President Trump has argued that tariffs are critical to the country’s economic health and national security, but the judges have questioned whether he, rather than Congress, has the authority to tax imports.
Are President Trump’s tariffs too big to fail at the Supreme Court?
Reporter Maureen Groppe explains the importance of the Supreme Court hearing the tariff case that could define President Trump’s term in office.
WASHINGTON – The Supreme Court, which has largely respected President Donald Trump’s claims to expand executive power, may be ready to put on the brakes.
During a nearly three-hour debate on Nov. 5, the justices questioned whether President Trump has the authority to impose significant tariffs on most imported goods.
Legal experts said the justices’ questions reveal a lot about their stance on President Trump’s policies, which the president said are “literally life or death for our country.”
Ashley Akers, a former Justice Department attorney now with the law firm Holland & Knight, said she heard “noticeable skepticism from judges across the ideological spectrum.”
“Overall, it felt like a strong day for tariff opponents, but this one looks like it’s going to be a close case,” Akers said.
Curtis A. Bradley, a foreign relations law expert at the University of Chicago Law School, said several justices were concerned that Congress would lose control over tariffs if they sided with Trump, even though the Constitution gives lawmakers the authority to do so.
But Todd Tucker, a trade expert at the left-leaning Roosevelt Institute, said some justices appear sympathetic to the administration’s argument that it’s strange that the president can’t impose any tariffs because the law in question specifically allows the president to block imports.
Oliver Dunford, an attorney with the libertarian group Pacific Legal Foundation, said the case is complex enough and the concerns expressed by the justices sufficiently diverse that the justices could reach a decision without a majority coalescing around a single legal argument.
“If I had to guess, I think the court would rule against the president without agreeing on the reasons,” Dunford said.
Here are key takeaways from the USA TODAY debate:
Trump lawyer: Tariffs were not imposed to raise money
A key point of discussion was whether tariffs were taxes.
The Constitution gives Congress the sole power to set taxes. But Attorney General John Sauer said the more than $3.3 trillion the tariffs are expected to generate for the government is “an incidental and collateral effect of the tariffs.”
“I can’t stress enough that this is a regulatory tariff, not a tax,” Sauer told Justice Elena Kagan, explaining that imposing import restrictions facilitates trade agreements with other countries and encourages domestic manufacturing.
At another point, Mr. Sauer told Justice Clarence Thomas that “going back to its founding, there has been a very broad delegation of authority to impose tariffs specifically and to regulate foreign commerce more generally.”
The conservative trio appears skeptical of the president’s authority to impose tariffs.
At least three of the six conservative justices (Chief Justice John Roberts, Justices Neil Gorsuch and Amy Coney Barrett) appeared skeptical of the Trump administration’s arguments.
The fourth, Justice Brett Kavanaugh, seemed to lay out the terms of the questions he wanted answered. In relation to the law’s key words, he said, judges “need to understand what it means to ‘regulate imports.'”
Roberts said the word “tariff” does not appear in the International Emergency Economic Powers Act of 1977, which President Trump used to justify much of his tariff regime, but it was previously used for sanctions. And Mr. Roberts made it clear that tariffs are taxes.
“And that’s always been the core power of Congress,” he said, meaning Congress has the power to levy taxes.
Gorsuch similarly focused on the fact that the Constitution designates Congress as the branch of government with the power to set taxes.
“The ability to reach into the pockets of the American people is completely different,” Gorsuch said. “And since our inception, things have changed.”
Gorsuch says Trump’s power is a ‘one-way ratchet’
Gorsuch and Barrett, both Trump appointees, expressed concern that Congress would be unable to rein in the president’s power to impose tariffs in the future if the courts rule them constitutional. The two justices noted that the president can veto any bill that aims to limit executive power.
“This is a unilateral move that gradually but continuously increases the power of the executive branch and moves it away from the people’s elected representatives,” Gorsuch said.
Barrett said that if Congress wants to approve limits on future emergency tariffs, it would need a two-thirds majority to overcome the president’s veto.
“If Congress were to say, ‘Hey, I don’t like that because it gives the president too much power under IEEPA,’ it would be very difficult to extract that tariff authority from IEEPA, right?” Barrett asked.
Kavanaugh appears to be undecided about tariffs on President Trump.
Kavanaugh, who sometimes casts swing votes in politically divisive cases, appeared undecided on President Trump’s tariffs.
Congress could have specified in the 1977 law at issue in this case that the president’s “import regulation” authority does not authorize tariffs. After all, Kavanaugh said, lawmakers were aware that President Richard Nixon had invoked an earlier, similar law in 1971 that temporarily imposed 10% tariffs.
