Supreme Court justices who will rule on the legality of President Donald Trump’s unlimited use of tariffs under a self-declared national emergency questioned both sides of a landmark case at a hearing Wednesday.
During more than two and a half hours of oral arguments, the nine-member panel focused on the scope of presidential power, the meaning of statutory language and constitutional limits on imposing burdens.
The justices’ questions suggested skepticism toward the Trump administration’s claim that the International Emergency Economic Powers Act of 1977 allows the president to impose unrestricted tariffs after declaring a national emergency.
The plaintiffs in the two consolidated cases before the court, Learning Resources Inc. et al v. Trump and VOS Selections Inc. et al vs. Trump, they represent a dozen states and seven small businesses that are claiming serious financial damages if the high court upholds what Trump calls “reciprocal tariffs.”
The Supreme Court hearing marks a consequential case for Trump’s trade policy. A ruling against him could force the administration to issue billions of dollars in tariff refunds to US importers and leave open the question of whether trade agreements based on the IEEPA tariffs are legitimate.
During oral arguments, the government and plaintiffs’ lawyers tried to sway at least five of the nine justices to their side for a winning majority. Two previous federal courts have ruled against using the IEEPA to impose duties, but the White House appealed to the Supreme Court in September.
Skepticism from the bench
Observers believed some conservative justices, seen as potential swing votes, appeared skeptical of the government’s interpretation of the IEEPA, which plaintiff lawyers argued overrode Congress’s constitutional authority to set the tariffs.
“While no clear outcome emerged, the line of questioning more closely aligned with the challengers’ position,” Josh Zive, senior director of the Bracewell law firm’s policy resolution group, said in an email, noting that no major new hurdles emerged and that Chief Justice John G. Roberts, Justice Amy Coney Barrett and Justice Neil M. Gorsuch leaned favorably on the suit.
U.S. Attorney General D. John Sauer, arguing on behalf of the Trump administration, said Congress gave the president broad authority under the IEEPA to deal with international emergencies through what he called regulatory tariffs rather than taxes to raise revenue. Trump has declared national emergencies based on US trade deficits with many countries, as well as fentanyl trafficking.
Justice Gorsuch focused on Sauer’s argument that Congress could give the president the powers described in Article 1 of the Constitution, which established the legislative branch.
“What would prohibit Congress from just abdicating all responsibility for regulating foreign trade, in this case, declaring war on the president,” Gorsuch said. He later added that if “Congress decides tomorrow, well, we’re tired of this legislative business. We’re just going to pass it all on to the president. What would stop Congress from doing that?”
Sauer said Congress could not do that because “it would really be an abdication, not a delegation.”
Roberts focused on IEEPA as a tariff authority, noting that the government’s use of the law to impose broad taxes is unique.
“You have a source claimed in IEEPA that has never before been used to justify fees,” Roberts said. “No one has argued that it does until this particular case. Congress uses tariffs in other provisions but not here.”
What’s in a word?
Barrett questioned whether the government’s interpretation of two words in the IEEPA — regulate and import — to impose taxes went too far.
“Can you point to anywhere else in the Code or any other time in history where that phrase together, “regulate . . . importation” has been used to confer authority to impose tariffs?” Barrett asked.
Sauer argued that a similar action taken by former President Richard Nixon using the Trading with the Enemy Act, a precursor to the IEEPA, was upheld by the US Court of Customs and Patent Appeals.
Greg Husisian, a commercial attorney and partner at the law firm Foley & Lardner, said Barrett did not appear to be alone in her skepticism that “regulating” within IEEPA meant charging tariffs.
“[Multiple Justices] seemed skeptical of the argument that “regulating imports” can mean “imposing tariffs,” Husisian said in an email, noting that the government “didn’t have a good answer” to Judge Barrett’s question about whether there were any other statutes that use “regulate” to refer to tariff authority.
Indeed, Justice Elena Kagan pressed Sauer further on the IEEPA’s imprecise language to support the Trump administration’s authority to impose broad-based tariffs.
“If you look at the other side of that and you look at all the tariff statutes that Congress has passed, I mean, they use language about revenue collection and tariffs and duties and taxes, all language that’s not in the statute that you’re relying on,” Kagan told Sauer.
Meanwhile, Judge Brett M. Kavanaugh questioned Oregon Solicitor General Benjamin Gutman, who represented the states in the combined case, about whether interpreting IEEPA to give the president the power to use embargoes or quotas to regulate imports but not tariffs created a “strange loophole” in the statute.
“That doesn’t seem like it, but I want to get your answer, that there’s a lot of common sense behind it,” Kavanaugh said.
“I think it absolutely does [make sense] because it is a fundamentally different power. It’s not a donut hole; it’s a different kind of pastry,” Gutman said, drawing laughter from the court.
Gutman argued that Congress intentionally excluded tariffs because they are taxes and therefore different from other forms of regulation.
The Supreme Court did not issue a ruling after Wednesday’s hearing, nor did it set a deadline for when it would return one.
