Trump administration – The Fearless Scholar

The US Supreme Court Decision on Tariffs: Bad News from a WTO Perspective

Michail Risvas, 30 March 2026 8 mins read

On 20 February 2026, the US Supreme Court held in Learning Resources Inc et al v Trump et al that the International Emergency Economic Powers Act 1977 (IEEPA) does not authorise the President to impose tariffs, as he had done on ‘Liberation Day’. Although the decision of the Supreme Court appeared to provide a check on the President’s powers, its practical consequences were bound to be limited. However, the judges’ reasoning raises much wider questions about their skeptical perspective on international trade law.

As correctly recognised by commentators as well as Justice Kavanaugh’s dissent, ‘the decision might not substantially constrain a President’s ability to order tariffs going forward’, given that numerous other federal statutes authorize the President to impose tariffs and might justify most (if not all) of the tariffs at issue in this case.’ Indeed, immediately following the ruling, the Trump Administration imposed a 10 per cent tariff under the Trade Act 1974 (s122) and initiated investigations into unfair trade practices by foreign countries under Section 301, thereby underscoring the limited practical impact of excluding IEEPA as a legal basis. Given the limited practical effect of the Supreme Court judgment on international trade, it is worth examining the symbolic significance of the decision for international trade law.

The IEEPA gives the President broad authority to regulate and block a wide range of international transactions in response to national emergencies:

‘investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest by any person, or with respect to any property, subject to the jurisdiction of the United States.’ (emphasis added)

All six judges of the majority rejected the President’s reading of the IEEPA under ordinary principles of statutory construction that IEEPA’s grant of authority to ‘regulate… importation’ of property during a declared national emergency is broad enough to include the power to impose tariffs (that is duties on imports). Three of them, Justices Kagan, Sotomayor, and Jackson, – all appointed by democrat presidents – also relied on the ‘Major Questions Doctrine’ to bolster their conclusion. Under the doctrine, Congress must speak clearly if it wishes to assign to the Executive Branch decisions of vast economic and political significance.

The three dissenting judges, Justices Thomas, Alito, and Kavanaugh, who are amongst the most conservative members of the Supreme Court, held that the IEEPA included and delegated the power to impose tariffs.

The focus here will be on the disagreement between the majority and minority on whether IEEPA’s regulation of imports (or ‘importation’ in the Act) includes the power to impose tariffs from an international economic law perspective. However, the present analysis is not concerned with the issue of whether the Supreme Court was in fact required to consider international law. The conditions under which US courts engage with international law are limited (note, for example the Charming Betsy canon) and reflect a jurisprudence that ties the internalisation of international law to Congressional intent – in contrast the more expansive approach of the Court of Justice of the European Union (De Búrca (2015) at p. 1005).

An International Economic Law perspective on trade and tariffs in the Supreme Court decision

As a matter of international trade law, there are two important points in the majority’s reasoning. First, for the majority the concept of ‘regulation’ does not include tariffs, and this was not only a matter of statutory interpretation and Congressional practice but also a matter of common understanding. For example, Justice Kagan held that ‘the meaning of “regulate,” both in common parlance and as Congress uses the word, does not encompass taxing.’ By contrast, Justice Kavanaugh in his dissent emphasised ‘the dictionary definitions and the traditional understanding of tariffs as a tool to regulate foreign imports.’

Second and interrelated, Justice Roberts (who wrote the opinion of the Court) interprets tariffs as ‘very clear[ly]… a branch of the taxing power,’ ‘different in kind, not degree’ from regulatory tools, and thus outside the spectrum of authorities to ‘regulate’ trade. Again, Justice Kavanaugh disagreed characterising tariffs as a lesser form of trade regulation. He explains that:

‘[t]he plaintiffs and the Court acknowledge that IEEPA authorizes the President to impose quotas or embargoes on foreign imports—meaning that a President could completely block some or all imports. But they say that IEEPA does not authorize the President to employ the lesser power of tariffs, which simply condition imports on a payment. As they interpret the statute, the President could, for example, block all imports from China but cannot order even a $1 tariff on goods imported from China.’

These disagreements reflect deeper divergences on domestic constitutional law and what the imperative of the separation of powers requires. Notably, it is the majority’s reasoning that has been subject to criticism under doctrinal domestic law. For instance, Chad Squitieri has argued that ‘[t]o ignore that the power to regulate importation has traditionally included the power to impose tariffs, and to instead shift attention to whether the statute delegates a separate taxation power, is to miss the point.’ That point is that tariffs can and do regulate, quite regardless of whether they also raise revenue.