“Why say regulation but not tariffs?” Kavanaugh asked Neal Katyal, a lawyer who represents companies opposed to tariffs.
Katyal responded that President Trump’s actions were markedly different from President Nixon’s actions. As an example, he said President Trump imposed a 39% tariff on Switzerland, an ally, despite a trade surplus between the United States and Switzerland.
“This president has destroyed the entire fee structure,” Katiyar said. Katiyal added, “No president in the history of our country has ever had the power to do so.”
Kavanaugh suggested at another point that it was strange that Congress gave the president the power to halt all trade through an embargo, but did not allow the president to impose a 1% tariff on imported goods.
“As the government stated in its brief, this legislation leaves a strange donut hole,” Kavanaugh said.
But Oregon Attorney General Benjamin Gutman told the court that tariffs are fundamentally different from embargoes.
“It’s not a donut hole, it’s a different kind of pastry,” Gutman said to laughter in court, while Kavanaugh praised it, calling it “good.”
Kavanaugh also noted that President Trump imposed tariffs on India to prevent it from buying Russian oil and pressure it to end the war between Russia and Ukraine. Kavanaugh said it would be “unthinkable” if the high court overturned the tariffs.
Gutman pointed out that there are other laws President Trump could rely on instead to take such action.
Liberal Mayor Kagan and Justice Jackson clearly oppose tariffs
Three liberal justices, Sonia Sotomayor, Kagan and Ketanji Brown Jackson, were clearly opposed to upholding President Trump’s authority to impose emergency tariffs.
“Importantly, what’s not included here is no reference to increased revenue,” Kagan told Sauer about the law at issue. “It has a lot of verbs and includes actions that can be taken under the law, but it doesn’t have the actions that are required.”
Kagan asked, if President Trump is right that he can “push the envelope” through emergency laws, why would he use other statutes? He noted that the government has argued that courts cannot review President Trump’s state of emergency declaration.
“So it doesn’t seem like a big constraint,” she said.
Sotomayor questioned whether Congress would have given the president such broad powers as tariffs without explicitly writing them into the statute at issue.
She pointed out that President Trump threatened to impose a 10% tariff on Canada for advertising during the World Series and a 40% tariff on Brazil for prosecuting the former president.
“The important question is, while they may be good policies, does a law that gives the president unlimited power to levy this type of tax require more than words?” ‘Regulate? ” Sotomayor asked Gutman, the Oregon attorney general who represents the states opposing the tariffs.
“That’s right,” Gutmann replied.
Mr. Jackson asked whether there had ever been anything in the legislative history of this law that called for a tariff.
Katyal said he would have missed a single mention “if I had blinked.” But Katyal argued that if tariffs were at stake, lawmakers would never give the president the power to impose tariffs on one of the most controversial issues in this country’s history by voice vote.
“Are you saying there’s nothing in legislative history?” Jackson asked.
“Zilch,” Katiyar said.
The question of what constitutes a “serious question”
Roberts said President Trump’s broad assertion of authority to set tariffs sounds like the kind of “serious issues” the court has previously said Congress needs to clearly present to the president.
The so-called “grave question doctrine” is a legal principle for litigation dealing with important acts of the president. In such cases, the Supreme Court said the president cannot use ambiguous statutes to claim he has the authority to act.
Sotomayor noted that the high court previously struck down President Joe Biden’s student loan forgiveness initiative that could have canceled up to $400 billion in student debt.
At the time, Roberts wrote a letter on behalf of six Republican-appointed judges saying that Congress had not clearly given Biden that authority and that Biden was overreaching.
Sotomayor and two other Democratic-appointed justices dissented. On Wednesday, she suggested the Trump administration’s use of emergency powers has similarities to what Biden has done, only to advance a different agenda.
“So, could Biden declare a national emergency on global warming and then get a pardon from students to avoid becoming a ‘major problem’ principle?” Sotomayor asked.
Mr. Sauer argued that Mr. Biden could not receive student loan forgiveness because, unlike tariffs, it was not a “core application” of the authority to regulate foreign commerce.
Barrett says reparations will be ‘chaos’ if court overturns tariffs
Mr. Barrett asked how difficult it would be for the government to refund duties already collected if a court rules that the duties are illegal.
“Will it be a complete mess?” Barrett asked Katyal, the lawyer for the companies challenging the tariffs.
Katyal said the government has announced that it will provide refunds to certain companies that he represents. Other importers will have to rely on complex rules set out in trade law to receive refunds.
“So it’s a mess,” Barrett said.
Mr. Katyal responded that even if reimbursement is difficult, that is no reason for the court to side with the regime. He added that the court could simply reverse the tariffs in the future.
