The high court’s conservative majority largely blesses broad executive power, but some justices are also wary of it in the economic realm.
The looming Supreme Court showdown over President Donald Trump’s tariffs amounts to an epic clash between two of the most deeply ingrained tenets of the conservative legal movement.
The first is that presidents need and are entitled to extreme deference on matters of national security and foreign policy. That precept suggests the six conservative justices may be willing to uphold Trump’s unprecedented move to bypass Congress and unilaterally impose sweeping global tariffs.
On the other hand, an indisputable hallmark of the Roberts court is a deep mistrust for government meddling in the free market. That ideological predilection, which has fueled a slew of pro-business, anti-regulatory rulings, could prompt the court’s conservatives to view Trump’s tariffs more skeptically than they view many of his other, non-economic policies.
“I think that some of the justices that matter are going to feel a bit torn,” said Jonathan Adler, a professor at William and Mary Law School. “What’s interesting here is that this case requires some of the conservative justices to confront a conflict between different strands of their own jurisprudence.”
In the case set for oral arguments Wednesday, Trump is asking the justices to overturn lower-court decisions that declared many of the tariffs — the centerpiece of Trump’s economic agenda — an illegal overreach. The lower courts found that a 1977 law, the International Emergency Economic Powers Act, did not authorize the president to impose such broad tariffs.
Foreign relations and the Kavanaugh factor
Lurking just below the surface in the case is a key dynamic: Should Trump’s tariffs be treated as a garden-variety economic policy, or are they a core part of the president’s management of international relations and national security?
“How this case comes out will depend in large part on what the frame or the lens on it is,” said Vikram Amar, a law professor at the University of California at Davis. “Is this a case about unbridled, unauthorized — at least not explicitly authorized — broad executive authority, or is this a case about presidential ability to discharge foreign affairs and national security responsibilities?”
That question could be most acute for Justice Brett Kavanaugh, whose public appearances frequently include an account of his searing experiences working in President George W. Bush’s White House after 9/11.
Kavanaugh is often the high court’s most outspoken voice for the president’s need for flexibility and dexterity in response to international challenges. But he is also highly skeptical of government power in the economic realm.
A year before Trump nominated him to the Supreme Court, Kavanaugh declared his fealty to the conservative theory known as the “major questions doctrine” — the notion that courts should block executive branch actions of widespread impact when their legal basis is ambiguous.
Staking out his position in a case involving net neutrality rules, Kavanaugh said he saw the doctrine applying to “a narrow class of cases involving major agency rules of great economic and political significance.”
“If an agency wants to exercise expansive regulatory authority over some major social or economic activity … an ambiguous grant of statutory authority is not enough,” Kavanaugh wrote. “Congress must clearly authorize an agency to take such a major regulatory action.”
Under this sort of test, the widespread tariffs Trump implemented would be on shaky legal ground because the 1977 law at issue, known as IEEPA, does not expressly empower the president to enact tariffs.
However, just four months ago, Kavanaugh emphasized that the court’s skepticism about legally dubious executive branch actions has an important limit.
“The major questions canon has not been applied by this Court in the national security or foreign policy contexts. … The canon does not translate to those contexts because of the nature of Presidential decisionmaking in response to ever-changing national security threats and diplomatic challenges,” he wrote in a solo concurring opinion in a case about funding to improve internet and phone service for low-income and rural Americans.
Trump claims tariff power
Trump announced his sweeping, worldwide “Liberation Day” tariffs in April, hitting nearly every country in the world with a minimum 10 percent tariff and including rates reaching 50 percent on some nations. The president claimed the authority to impose the tariffs under IEEPA, which Congress passed to try to rein in broader powers granted by a predecessor statute.
IEEPA gives the president the right to “regulate … importation” of items from foreign countries during a presidentially declared national emergency. It’s fairly clear that in such an emergency the president has the power to put an embargo on foreign individuals or particular foreign countries.
