Even Trump’s own solicitor general seemed to know the justices weren’t buying his argument.
It’s always hazardous to read too much into Supreme Court oral arguments. But if today’s arguments are any indication, the Trump tariffs are in serious legal trouble.
I won’t rehash here the full legal arguments over the Trump Administration’s efforts to shoehorn global tariffs into the “emergency powers” framework of the International Emergency Economic Powers Act of 1977 (IEEPA), which I’ve covered here and here. But even just as a nose-counting exercise, the argument did not go well for Solicitor General John Sauer.
That’s not Sauer’s fault; he is a talented oral advocate, and the government’s brief did the best it could to focus the case away from the congressional taxing power and the thin reed of vague statutory language that connects IEEPA’s authority to “regulate” the “importation or exportation” of goods to the tariffs, and talk instead about the traditional deference of the courts to presidential foreign policy powers and presidential decisions about emergencies. His problem was twofold. First, he was claiming extremely broad and unprecedented presidential authority, to the point where he acknowledged that Trump’s position could be used by a Democratic president to declare a global climate change emergency. Second, his argument depends upon the justices not asking too many close questions about whether the power to tax is really part of the traditional foreign policy powers of the commander-in-chief. After Justice Neil Gorsuch fretted that “It’s inherent authority all the way down, you say,” Sauer was compelled to concede that presidents have no inherent tariff powers (at least, not outside of wartime).
Sauer probably always had three justices against him: Gorsuch for his skepticism of delegated powers given by Congress to the executive, and Justices Sonia Sotomayor and Ketanji Brown Jackson, who are hostile to virtually all things Trump. It got worse from there. Justice Elena Kagan, the one liberal who might have been persuaded to think broadly about presidential powers, was completely hostile to Sauer. Chief Justice John Roberts, while naturally sympathetic to executive power and to arguments for judicial deference, was nonetheless (and perhaps predictably) concerned that Sauer was over-reading past precedents, drawing major powers from vague language, and asserting powers that had no reasoned stopping point. Also, the man who upheld the Obamacare regulatory mandate on the theory that it was a tax was unsympathetic to arguments that tariffs are really regulations, and only incidentally taxes. Justice Amy Coney Barrett repeatedly went after Sauer’s statutory arguments and his one effort to find a Supreme Court precedent in his favor (she was dismissive of his citation to the Yoshida case, which she brushed aside as “an intermediate appellate court” decision). She noted how little precedent there was anywhere for using the word “regulate” to find a tariff power.
That leaves only three justices who might be counted sympathetic. Justice Brett Kavanaugh went out of his way not to show his cards, and Justice Clarence Thomas asked only the most open-ended questions. Perhaps a sign of how bad things were for Sauer is that Justice Samuel Alito, with audible frustration, asked Neal Katyal (arguing the case for the challengers) a series of questions about why the government might have been able to justify some of the tariffs through statutes other than IEEPA – an argument that Sauer has not made, and on which the Court is very unlikely to rule.
Then, there are the dogs that didn’t bark. There was not much interest in the Federal Circuit’s compromise view that some less-expansive tariffs might be justifiable under IEEPA — a point Katyal didn’t try to advance after Sauer’s opening brief trashed it, and which is less coherently defensible than the broader argument that no tariff power exists under IEEPA. Likewise, the administration’s best argument may be that the fentanyl-related tariffs are more properly within the sorts of emergencies envisioned by IEEPA, and that the Court of International Trade wrongly ruled that tariffs were impermissible to use as leverage to get action on fentanyl. Even Jackson observed that presidential negotiating leverage is an allowable use of tariff power – if that power is in the statute in the first place. Barrett asked Katyal about difficulties that would arise in ordering the administration to give back the tariffs it has collected if it loses, which she described as a “complete mess.” But there was no debate about the propriety of the Court issuing an injunction against the tariffs, and Katyal noted that the government had agreed to repay his five clients if they win, that they didn’t bring a class action and thus aren’t seeking anybody else’s money back, and that there are processes in place that the Court really doesn’t need to get into if the government loses.