For present purposes, the focus is on how the Supreme Court majority’s understanding of tariffs sits uneasily with established WTO law and practice and, more broadly, international economic law doctrine. First, from an international economic law perspective, tariffs fall within the scope of trade ‘regulation.’ For example, Article XXIV of the General Agreement on Tariffs and Trade (GATT) (both in the 1947 and the 1994 versions) refers to ‘tariffs or other regulations of commerce’ and ‘duties or other regulations of commerce’ (emphasis added). This language makes clear that tariffs are not conceived as external to ‘regulation’ but rather as one of its central expressions.

Second, in the context of the WTO, tariffs not only constitute the paradigmatic but also the preferred regulatory tool in matters of international trade, as opposed to more restrictive regulatory measures such as quantitative restrictions which are prohibited. A WTO Panel in Turkey – Textiles emphasized that ‘[t]he prohibition against quantitative restrictions is a reflection that tariffs are GATT’s border protection “of choice”. Quantitative restrictions impose absolute limits on imports, while tariffs do not’ [9.63].

Quoting this the Appellate Body in India – Additional Import Duties also held that ‘tariffs are legitimate instruments to accomplish certain trade policy or other objectives such as to generate fiscal revenue. Indeed, under the GATT 1994, they are the preferred trade policy instrument, whereas quantitative restrictions are in principle prohibited’ [159] (emphasis added).

Accordingly, the majority’s sharp conceptual separation between taxation and regulation does not align with the functional and doctrinal approach adopted in WTO law, where tariffs operate simultaneously as fiscal instruments and as central tools of trade regulation.

This raises the question why the progressive justices (in addition to three conservative judges), rather than the ‘conservative’ dissent, arrived at a position that is so antithetical to established WTO law and practice. One possible explanation is that the majority’s primary concern was to impose limits on the President’s powers as a matter of domestic constitutional law, even if this came at the expense of alignment with international economic law. Yet, the longstanding US opposition to the WTO Appellate Body – across the administrations of Presidents Obama, Trump, and Biden, and ultimately leading to its paralysis – also provides useful background explanation.

The judgment’s silence on contemporary international trade law and practice

In a decision that spans approximately 170 pages and examines the historical evolution of early modern English law and 18^th and 19^th century US practice, one might reasonably have expected some engagement with contemporary international trade law and practice. Even a brief acknowledgment of how tariffs are conceptualised in international trade law would have provided a more contextually grounded account of the regulatory landscape within which such measures operate.

The merits of the Supreme Court’s decision will remain contested from both constitutional and policy perspectives. However, irrespective of whether the Court was formally required to engage with international or WTO law, its complete silence on these frameworks is likely to reinforce the perception that scepticism toward international law and multilateral institutions, such as the WTO, is – within the United States – systemic rather than contingent, and not confined to any particular administration or ideological orientation.

Trump’s takeover of Venezuela and the long-standing hypocrisy of international law

Andrea Maria Pelliconi, 5 February 2026 7 mins read

The past months have brought back with startling clarity a pattern many international lawyers know all too well. Under the second presidency of Donald Trump, the United States (US) has returned to overt coercion to impose their interests upon the rest of the world. Realist pragmatism has always been present in international relations, but states used to couple their acts “with at least a resemblance of legal justification”. This time, however, practice is matched by words: Trump has completely dispensed with the liberal varnish that usually accompanies US extraterritorial mischiefs and openly admits that his actions are guided only by his own morality. The attack on Venezuela and the kidnap of Nicolás Maduro and his wife have been followed by repeated threats to annex Greenland by purchase or use of force, alongside renewed intimidation directed at other states such as Panama, Mexico, Colombia, and Cuba. We’re witnessing an accelerated deepening of the global crisis of multilateralism and international law and a return to Great Powers’ “spheres of influence”.

Everyone knows in legal scholarship that the unilateral kidnap of a sitting head of state is unequivocally unlawful under international law, whatever one may think about the Maduro regime and its gross and widespread human rights abuses. The prohibition of the use of force, the principles of sovereignty and non-intervention, and the personal immunity of heads of state vis-à-vis other domestic jurisdictions leave no room for ambiguity. And yet, the responses of some western states and the European Union (EU) have not been so unequivocal. Instead, they have been divided and ambivalent, cloaked in watered-down words of “concern” or “monitoring” or strategic silences. German Chancellor Merz has stated that the legal assessment of the US operation is “complex”. French President Macron has emphasised the need for a transition which is “peaceful, democratic, and respectful of the will of the Venezuelan people”. Italian Prime Minister Giorgia Meloni suggested that while the use of force is generally wrong, the US were acting in self-defence against so-called “hybrid security attacks”, referring to Maduro’s supposed weaponisation of drug-trafficking against the US. Reactions were far more decisive when it came to Trump’s threats against Greenland, where the territorial integrity and interests of an EU and NATO state were at stake. European leaders suddenly rediscovered the language of international law and the inviolability of sovereignty and territorial integrity with admirable clarity.