The administration contends that broader power to regulate and prohibit imports implies the related power to impose import taxes better known as tariffs, but opponents of Trump’s move say Congress knew how to confer that power on the president if it wanted to do so.
“Nowhere does it say tariffs, taxes, duties,” noted Elizabeth Goitein, who studies emergency powers at New York University’s Brennan Center.
A federal appeals court ruled, 7-4, in August that Trump’s broad tariffs exceeded his authority under IEEPA. However, the Federal Circuit’s majority stopped short of saying the law could never be used to impose more targeted tariffs.
Watching the court’s center
Many experts consider Kavanaugh likely to lean toward blessing the tariffs, although his vote isn’t a sure thing. Justices Clarence Thomas, Samuel Alito and Neil Gorsuch are thought by court watchers to be even more likely to uphold the tariffs. Assuming the three liberal justices vote against the administration, that leaves Chief Justice John Roberts and Justice Amy Coney Barrett in play, although under that scenario both Roberts and Barrett would have to join the liberals to assemble enough votes to strike down the tariffs.
“The center of the court is going to be especially interesting to watch,” Roman Martinez, a former law clerk to Kavanaugh and Roberts, said during a discussion at Georgetown Law.
“I think this case will probably split the conservatives,” said Cary Coglianese, a University of Pennsylvania law school professor who specializes in administrative law and regulatory processes.
Among the liberal justices, the Trump administration’s strongest prospect for support in the tariffs cases may be Obama appointee Elena Kagan. Like Kavanaugh, she saw presidential decisionmaking up close in White House jobs, although hers were under President Bill Clinton.thathis travel ban policy. That seemed to show deference to the president’s need for flexibility, although she joined the court’s liberal wing in dissent six months later when the court issued a final, 5-4 ruling upholding the travel ban.
‘The stakes in this case could not be higher’
Some court watchers say the conservative justices, including Trump’s three high court appointees, could be hesitant to rule against Trump on an issue so central to his policy agenda. Just as many saw politics at work in the Supreme Court’s 2012 decision to leave a key part of President Barack Obama’s signature health care law in place, the justices might decide not to provoke the political fury that would be unleashed by striking down the tariffs.
“This, along with ICE and immigration … is the paramount domestic policy initiative of this president,” said Donald Verrilli, who served as solicitor general under Obama. “One way of thinking about this is that the justices who are going to determine the outcome of this case feel like they need a really pretty strong case on the legal merits before they’re going to decide to cross swords with the president.”
The tariffs case also comes to the court amid an extraordinary winning streak for Trump and his policies. Since January, Trump has brought an unprecedented number of emergency appeals to the justices and has prevailed in more than 20 of them, freeing his hand to gut foreign aid, fire leaders of federal agencies, and strip hundreds of thousands of immigrants of deportation protections.
Trump and his administration have sought to keep that streak going by painting a potential defeat for his tariff policy as so cataclysmic that the justices would be ill-advised to take that risk.
Trump warned on the eve of the arguments that the case “is, literally, LIFE OR DEATH for our Country.”
Trump’s lawyers have also pushed the rhetorical envelope. The Trump administration’s formal plea to the high court to take up the tariff case turned heads in the legal community by including language so hyperbolic that it seemed designed to remind the justices of the intense retort they are certain to receive from Trump if they rule against him.
“The stakes in this case could not be higher,” Solicitor General D. John Sauer wrote. “The President and his Cabinet officials have determined that the tariffs are promoting peace and unprecedented economic prosperity, and that the denial of tariff authority would expose our nation to trade retaliation without effective defenses and thrust America back to the brink of economic catastrophe.”
The Wall Street Journal effect
That sort of apocalyptic verbiage is a rarity in Justice Department filings with the high court. While the justices will likely be reluctant to mount a direct challenge to those sorts of presidential predictions, the administration’s sky-is-falling claims could actually prompt some of the court’s conservatives to give Trump less running room, lawyers who practice before the court said.
