The lawyer representing United States President Donald Trump’s administration is facing tough questions from conservative and liberal US Supreme Court justices over the legality of the Republican president’s sweeping tariffs in a case with implications for the global economy that marks a major test of Trump’s powers.
On Wednesday, the justices pressed US Solicitor General D John Sauer, arguing for the administration, about whether Trump had intruded on the power of Congress in imposing tariffs under a 1977 law meant for national emergencies. They also asked Sauer whether Trump’s application of the statute to impose tariffs of unlimited duration was a major action by the executive branch that would require clear congressional authorisation.
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The arguments come in appeals pursued by the administration after lower courts ruled that his unprecedented use of a 1977 federal law at issue to impose the tariffs exceeded his authority. Businesses affected by the tariffs and 12 US states, most of them Democratic-led, challenged the tariffs.
Trump has heaped pressure on the Supreme Court, which has a 6-3 conservative majority, to preserve tariffs that he has leveraged as a key economic and foreign policy tool. The tariffs – taxes on imported goods – could add up to trillions of dollars for the US over the next decade.
Sauer kicked off the arguments by defending the legal rationale employed by the president, but immediately faced questions raising scepticism about the administration’s arguments about the language and purpose of the statute at issue.
Trump invoked the International Emergency Economic Powers Act, or IEEPA, to impose the tariffs on nearly every US trading partner. The law allows a president to regulate commerce in a national emergency.
Imposing taxes ‘core power of Congress’
Sauer said Trump determined that US trade deficits have brought the nation to the brink of an economic and national security catastrophe. Sauer said imposition of the tariffs has helped Trump negotiate trade deals, and unwinding those agreements “would expose us to ruthless trade retaliation by far more aggressive countries and drive America from strength to failure with ruinous economic and national security consequences”.
The US Constitution grants Congress, not the president, the authority to issue taxes and tariffs. The administration has argued that IEEPA allows tariffs by authorising the president to “regulate” imports to address emergencies.
The imposition of taxes on Americans “has always been the core power of Congress”, conservative Chief Justice John Roberts told Sauer, adding that these tariffs seem to be raising revenue, which the Constitution considers a role for Congress.
Conservative Justice Amy Coney Barrett questioned Sauer about his argument that IEEPA’s language granting presidents emergency power to “regulate importation” encompasses tariffs.
“Can you point to any other place in the code or any other time in history where that phrase together ‘regulate importation’ has been used to confer tariff-imposing authority?” Barrett asked.
US Treasury Secretary Scott Bessent said in the lead-up to the arguments that if the Supreme Court rules against Trump’s use of IEEPA, his tariffs are expected to remain in place because the administration would switch to other legal authorities to underpin them. Trump has imposed some additional tariffs, invoking other laws. Those are not at issue in this case.
Major questions doctrine
Sauer said the president’s actions in imposing the tariffs did not violate the Supreme Court’s “major questions” doctrine, which requires executive branch actions of vast economic and political significance to be clearly authorised by Congress. The Supreme Court applied this doctrine to strike down key policies of Trump’s Democratic predecessor Joe Biden.
A lower court, in ruling against Trump, found that the tariffs were impermissible under this doctrine.
Some of the justices, in questioning Sauer on whether Trump’s tariffs would survive scrutiny under the “major questions doctrine”, noted that Congress did not include the word tariffs in IEEPA.
Roberts challenged Sauer to explain why the court’s major questions doctrine would not apply to Trump’s tariffs under IEEPA.
“The justification is being used for a power to impose tariffs on any product, from any country, in any amount, for any length of time. I’m not suggesting it’s not there, but it does seem like that’s major authority, and the basis for that claim seems to be a misfit. So why doesn’t it apply?” Roberts asked.
Sauer said the doctrine does not apply in the foreign affairs context, but Roberts then raised doubts that the president’s power in this domain could override inherent powers of Congress.
“The vehicle is the imposition of taxes on Americans, and that has always been the core power of Congress,” Roberts told Sauer.
Trump is the first president to use IEEPA to impose tariffs, one of the many ways he has aggressively pushed the boundaries of executive authority since he returned to office in areas as varied as his crackdown on immigration, the firing of federal agency officials and domestic military deployments.
Liberal Justice Elena Kagan pressed Sauer about his claim that Trump’s tariffs are supported by the president’s inherent powers under the Constitution. Kagan said the power to impose taxes and regulate foreign commerce is usually thought of as “quintessential” powers belonging to Congress, not the president.
Liberal Justice Ketanji Brown Jackson said IEEPA was intended to limit presidential authority, not expand it.
“It’s pretty clear that Congress was trying to constrain the emergency powers of the president,” Jackson said.
Conservative Justice Brett Kavanaugh asked Sauer about a 10 percent tariff imposed on some imports in the early 1970s by then-President Richard Nixon under a predecessor statute to IEEPA.
Kavanaugh asked, “What’s the significance of the Nixon example and precedent here? Because I think figuring that out is really important to deciding this case correctly.”
‘Simply implausible’
Neal Katyal, a lawyer arguing for businesses that challenged the tariffs, told the justices that common sense makes clear that the administration’s interpretation of IEEPA is flawed.
“It is 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,” Katyal said.
Questions posed by conservative Justice Neil Gorsuch suggested that he thinks Sauer’s claims about the breadth of the president’s inherent foreign affairs powers would threaten to undermine the Constitution’s separation of powers between the federal government’s executive and legislative branches.
“What would prohibit Congress from just abdicating all responsibility to regulate foreign commerce – or for that matter, declare war – to the president?” Gorsuch asked.
Gorsuch said that, as a practical matter, Congress cannot get authority over tariffs back if IEEPA is interpreted as handing that power over to the president. This interpretation would be 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.
The IEEPA-based tariffs have generated $89bn in estimated collections between February 4 and September 23, when the most recent data was released by the US Customs and Border Protection agency.
The Supreme Court has backed Trump in a series of decisions issued this year on an emergency basis. They have let Trump policies, which were impeded by lower courts amid questions about their legality, to proceed on an interim basis, prompting critics to warn that the justices are refusing to act as a check on the president’s power.
Global trade war
Trump instigated a global trade war when he returned to the presidency in January, alienating trading partners, increasing volatility in financial markets and fueling global economic uncertainty.
He invoked IEEPA in slapping tariffs on goods imported from individual countries to address what he called a national emergency related to US trade deficits, as well as, in February, as economic leverage on China, Canada and Mexico to curb the trafficking of the often-abused painkiller fentanyl and illicit drugs into the US.
Trump has wielded tariffs to extract concessions and renegotiate trade deals, and as a cudgel to punish countries that draw his ire on non-trade political matters. These have ranged from Brazil’s prosecution of former President Jair Bolsonaro, India’s purchases of Russian oil that help fund Russia’s war in Ukraine, and an anti-tariff advertisement by Canada’s Ontario province.
IEEPA gives the president power to deal with “an unusual and extraordinary threat” amid a national emergency. It had historically been used for imposing sanctions on enemies or freezing their assets, not to impose tariffs. In passing IEEPA, Congress placed additional limits on the president’s authority compared to a predecessor law.
