Chief Justice John Roberts questioned why Trump believed he had the authority to impose tariffs under a nearly 50-year-old law that has never been used for that purpose.
Both conservative and liberal Supreme Court justices on Wednesday sharply questioned President Donald Trump’s use of emergency power to impose sweeping tariffs on countries around the world, casting doubt on the future of one of his signature economic policies.
One of the core issues before the high court in a pair of consolidated cases — brought by a dozen Democratic-run states and two sets of private companies — is whether Trump has grabbed power that constitutionally belongs to Congress in imposing the duties.
Chief Justice John Roberts questioned why Trump believed he had the authority to impose tariffs under a nearly 50-year-old law, the International Emergency Economic Powers Act, that has never been used for that purpose.
Tariffs are a form of taxation and “that has always been the core power of Congress,” Roberts said. “So, to have the president’s foreign affairs power trump that basic power for Congress seems to me to kind of neutralize between the two powers, the executive power and the legislative power.”
The Trump administration argues that Congress delegated that authority to the president under the 1977 emergency powers act, a sanctions law that does not contain the word “tariff” and that no previous president has used in the way that Trump has.
The law, known as IEEPA, does allow the president to “regulate” imports. That naturally includes the use of tariffs, particularly in combination with the president’s inherent powers to conduct foreign policy, said Solicitor General D. John Sauer, arguing on behalf of the Trump administration.
Although Trump and other administration officials have repeatedly bragged about how much revenue the tariffs produce, Sauer insisted — during oral arguments that spanned more than two and a half hours — that was not their primary purpose.
“These are regulatory tariffs. They are not revenue-raising tariffs. The fact that they raise revenue is only incidental. The tariffs would be most effective, so to speak, if no person ever paid them,” Sauer said, arguing that the tariffs are intended to get foreign countries to open up their markets.
Justice Sonia Sotomayor, an appointee of President Barack Obama, said she struggled to understand the government’s argument.
“It’s a congressional power, not a presidential power, to tax. And you want to say tariffs are not taxes, but that’s exactly what they are,” Sotomayor said.
The justices press the administration
Conservative Justices Amy Coney Barrett, Brett Kavanaugh and Neil Gorsuch — all Trump appointees — joined liberal Justices Sotomayor, Elena Kagan and Ketanji Brown Jackson in raising doubts about the administration’s arguments.
“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.
In response, Sauer mentioned the Trading with the Enemy Act, a 1917 law that Richard Nixon used in 1971 to impose a 10 percent surcharge on imports as part of a broader economic policy to address a balance of payments crisis.
That action was later upheld by a federal appeals court, but challengers of Trump’s tariff policy say IEEPA was passed in 1977 to constrain the president’s emergency powers in peacetime, not expand them. The challengers note Congress gave the president the authority in the 1974 Trade Act to impose a 15 percent tariff on imports for five months and that is the authority Trump should have used instead of IEEPA.
Both Gorsuch and Barrett questioned whether Congress would ever be able to pare back tariff power should the court rule that IEEPA allowed the president to impose broad tariffs, saying any such action would likely take a veto-proof majority of both chambers.
“It’s a one way ratchet,” Gorsuch said, suggesting surrender of that much authority to the president might violate the Constitution.
Neal Katyal, a former deputy solicitor general in the Obama administration, arguing against the tariffs on behalf of the private companies, jumped on the justices’ uncertainty.
“It comes down to common sense,” Katyal said. “It’s 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 … As Justices Gorsuch and Barrett just said, this is a one-way ratchet; we will never get this power back if the government wins this case.”
Congress just last week demonstrated how difficult it is for lawmakers to overturn the emergencies Trump has declared in order to impose tariffs. Even though a bipartisan majority in the Senate voted to terminate three of Trump’s emergency declarations, the Republican leadership in the House has blocked the votes on the measures until the end of January.
Grappling with Trump’s use of an emergency law
Barrett and Gorsuch also suggested the Trump administration could still find a different way to impose the tariffs while using IEEPA.
“We’ve been focused on ‘regulate importation,’ but actually the statute says the president may, by means of licenses or otherwise, regulate importation,” Gorsuch said. “Maybe the president could simply recharacterize these tariffs as licenses or rejigger the scheme so that they are licenses.”
