The Supreme Court on Wednesday seemed skeptical of President Donald Trump’s authority to impose sweeping tariffs in a series of executive orders earlier this year. During more than two-and-a-half hours of oral arguments, a majority of the justices appeared to agree with the small businesses and states challenging the tariffs that they exceeded the powers given to the president under a federal law providing him the authority to regulate commerce during national emergencies created by foreign threats.
The law at the center of the case is the International Emergency Economic Powers Act. Enacted in 1977, the president can invoke it “to deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States,” if he declares a national emergency “with respect to such threat.” Under Section 1702 of the law, when there is a national emergency, the president may “regulate … importation or exportation” of “property in which any foreign country or a national thereof has any interest.”
Representing the Trump administration, U.S. Solicitor General D. John Sauer told the justices that IEEPA “confers major powers to address major problems on the President, who is perhaps the most major actor in the realm of foreign affairs.” “The phrase ‘regulate … importation,’” he added, “plainly embraces tariffs, which are among the most traditional and direct methods of regulating importation.”
Sauer faced a barrage of questions from the court’s liberal justices. Justice Elena Kagan, for example, emphasized that Congress – not the president – had “the power to impose taxes, the power to regulate foreign commerce.” Justice Ketanji Brown Jackson pointed to what she described as the purpose of IEEPA, noting that the law “was designed and intended to limit presidential authority, that Congress was concerned about how presidents had been using the authority under the predecessor statute,” the Trading with the Enemy Act.
Additional skepticism came from Justice Neil Gorsuch, who raised two related objections to the powers that Trump is claiming. Gorsuch asked Sauer, on Trump’s theory, “what would prohibit Congress from just abdicating all responsibility to regulate foreign commerce, for that matter, [or] declare war to the President?” And a few minutes later, Gorsuch suggested that one problem with reading a law like IEEPA to give the president broad powers would be that it would create a “one-way ratchet toward the gradual but continual accretion of power in the executive branch” because, once the president had such powers, he could veto any effort by Congress to take them back.
Some of the other conservative justices joined Gorsuch in voicing skepticism. Chief Justice John Roberts, for example, suggested that Trump’s claim of power under IEEPA might violate the “major questions” doctrine – the idea that if Congress wants to grant power to make decisions of vast economic or political significance it must say so clearly. “The justification,” Roberts said, “is being used for a power to impose tariffs on any product from any country, in any amount for any length of time.”
Justice Amy Coney Barrett asked Sauer to point to other places in federal law where Congress used the phrase “regulate … importation” to give the president the power to impose tariffs. But she was also skeptical at times of the challengers’ arguments. Along with Justice Brett Kavanaugh, she pressed Benjamin Gutman, the solicitor general of Oregon, who represented the group of 12 states, about whether IEEPA on the one hand could give the president very broad powers – for example, allowing him to shut down all trade with another country – but on the other hand would not allow him to take the much smaller step, in her view, of imposing tariffs. Such a paradox, Kavanaugh suggested, created an “odd donut hole” in IEEPA.