Supreme Court justices struggle with Trump tariffs authority claims

Oral argument on November 5 in favor Trump’s definitions It was a fascinating affair as the justices grappled with the complex question of whether the president has the sweeping authority claimed by President Donald Trump under the International Emergency Economic Powers Act (IEEPA). The judges were skeptical and uncomfortable with the claim to power, and the odds were still in the challengers’ favour. However, there is a real chance of a split decision that could still deliver an effective win for the administration.

Counselor

First, advice. I was very impressed by the performance of Solicitor General John Sawyer, who did a fantastic job of weaving together historical arguments and precedent in favor of tariffs. His cause was difficult and at times his audience difficult, but he maintained a coherent and consistent stance.

Many were surprised that the contenders chose controversial liberal Neil Katyal as their advisor on the other side. Kavanaugh even made a quip about Katyal’s inconsistency in discussing issues like delegation. Katyal struggled in points and Judge Amy Coney Barrett He hit him once because he appeared to have reversed his position in oral argument. However, Katyal made the main points against the claim of legal and constitutional authority.

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Overall, the administration has faced troubling moments in the debate, with Chief Justice John Roberts repeatedly referring to tariffs as an apparent “tax,” and Justice Neil Gorsuch repeatedly raising the “tax.”The Great Questions of DoctrineNeither is working well for the administration. If this were a tax, it would likely be viewed as a usurpation of Congress’ inherent tax power.

An outside view of the Supreme Court on June 20, 2024, in Washington, D.C. The Supreme Court has just held arguments on President Donald Trump’s tariffs. (Photo by Andrew Harnick/Getty Images)

Head number

However, head counting becomes more difficult when you comb through the judges’ specific questions.

We begin with the clear vote in favor of the challengers by Justices Sonia Sotomayor and Ketanji Brown Jackson. Indeed, at times, both justices appeared to be assuming the role of counsel in clearing up the confusion left by the objectors and directing them back to what they saw as more solid ground.

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Justice Elena Kagan, as usual, was more cautious, but still clearly leaned against the administration.

This leaves two more votes to reject the tariffs.

The most obvious candidate is Barrett, who has lambasted Sawyer with questions about the largely unprecedented scope of Trump’s tariffs. Much of this has turned into the meaning of IEEPA’s “import regulation” terminology. Barrett pointedly asked: “Can you point to any other place in the code or any other time in history where that phrase, along with ‘import regulation’, was used to give the authority to impose tariffs?”

Sawyer stressed that a previous law had been used in this way, but Barrett came back again and again and was clearly not satisfied. At one point, Sotomayor (prematurely, in my view) attacked Sawyer and said, “Just answer the justice question.”

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However, Barrett offered management some hope in questioning competitors.

It focused on the fact that licenses fall within the authority of the president:

United States Supreme Court (front row from left) Associate Justice Sonia Sotomayor, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Samuel Alito, and Associate Justice Elena Kagan, (back row from left) Associate Justice Amy Coney Barrett, Associate Justice Neil Gorsuch, Associate Justice Brett Kavanaugh and Associate Justice Ketanji Brown Jackson pose for their official portrait in the East Conference Room of the Supreme Court Building on October 7, 2022, in Washington. DC (Olivier Daulieri/AFP via Getty Images)

JUDGE BARRETT: “So, this licensing question is important to me. And do you agree that under IEEPA, the president can impose – can regulate commerce by imposing a licensing fee?”

Katyal seemed to struggle with this when Barrett pointed out that he had previously stated that there was a simple difference between a license and a tariff. If that were the case, the president could regulate the trade in the same way with licensing fees, Barrett said.

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Mr. Katyal: “It’s not a fee. So, I should have said this earlier. But a license is different from a license fee. IEEPA and TWEA authorize licenses, not a license fee. No president has ever, to my knowledge, ever charged a fee under those two laws for licenses. So, a fee is not allowed. A license is acceptable.”

Justice Barrett: “But I think you conceded to Justice Gorsuch that functionally there is no difference between a tariff and a license fee.”

However, Barrett offered management some hope in questioning competitors.

Mr. Katyal: “Well, if – if the license fee is just for – I didn’t waive that.”

Judge Barrett: “Okay.”

Barrett kept telling Katyal that she was not following his arguments. Barrett also seemed fascinated by the contradiction that if a president can use bans or quotas to effectively shut down all trade, why shouldn’t he be allowed to use lesser powers?

It is possible that the fifth vote would come from Gorsuch, but again, his rationale was strikingly different from those of the other justices.

Gorsuch clearly saw delegation of authority as problematic and also raised the “big questions principle.” However, he has also been most effective in attacking Katyal in plain-sense arguments, pointing out that the verb ‘regulate’ is ‘capacious’.

If Gorsuch claims the delegation is unconstitutional, he may find himself in the minority, but then he may be able to give the president the legal argument on the broad consequences of “import regulation.”

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Justice Brett Kavanaugh has been the administration’s most helpful go-back in history President Richard Nixon’s 10% global tariffunder the Trading with the Enemy Act, the predecessor of IEEPA.

Overall, the administration has faced troubling moments in the debate, with Chief Justice John Roberts repeatedly referring to tariffs as an apparent “tax,” and Justice Neil Gorsuch repeatedly raising the “tax.”The Great Questions of Doctrine“.

He also highlighted how, in FEA v Algonquin SNG (1976), the Court permitted the exercise of tariff powers. At one point, he criticized Katyal’s efforts to rewrite the resolution and said: “The Algonquin had no such thing, but it carried on.”

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There’s a chance the contenders could get a majority with Barrett and perhaps another conservative, like Gorsuch or Roberts. However, it is also possible that when judges delve into the details, they may find a fragmented rationale that ultimately works to the administration’s advantage.

in the meantime, Congress may want to start In addressing what Barrett described as the “chaos” of reimbursement if the tariffs were found to be illegal.

Click here to read more from Jonathan Turley