This should not come as a surprise. Over the past years, manifestations of double standards and selectivity have grown exponentially, with the most discussed example being the reactions to Russia’s invasion of Ukraine and Israel’s “plausible” genocide in Gaza, both framed as defensive responses to security threats and terrorism. While one may well argue that Israel’s self-defence claim was more well-founded than Russia’s, it soon became clear that the 7 October 2023 attack was being used as a mere pretext to unleash uncontrolled violence on Palestinians, while preparing the ground for territorial expansion in both Gaza and the West Bank. This expansionist plan continues to develop even now, after the supposed “ceasefire” and the UN Resolution on Gaza, and nothing concrete is being done to bring it to an end. The same double standard surfaced in reactions to the International Criminal Court’s (ICC) arrest warrants against Vladimir Putin and Benjamin Netanyahu for international crimes. The same European states that rushed to praise the ICC for its investigation of the Russian leader, later declared that Netanyahu enjoys immunity from ICC prosecution.

And yet, once again, this selectivity is not new at all. It follows decades of US (and broader Western) unlawful attacks and interventions in Iraq, Afghanistan, Iran – to the extent that exceptionalism is not exceptional anymore. Each time, international law norms were stretched, re-interpreted, or reinvented through securitisation doctrines such as preventive self-defence and the “unable or unwilling” test, or hidden behind ostensible “benevolent motives” such as humanitarian intervention, regime change, and the “exportation of democracy”. In fact, the US has even committed the exact same type of head-of-state kidnapping before in the region, most notably with the capture of Manuel Noriega from Panama. This is the so called “rules-based international order”, meaning the rules that the US and its allies imposed upon the rest of the world (“the West and the rest”), as opposed to what international law actually required. Every time, other western states have been weak in condemning the illegality of these actions, and even weaker in doing anything concrete to prevent, stop, or redress them.

Now, at what feels like the climax of the collapse of the international legal order and multilateralism, everyone has awakened, shouting that this is not a drill. UN experts warn that such actions normalise lawlessness in international relations, and commentators caution that Venezuela sets a dangerous precedent: if powerful states may unilaterally decide when international law applies and when it does not, the legal order collapses into selective enforcement and strategic convenience. Even leading US academics now talk about the catastrophic collapse of jus ad bellum norms and the dangers we all face when “might unmakes right”. They highlight the risk that the Venezuela incident “opens the door to other similar actions by powerful nations in the future”. This fails to appreciate that the door has long been wide open.

A prevalent position now is to acknowledge the flaws of international law but vehemently opposing the abandoning of its normative constraints because they’re the only thing that will save us from debacle. International law can still be mobilised to place constraints on power and if it’s consistently disregarded it’s because of contingent political factors militating against full compliance. A recurring metaphor that I’ve heard a few times lately, including among critical thinkers, is the Sisyphus’ myth: the futility of the task should not deter the discipline. But this, at least in part, obscures how this system was intentionally built to shield the actions of the West and has laid the foundations for the situation we now find ourselves in. International law and the indeterminacy of its content provide a “professional vocabulary” to build plausible arguments. For decades, mainstream scholars were complicit in the legal legitimisation of these actions, coming up with doctrines that served the interests of the moment under a façade of international legal jargon.

The inherent defect of the international legal infrastructure has simply become more visible now. As Rajagopal has put it, “The revival of overt colonial and imperial designs under the Trump regime in Washington is notable not because it has invented new forms of domination, but because it has dispensed with the traditional liberal rhetoric that once accompanied them.” From its colonial origins to its modern doctrines of sovereignty, intervention, and trade, international law has consistently operated in the interests of dominant states and classes, while insulating them from the equal application of its norms. What we are witnessing today are colonial revivals as the logical outcome of a system that never truly decolonised. It seems scarier to European eyes now because it has eventually turned against them.

