President Trump’s claim that he has the power to impose tariffs unilaterally ran into a wall of skepticism at the Supreme Court Wednesday, as lawyers battled over the legitimacy of a key part of Trump’s economic program.
In a case brought by small businesses claiming harm from the tariffs Trump has imposed on trade partners around the world, the justices on the high court dug into the legal reasoning behind the unprecedented use of the import taxes, with the administration seeking to defend its claim that the executive has virtually unlimited power over trade policy during a self-declared national emergency.
The Constitution explicitly grants Congress authority over tariffs, but Trump maintains that, under the International Emergency Economic Powers Act of 1977, his declarations of national emergencies over the size of the trade deficit and the ongoing illegal drug trade give him the power to override congressional control. That claim has been rejected by lower courts.
Skeptical questioning: In what is probably a bad sign for the administration, the justices — including some of the six conservatives who make up the majority on the court — appeared to have significant doubts about Trump’s position.
Noting that tariffs are a form of taxation, which “has always been the core power of Congress,” Chief Justice John Roberts asked if Trump was using his control over foreign affairs to “neutralize” the power of the legislature. Solicitor General D. John Sauer, arguing on behalf of the Trump administration, said Trump was using his authority to regulate imports during an emergency, as allowed by the IEEPA.
One of the court’s liberals, Justice Sonia Sotomayor, focused on the same point. “It’s a congressional power, not a presidential power, to tax,” she said. “And you want to say tariffs are not taxes, but that’s exactly what they are.”
Justice Elena Kagan questioned the validity of Trump’s many emergency declarations. “It turns out we’re in emergencies — everything all the time, about, like, half the world,” she said. Sotomayor wondered what emergency occurred that legitimized a new 10% tariff on Canadian imports, which Trump imposed after an ad critical of his policy aired during the World Series.
Asked by Justice Amy Coney Barrett if a president has ever before claimed the power to impose tariffs to regulate imports, Sauer cited the Trading with the Enemy Act of 1917, which President Richard Nixon used in 1971 during a balance of payments crisis. Critics, however, argue that the IEEPA was passed to limit that type of presidential authority.
Downplaying tariff revenues: Sauer also downplayed the revenue produced by the tariffs — something Trump has discussed publicly and proudly — since that could weaken the administration’s claim that the tariffs are driven by an emergency need for new regulations, not a need for tax revenues. “These are regulatory tariffs. They are not revenue-raising tariffs,” Sauer said. “The fact that they raise revenue is only incidental.”
Whether the tariffs could be reduced or otherwise altered by Congress was another point of discussion. Plaintiff’s lawyer Neal Katyal, who served as deputy solicitor general in the Obama administration, argued that if the Supreme Court rules in favor of the Trump administration, Congress’s power over tariff policy will be lost.
“It comes down to common sense,” Katyal said. “It’s simply implausible that, in enacting IEEPA, Congress handed the president the power to overhaul the entire tariff system — and the American economy in the process. ... We will never get this power back if the government wins this case.”
The bottom line: Legal analysts expect the court to push back against Trump’s claim that he has unlimited power to impose tariffs, though it’s not clear how broad the ruling might be, or when it may come. One way or another, though, it seems likely that some portion of Trump’s tariff policy will be struck down.
“After that argument, if I were the Trump Administration, I'd be burning the midnight oil over the next couple of weeks drawing up tariff backup plans,” said legal scholar Peter Harell, who served in the Biden administration as senior director for international economics. “A clear majority of the Justices appeared skeptical that IEEPA authorizes the type of broad-based tariffs that Trump has asserted this year.”