Even as the legal challenges have been playing out, Trump has raised doubts about whether the tariffs his imposed are a response to bona fide emergencies or more mundane concerns. Last month, Trump declared he was imposing an additional 10 percent tariff on Canada to express his irritation at a TV advertisement the province of Ontario aired showcasing President Ronald Reagan’s opposition to tariffs.
“If the justices think that these assertions are kind of pretextual, I think that could shape their thinking about the other more purely legal issues in the case,” said Martinez, who authored an amicus brief for the Chamber of Commerce opposing the tariffs. “It could … bring into sharp relief in their eyes the dangers of giving the president this broad authority to impose tariffs. So, that’s a dynamic that could play out, as well.”
Another factor undercutting the potential political blowback the court could receive from voiding the Trump tariffs: Most of the Republican establishment is profoundly unenthusiastic about them. Even some Trump backers might quietly celebrate a court ruling preventing the kind of broad-based tariffs the president announced in April.
For decades, liberals and many legal academics have argued that the Roberts court is beholden to business interests, delivering a broad blow to the power of federal government agencies to regulate businesses, reining in federal authority to prevent development on environmental grounds and weakening federal enforcement of securities laws.
If one subscribes to the notion that the opinions of some billionaires hold outsized sway at the court, well-heeled business people and investors have been sharply negative about the tariffs, although the markets have shrugged them off at least for now.
“Tariffs are taxes,” one of many Wall Street Journal editorials skewering Trump’s tariffs declared. “If he can impose a tax on any imported product any time he wants, he really has the power of a king.”
In short, while a ruling against the tariffs would surely infuriate Trump, it wouldn’t do much if anything to hurt the conservative justices’ standing in their legal, political and social circles.
A ruling against him wouldn’t leave Trump without tools
If the justices are looking for some sort of middle ground on tariffs or are divided in a way that makes an up-or-down ruling on Trump’s powers infeasible, they have a couple of options.
The court could reject Trump’s broadest and most extreme tariffs, while highlighting his options under laws other than IEEPA. Many legal experts have pointed to powers Congress gave the president in 1974 to put quotas on imports and impose tariffs of up to 15 percent “to deal with large and serious United States balance-of-payments deficits,” a concept that trade specialists say encompasses trade deficits.
Those experts argue that Congress’ decision to pass that law, known as the Trade Act, undercuts Trump’s arguments that he should be able to use IEEPA to address the trade deficit problem.
However, the Trade Act comes with clear limits, declaring that those tariffs and trade restrictions must be “temporary” and last no longer than five months, unless Congress extends them. That may not represent enough of a cudgel for the Trump administration to use in talks with foreign countries in an effort to get them to agree to longer-lasting trade deals.
Another concession the Supreme Court could offer Trump is to allow some tariffs involved in the legal fight to remain in effect. Part of the battle is over tariffs he imposed on Canada and China over trafficking in fentanyl and drug precursors into the U.S. and on Mexico to address those problems as well as migration and human trafficking.
A ruling upholding those tariffs, but striking down the more global import taxes linked to trade deficits, would allow Trump to claim a partial win but probably won’t insulate the justices from a presidential rebuke.
The optics of turnabout
Despite the efforts some justices may make to distinguish the worldwide tariffs from other policies federal courts have blocked under the major questions doctrine, if the court allows Trump’s tariffs, many politicians and commentators are likely to accuse the justices of a double-standard.
Exhibit No. 1 in this argument will be the Supreme Court’s ruling striking down one of President Joe Biden’s signature policies: his student debt relief plan. That 6-3 decision, wielding the doctrine to invalidate student debt forgiveness, was handed down by the same nine justices over two years ago.
“It’s arguably quite analogous,” Goitein said. “Will the Supreme Court act consistently?
Of course, the justices might say in a ruling upholding the Trump tariffs that they are pivoting based on legal substance and not politics. But for a court that many members of the public already view skeptically, the result may look partisan.
“This will be a true test of the Supreme Court in many, many ways,” Goitein said.