Of course, legal scholarship is not monolithic. Critical voices, including TWAIL scholars, have raised these concerns all along. Yet they have been unable to bring material change, partly because of the structural hierarchies of international law, and partly because of fragmentation of their own views. Some tried to change the system from within; others were content to critique from the margins; others advocated radical transformation or the complete dismantling of the legal order, often without a clear project – and always with different opinions – for what should come after.

Now, as we stand on the verge of a concrete dismantling of the system, with Trump’s plan to replace the United Nations with his own personal “Board of Peace” and international relations reaching the peak of personalisation and corporatisation, everyone – even critics – seem unsure what to do. If there is a moment to seize, it is now. But seizing it requires more than lamenting Trump’s excesses or the fragility of the system: it demands an honest reckoning with the errors of the past, Western exceptionalism, legal complicity, resource-hungry capitalism, and a system ostensibly built on sovereign equality but consistently seized by vetoes and unilateral reprisals. What is needed are visionary ideas for radical change and possible futures – and I am not sure we – myself in primis – are up for the task.

Trump’s EU foreign policy, implicated scholarship and the ‘Brussels Effect’

Uta Kohl, 16 January 2026 —- 8 mins read

For Europe, the fierceness of the Trump administration’s hostility to the EU has come as a shock. It is unprecedented in scale and kind, and manifests itself in words (Vance’s speech in Munich attacking the EU over free speech and migration or Trump describing Europe as ‘decaying’ and its leaders as ‘weak’) and actions ( halting military aid to Ukraine, announcing 30% tariffs on the EU, or threatening to take Greenland by force). Yet, these hostilities do not come out of nowhere and build on a rise of transatlantic tensions over many US policy choices between 2000 -2024 and acceleration of those tensions over the last decade. Legal and international relations scholars have decried these developments as a breach of trust or, in some cases, a of international law. However, there appears to be little soul-searching about how we, as scholars, may be implicated in them. Whilst academia generally remains on the outskirts of day-to-day politics, we produce knowledge and narratives that create and shape discourses that have an impact on politics.

The Brussels Effect

One such popular academic narrative that has fed into the transatlantic hostilities is the ‘Brussels Effect’. The Brussels Effect was first coined by the Finnish-American scholar, Anu Bradford, in her article (2012) and book (2020) in which she purports to describe ‘how the European Union rules the world’. Her thesis is simple, namely that the EU can set – and has set – global regulatory standards by virtue of being a large and attractive market for many importers from outside the EU and, then, by setting (strict) standards for these importers who often have an incentive to adopt them as their global baseline. This de facto global harmonisation by corporate fiat is complemented by de jure global harmonisation as the home states of these corporations decide to follow the EU regulatory lead and enact like laws in their jurisdictions. Thus there is a global convergence towards EU standards without the political difficulties and cost associated with harmonisation efforts following formal processes. Effectively, the EU gets harmonisation on the cheap. European data protection law is widely seen as an example par excellence of the Brussels Effect as it has led to a widespread adoption of data protection laws around the globe.

Bradford’s Brussels Effect has been hugely successful as a seemingly objective and neutral synthesis of facts describing EU regulatory hyperactivity with extraterritorial effect. For the digital world, this seems particularly true considering the recent raft of EU legal instruments dealing with online platforms, such as Digital Services Act, the Digital Markets Act and the AI Act. There are many more (including corporate sustainability measures), and all of them have exterritorial reach as they apply to foreign providers that operate in the EU. The Brussels Effect has been referenced by thousands of scholars and taken up by EU policy makers and politicians with gusto, often as a badge of pride and honour.

And yet, there is more to the Brussels Effect than meets the eye. For a start, it is not simply a description of facts about EU regulation but a meta-narrative that puts a particular perspective or spin on facts. Meta-narratives are stories about stories, which explain, tie together, and legitimise or delegitimise smaller facts and events, and appeal as much to the emotions as they do to the intellect. Bradford’s article starts off by appealing to the sensitivities of the average American: ‘EU regulations have a tangible impact on the everyday lives of citizens around the world. Few Americans are aware that EU regulations determine the makeup they apply in the morning, the cereal they eat for breakfast, the software they use on their computer, and the privacy settings they adjust on their Facebook page. And that’s just before 8:30 AM.’(3)

The particular perspective of the Brussels Effect narrative is one of EU regulatory overreach. This charge is already implicit in the title of Bradford’s book: How the European Union Rules the World. Implicit in her argument is the question: Why should Europe rule the world? Centuries of European imperialism, including legal imperialism, are bygone and, if not, should be. Brussels should be ashamed of itself. By the same token, if the Brussels Effect narrative offers a legitimate critique of excessive EU law, then the Trump administration’s opposition to EU regulation of US platforms also strikes a legitimate chord. In that case, the large platforms may also be right in characterising the fines by the Commission under EU platforms regulations as ‘protectionist’, ‘discriminatory’ or ‘disguised tariffs’ or as ‘censorship’. Yet, does the EU really rule the world? Unlikely.

