselves into pretzels.

Larry Kudlow and Steven Moore, longtime free traders who were instrumental in his highly successful first-term economic policies, are now seen on Fox News talking up his tariffs. Benefitting from alignment with the President, while fearing his ire, they joined many other Republicans caught between their ideals and survival.

Up to now, survival is winning, but that may now change. In the wake of his court defeat, Trump is levying a 15% across-the-board tariff under another statute. This law limits his authority to only 150 days. The tariffs then expire unless he gets approval from Congress. This timeline brings tariffs into the middle of the off-year election.

Trump has never been highly popular, with a majority almost always disapproving. Tariffs are even less popular. They hurt many Republicans, the core of small-business and farm supporters. Trump will have to choose between ultimately trying to extend his 15% tariff, going to Congress to seek an extension, or letting it lapse. What Republican running for election wants this situation? Especially since the tariffs to date haven’t eliminated our trade deficit, which Trump claims is a national emergency.

Survival may then depend on distancing themselves from the lame-duck President. It will be interesting to see how those in the party and their media supporters who debased themselves to Trump’s whims handle a now very foreseeable future. What new twists in the pretzels? They may suddenly remember the value of free markets and trade.