The Supreme Court appeared skeptical during oral arguments Wednesday of President Donald Trump’s power to implement a broad worldwide tariff regime, although some justices sounded reluctant to potentially limit presidential authority over foreign affairs.
The Trump administration has asked the justices to overturn a ruling from the U.S. Court of Appeals for the Federal Circuit which stated that the tariffs overstepped the emergency authority Congress gave to presidents in the International Emergency Economic Powers Act of 1977, or IEEPA.
Solicitor General D. John Sauer argued Wednesday the law included broad powers over trade, including the power to “regulate” imports to deal with an emergency. He told the justices the tariffs were designed to regulate trade, not raise revenue.
Chief Justice John G. Roberts Jr. was among several justices who pushed back on that assertion over the course of nearly three hours of arguments. “Well, but the exercise of the power is to impose tariffs, right? And the statute doesn’t use the word tariffs,” Roberts said.
Roberts pointed out how the court has invoked a standard called the “major questions doctrine” to require Congress explicitly grant the president powers to address questions of major economic or political significance.
“It does seem like that’s a major authority and the basis for the claim, and seems to be a misfit,” Roberts said.
Sauer defended the tariffs, arguing that for centuries tariffs have been the “default” way for presidents to regulate importation into the country and that Congress passed IEEPA after a federal appeals court upheld Nixon-era tariffs under a similar law.
Justice Amy Coney Barrett questioned Sauer over whether other laws used the word “regulate” alone to allow taxation. When Sauer responded that in some cases courts had allowed the word “regulate” to be used that way, Barrett responded that just because it had in the past didn’t mean it must in this case.
“That just shows the word can be used that way, none of the cases talked about it as conferring tariff authority,” Barrett said.
Justice Neil M. Gorsuch pushed the Trump administration on whether its arguments would allow Congress to surrender other constitutional powers to the president.
“What would prohibit Congress from just abdicating all responsibility to regulate foreign commerce? For that matter, declare war, to the president?” Gorsuch said.
Both Gorsuch and Barrett pointed out that if the court were to uphold the tariffs, it could be difficult for Congress to retake the ability to set tariff rates. They pointed out that Congress would likely need a veto-proof majority to retake such power from a president.
“Congress as a practical matter can’t get this power back once it’s handed it over to the president. It’s a one-way ratchet toward the gradual but continual accretion of power in the executive branch and away from the people’s elected representatives,” Gorsuch said.
Sauer responded that Congress has voted to overturn emergency declarations and that Congress enacted IEEPA after a federal appeals court upheld Nixon-era tariffs under a law that had similar language.
Gorsuch at one point asked whether a future administration could declare climate change a national emergency to justify a 50 percent tariff on gasoline-powered cars. Sauer said it could but would be a “question for Congress.”
Foreign affairs questions
At other points in the arguments, the justices expressed skepticism about undermining Trump in dealing with foreign affairs, even if it meant upholding his ability to impose taxes without Congress.
“Yes, sure the tariffs are a tax, and they are a core power of Congress,” Roberts said, but he pointed out negotiations with foreign countries “implicates very directly the president’s foreign affairs power.”
Barrett and Justice Brett M. Kavanaugh also pushed Benjamin N. Gutman, Oregon’s solicitor general, on why the law would allow a president to impose a complete trade embargo on a country, but not allow tariffs on imports from that country.
“It doesn’t seem like it would make sense then that Congress would want the president to use something that was less — weaker medicine than completely shutting down trade as leverage to try to get a foreign nation to do something,” Barrett said.
Gutman responded that the nation’s founders were skeptical about efforts to raise government revenue and deliberately gave that power to Congress, even if some of those efforts may involve foreign affairs.
Kavanaugh also pointed out that ruling against the tariffs could undermine diplomatic efforts such as tariffs imposed on India to encourage the country to curb trade with Russia over the war in Ukraine.
Gutman responded that other trade laws, which have built-in limits, could be used for that purpose.
Numerous times throughout the arguments, Justice Sonia Sotomayor and the court’s liberal wing argued that Trump’s tariff regime asserted more power than the founders meant for the president to have. All three pointed out that the law cited by the Trump administration does not mention tariffs.
“We’re forgetting here is a very fundamental point, which is the Constitution is structured so that if I’m going to be asked to pay for something as a citizen, that it’s through a bill that is generated through Congress, and the president has the power to veto it or not, but I’m not going to be taxed unless both houses, the executive and the legislature, have made that choice,” Sotomayor said.
Major issue
The legal challenge to the tariffs, a signature foreign and domestic policy of the president’s second term, intermingles questions about taxes on trillions of dollars in trade goods, the president’s power over foreign affairs and Congress’ power over taxation.
Throughout the year, the administration has declared multiple national emergencies, citing problems tied to fentanyl smuggling, trade imbalances and other perceived policy problems.
Then the administration used those emergencies to enact tariffs under the IEEPA, arguing it gave Trump the power to “regulate” imports, which includes the power to raise tariffs. That included tariffs against Canada, Mexico and China, the worldwide “Liberation Day” tariffs and other specific ones against countries such as Brazil.
Both the U.S. Court of International Trade and U.S. Court of Appeals for the Federal Circuit disagreed with the Trump administration, finding that Congress did not give the president the authority to set tariff rates with the law.
Experts have said a decision in favor of the Trump administration would undermine Congress’ power over the ability to collect government revenue and also harm nascent efforts to override Trump’s emergency declarations.
Normally the Supreme Court would be expected to rule before the conclusion of the term at the end of June. However the justices granted the Trump request to expedite the cases, which combined challenges from private companies and several dozen states, so the justices could issue a decision before then.
The cases are Learning Resources Inc. v. Trump and Trump v. V.O.S. Selections.
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