There are indeed good reasons why the Brussels Effect narrative is not plausible. Here are three. First, EU (digital) regulation seeks to regulate the European single market and must necessarily apply to foreign providers who do business in Europe. This is a standard jurisdictional approach adopted across the globe as it rightly protects local standards from being undermined by foreign providers. Second, when foreign corporations, like the US digital platforms, adopt European standards as their global baseline, this is a commercial decision driven by market forces. The EU cannot ‘choose’ this as a route to global harmonisation, but as a form of bottom-up harmonisation it can lend support and legitimacy to political harmonisation. Such market forces come and go, wholly outside the EU’s power. Third, whilst according to Bradford’s Brussels Effect the EU imposes its preference for ‘strict rules’ on ‘the rest of world’ (citing almost exclusively US examples), arguably the US and not the EU is the outlier in its preference for laissez-faire law, especially in respect of the tech platforms. Already in 2005, Frederick Schauer observed that the absolutist speech protection of the First Amendment was the odd one out internationally: ‘On a large number of other issues in which the preferences of individuals may be in tension with the needs of the collective, the United States, increasingly alone.’ Thus, it is far more plausible that EU regulations are simply more aligned with the public policies and interests of other jurisdictions than US laissez-faire law is.

The Washington Effect

If the Brussels Effect narrative paints a skewed picture of EU regulatory activism, it may be more compelling to understand EU regulations through the counter-narrative of the ‘Washington Effect’. A counter-narrative uses the same facts but tells a different story. In this case the story is that EU platform regulation is not an offensive extraterritorial strategy for Europe to attain global ‘superpower’ status, but rather a defensive territorial one that seeks to counter, in Europe, the hegemony of US platforms and US laissez-faire law. In other words, the EU is in pursuit of reclaiming digital sovereignty and perhaps even leads the global resistance to US legal imperialism.

The counter-narrative of the Washington Effect builds on the idea that deregulation is not nothing or neutral, but a form of regulation whereby existing legal standards are abandoned or watered down. It may occur within a jurisdiction through explicit deregulatory measures or across jurisdictions when the more permissive laws of one State undermine the more restrictive laws of another. Although deregulation appears to facilitate the ‘free’ market – free from state interference – even a free market is enabled by the general law of the land, such as contract and property law, corporation law, basic rules on fair competition, product liability or negligence law. Thus deregulation that meddles with these fundamental enabling market rules constitutes a significant regulatory intervention with the market, rather than a non-intervention. Such deregulatory interventions reconstitute the market and its distribution of rights, privileges, powers and authorities. In other words, deregulation also regulates.

There is plenty of evidence of the de facto or de jure imposition of US deregulation on ‘the rest of the world’. Most notably, section 230 Communications Decency Act (1996) which immunises platforms from liability (under the ordinary law of the land) for wrongful publications by third parties on their domains, is one such piece of deregulation that the US has successfully exported to more than 60 jurisdictions worldwide with an enormous effect on global networked space. Equally, a de facto Washington Effect occurred when US digital platforms – ‘socialised’ through US permissive laws, most notably US First Amendment jurisprudence – started to offer their services in Europe and elsewhere with minimal legal restraints built into their content distribution and ad revenue systems and when this starting position went unchallenged in Europe for decades. So perhaps it is the Washington Effect, not the Brussel Effect, that really shows who rules the world.

The moral of the story

Academic scholarship matters. It tells stories. The Brussels Effect is a story that has mattered. Its effects have been significant. It has lent credence to the Trump administration’s opposition to EU tech regulation. It has then put the EU on a regulatory backfoot and, at the same time, disguised quite how successfully Washington has exported its deregulatory regulation to the rest of the world. The Brussels Effect demonstrates that just because a narrative has intuitive appeal and in fact appeals to many, does not mean it’s a good story. This is a dangerous one.

For a more in-depth analysis of the topic, see Uta Kohl, ‘The Politics of the ‘Brussels Effect’ Narrative’, forthcoming in ACROSS THE GREAT DIVIDE: PLATFORM REGULATION IN THE UNITED STATES AND EUROPE (A. Koltay, R. Krotoszynski, B. Török, E. Laidlaw (eds), OUP, 2026)