Why are the Insular Cases of yore relevant to the current batch of Trump tariff cases of today? Although the legal issues are different, the Insular Cases are still relevant today because they show us how the “constitutional law game” is really played. Let me explain.

As we saw in my previous post, Downes v. Bidwell, one of the leading Insular Cases decided by the Supreme Court in 1901, involved a genuine legal dilemma: two conflicting constitutional provisions. One part of the U.S. Constitution (the Uniformity Clause in Article I) declares that “all duties, imposts, and excises shall be uniform throughout the United States,” while another part of the Constitution (the Territory Clause in Article IV) gives Congress the “Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” In other words, Downes is a quintessential hard case.

The deeper problem with Downes, however, is that instead of trying to resolve this tension between these conflicting constitutional provisions, the Supreme Court ended up deciding — by a narrow 5 to 4 margin no less — that the Uniformity Clause does not apply to Puerto Rico in the first place! Why not? Because the newly-acquired territory of Puerto Rico was somehow not a part of the United States, or in the infamous words of one of the judges of the Supreme Court (Henry Billings Brown), the Island was “foreign to the United States in a domestic sense.”

Now, let’s fast-forward to 2 April 2025, when President Trump signed Executive Order 14257 (see here). Among other things, Trump’s executive order invokes the International Emergency Economic Powers Act of 1977 (IEEPA) to impose a baseline 10% tariff on all imports into the U.S. (except on most imports from Canada and Mexico). Two weeks later (16 April), a group called the Liberty Justice Center (LJC), a so-called “public interest” law firm like the ACLU or NAACP, decided to challenge President Trump’s executive order in court (V.O.S. Selections, Inc. v. United States), and just last week (28 May), the LJC won a major battle in this tariff legal war: a three-judge panel of the Court of International Trade unanimously ruled that President Trump does not have the authority to impose tariffs under IEEPA. (The case is now on appeal.)

For my part, when I first heard about this case back in April, I thought it was a no-brainer for two reasons: one is that the power to impose tariffs belongs to Congress under Article I of the Constitution, not the president, and in any case (pun intended), the other reason is that the text of IEEPA does not refer to tariffs or import duties. Likewise, when I first studied the Insular Cases in law school — it was my friend and classmate Carlos Soltero, not a professor, who first brought this line of cases to my attention — I too thought it was another no-brainer: Congress may have the power to “make all needful Rules and Regulations” for U.S. territories under Article IV of the Constitution, but at the same time, Congress is bound by the rules set forth in Article I when making such rules and regulations, right?

Somehow, however, five justices of the Supreme Court in Downes v. Bidwell found a way to allow the Congress to have its cake and eat it too — i.e. allow the Congress to violate the plain words of Article I of the Constitution when legislating for Puerto Rico — by inventing out of whole cloth a completely made-up legal rule that continues to be “good law” to this day: the so-called doctrine of “unincorporated” territories, a doctrine that is found nowhere in the Constitution itself. We can now begin to see the relevance of Downes to a case like V.O.S. Selections.

Simply put, the larger lesson of a case like Downes v. Bidwell is a cruel one: the judges of the Supreme Court are not always bound by “law”, especially when the stakes are really high. (Yeah, I still haven’t forgotten Bush v. Gore!) Sometimes, these “judges” are just legislators in robes: they will, pardon my frankness, make shit up during their secret deliberations in order to reach whatever result a majority of them happen to think is the most expedient one. In short, if you want to fight Trump’s tariffs, we will need the Congress to step in at some point. If you put all your eggs in the Supreme Court basket, you will most likely be let down.

In my next few posts, I will revisit Trump’s aborted attempt to unilaterally abrogate the U.S.-Mexico-Canada free trade treaty earlier this year. Although Trump eventually backed down, this now-forgotten chapter in Trump’s destructive trade war may shed light on Gödel’s Loophole, a logical contradiction hiding in plain sight inside the U.S. Constitution.