Katyal dismissed that notion, saying it would be too open-ended since it would still allow the White House “under the word ‘license’ … to tariff the world,” Katyal said.
Sauer argued that the five-decade-old law doesn’t give presidents a completely free hand, but requires a formal finding of an emergency.
Kagan fired back with an apparent reference to the flurry of 30 emergency appeals the administration has filed since Trump was sworn in earlier this year, suggesting the president seems to discover many situations he views as exigent.
“It turns out we’re in emergencies — everything all the time, about, like, half the world,” she said.
Sotomayor also seemed to scoff at the gravity of some actions Trump has deemed worthy of additional tariffs, noting that he recently announced an additional 10 percent duty on Canadian products due to an ad a provincial government ran “during the World Series.”
And Gorsuch raised the possibility that a future president could declare a climate emergency to justify imposing 50 percent tariffs on gasoline-powered cars and auto parts.
“I think it’s very likely that could be done,” Sauer conceded. “This administration would say that’s a hoax, it’s not a real crisis. But that would be a question for Congress [to decide] under our interpretation, not for the courts.”
Trump’s tariffs on the line
Two sets of tariffs are being challenged in the current case: one aimed at stopping incoming shipments of fentanyl and precursor chemicals from China, Canada and Mexico and a broader action affecting nearly every country to reduce the “large and persistent” U.S. trade deficit.
Trump imposed the fentanyl tariffs on China, Canada and Mexico not long after taking office, and rolled out the reciprocal tariffs at a White House event on April 2 that he dubbed “Liberation Day,” reflecting his desire to reduce U.S. dependence on imports.
Trump said the high number of deaths due to fentanyl constituted a national emergency that justified using tariffs to pressure China, Canada and Mexico into stopping the drug and its precursor chemicals from entering the U.S.
He also said the “large and persistent” U.S. trade deficit had developed into a national emergency that justified imposing a broader set of “reciprocal” tariffs on most countries, which he then used to pressure trading partners such as the European Union, Japan and several others into negotiating trade deals.
The U.S. Court of Appeals for the Federal Circuit, in 7-4 ruling in August, upheld a May decision by the U.S. Court of International Trade, which concluded that Trump exceeded his authority in imposing both the fentanyl tariffs and the reciprocal tariffs.
However, in a case combining separate legal challenges from a group of private companies and a dozen Democratic-run states, the appeals court suggested the president may potentially have power to impose other types of tariffs under the same emergency law.
“The only issue we resolve on appeal is whether the Trafficking Tariffs and Reciprocal Tariffs imposed by the Challenged Executive Orders are authorized by IEEPA,” the federal appeals court said. “We conclude they are not.”
The appeals court’s majority said its conclusion that Trump’s tariffs were illegal was bolstered by a series of Supreme Court decisions articulating the “major questions doctrine,” a legal theory rejecting claims that Congress implicitly granted the executive sweeping powers.
After the Supreme Court agreed to take up the tariffs case, it also incorporated a third legal challenge brought by a second group of private companies that had been proceeding on a separate track.
Those litigants, two Illinois-based toy companies, won a more clear-cut victory in the U.S. District Court for the District of Columbia, where Judge Rudolph Contreras ruled that the emergency law did not provide presidents any power to impose tariffs to address international emergencies.
Administration officials acknowledge that Trump could use other authorities to reimpose many, if not all, of the IEEPA tariffs. However, they argue the 1977 law is the easiest to use while giving the president the most negotiating authority.
Among those listening to the back and forth in the packed courtroom Wednesday were at least three of Trump’s top aides, Treasury Secretary Scott Bessent, Commerce Secretary Howard Lutnick and U.S. Trade Representative Jamieson Greer, who have vigorously defended the emergency tariffs as crucial to the president’s constitutional authority to conduct foreign policy.
Several lawmakers were also on hand, including Republican Sen. Mike Lee of Utah and Rep. Jason Smith of Missouri, as well as Democratic Sens. Amy Klobuchar of Minnesota and Ed Markey of Massachusetts.
Trump had flirted with the idea of attending the oral arguments, himself, but decided against it. In a post Tuesday night on Truth Social, he said the outcome of the case was “literally, LIFE OR DEATH for our country.”