Lawyers representing President Donald Trump’s administration are facing tough questions from conservative and liberal U.S. Supreme Court justices over the legality of the Republican president’s sweeping tariffs in a case with global economic implications that is a critical test of Trump’s authority.
On Wednesday, the justices pressed Attorney General John Sauer on the administration’s argument about whether President Trump violated Congressional authority in imposing tariffs under the National Emergencies Act of 1977. They also asked Sauer whether President Trump’s application of the indefinite tariff bill is a significant action by the executive branch that requires explicit Congressional approval.
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The argument was made in an appeals court filed by his administration after a lower court ruled that his unprecedented use of a controversial 1977 federal law to impose tariffs exceeded its authority. The companies affected by the tariffs and 12 U.S. states, most of them Democratic-led, challenged the tariffs.
President Trump is ramping up pressure on the Supreme Court, which has a 6-3 conservative majority, to maintain tariffs, which he has used as a key economic and foreign policy tool. Tariffs on imported goods could cost the United States up to trillions of dollars over the next decade.
Sauer began the debate by defending the legal basis adopted by the president, but quickly faced questions that raised skepticism about the administration’s claims about the text and purpose of the statutes in question.
President Trump has invoked the International Emergency Economic Powers Act (IEEPA), imposing tariffs on nearly all of the United States’ trading partners. The law authorizes the president to regulate commerce during a national emergency.
“Congress’ core power” to impose taxes
Sauer said President Trump has determined that the U.S. trade deficit is pushing the country to the brink of economic and national security disaster. Sauer said the tariffs were helping President Trump negotiate trade deals, and rolling back the deal would “expose us to relentless trade retaliation from far more aggressive countries, have devastating economic and national security consequences, and move the United States from a great power to a failure.”
The U.S. Constitution gives Congress, not the president, the power to impose taxes and tariffs. The administration argued that IEEPA authorizes the tariffs by giving the president the power to “regulate” imports to deal with emergencies.
Conservative Chief Justice John Roberts told Sauer that taxing Americans “has always been a core power of Congress,” adding that these tariffs appear to raise revenue, which is considered Congress’ role in the Constitution.
Conservative Justice Amy Coney Barrett questioned Sauer’s argument that IEEPA’s language, which gives the president emergency powers to “regulate imports,” also includes tariffs.
“Could you point to other places in the Code or in history where the words “regulate imports” have been used together to confer authority to impose duties?” Barrett asked.
Treasury Secretary Scott Bessent said ahead of the debate that if the Supreme Court rules against President Trump’s use of IEEPA, the administration would turn to other legal authorities to support the tariffs, meaning the tariffs would remain in place. President Trump has invoked other laws and imposed several additional tariffs. In this case they don’t matter.
Key Question Principles
Sauer said the president’s actions in imposing the tariffs did not violate the Supreme Court’s “principal question” doctrine, which requires explicit Congressional approval for executive branch actions of vital economic or political importance. The Supreme Court applied the doctrine to strike down key policies of President Trump’s Democratic predecessor, Joe Biden.
Lower courts ruled against Trump that the tariffs were inadmissible under this doctrine.
Some of the justices questioned Mr. Sauer about whether President Trump’s tariffs could withstand scrutiny under the “principal question doctrine,” noting that Congress did not include the word tariff in IEEPA.
Roberts asked Sauer to explain why the court’s principal inquiry doctrine does not apply to President Trump’s tariffs under IEEPA.
“That justification is being used as a power to impose tariffs on any product, in any country, in any amount, for any period of time. That’s not to say the power doesn’t exist, but it’s certainly the primary power, and the basis for that claim seems inadequate. So why doesn’t it apply?” Roberts asked.
Sauer said the principle does not apply to foreign affairs, but Roberts raised the question of whether the president’s authority in this area could override Congress’ inherent authority.
“The way to do that is to tax the American people, and that has always been the core power of Congress,” Roberts told Sauer.
President Trump is the first president to use IEEPA to impose tariffs, one of the many ways he has aggressively pushed the boundaries of executive power in a variety of areas since returning to office, including cracking down on immigration, firing federal employees, and deploying domestic military forces.
Liberal Justice Elena Kagan pressed Sauer on his argument that Trump’s tariffs are backed by the president’s inherent powers under the Constitution. Kagan said the power to levy taxes and regulate foreign trade is typically considered a “typical” power that belongs to Congress, not the president.
Liberal Justice Ketanji Brown Jackson said IEEPA was intended to limit the president’s powers, not expand them.
“It’s clear that Congress was trying to curtail the president’s emergency powers,” Jackson said.
Conservative Justice Brett Kavanaugh asked Sauer about the 10% tariff that then-President Richard Nixon imposed on some imports in the early 1970s under IEEPA’s predecessor law.
Mr. Kavanaugh asked, “What is the significance of the Nixon example and precedent here? Because I think understanding that is very important to correctly adjudicate this case.”
“It’s completely unbelievable.”
Neil Katyal, an attorney representing companies that challenged the tariffs, told the justices that common sense makes it clear that the administration’s interpretation of IEEPA is flawed.
“It is simply incredible that in enacting IEEPA, Congress gave the president the authority to overhaul the entire tariff system and the American economy in the process,” Katyal said.
The question, posed by conservative Justice Neil Gorsuch, suggested that he believed Mr. Sauer’s assertions about the breadth of the president’s inherent diplomatic powers could undermine the constitutional separation of powers between the executive and legislative branches of the federal government.
“What prevents Congress from abdicating all responsibility for regulating foreign trade, much less declaring war, to the president?” Gorsuch asked.
Gorsuch said that if the IEEPA is interpreted as a transfer of authority to the president, Congress cannot realistically take back authority over tariffs. Gorsuch said this interpretation would amount to “a unilateral move away from the people’s elected representatives and a gradual but continuous increase in power in the executive branch.”
Tariffs under IEEPA generated an estimated $89 billion in collections between February 4 and September 23, the latest data released by U.S. Customs and Border Protection.
The Supreme Court sided with President Trump in a series of emergency rulings handed down this year. Critics warn that the government is tentatively allowing Trump’s policies blocked by lower courts amid questions over their legality, and that the justices are rejecting their role as a check on the president’s power.
global trade war
Since returning to office in January, Trump has incited a global trade war, alienated trading partners, increased financial market volatility and increased global economic uncertainty.
He activated IEEPA, which imposes tariffs on imports from other countries to address a national emergency related to the U.S. trade deficit, and in February he used economic leverage against China, Canada and Mexico to curb the trafficking of the frequently abused painkiller fentanyl and other illegal drugs into the United States.
President Trump has used tariffs as a bludgeon to extract concessions and renegotiate trade deals and to punish countries that have drawn his ire on non-trade political issues. These include Brazil’s prosecution of former President Jair Bolsonaro, India’s purchase of Russian oil to help finance Russia’s war in Ukraine, and anti-tariff propaganda by the Canadian province of Ontario.
IEEPA gives the president authority to respond to “unusual and unusual threats” during a national emergency. This has historically been used not to impose tariffs, but to impose sanctions on adversaries or freeze their assets. In passing IEEPA, Congress placed additional limits on presidential authority compared to previous legislation.
The Supreme Court typically takes several months to hear arguments and issue a decision, but the Trump administration is seeking swift action in this case.
