The plea on November 5 for the Trump Tariffs was fascinating as justices grappled with the thorny question of whether a president has the sweeping authority that President Donald Trump claims under the International Emergency Economic Powers Act (IEEPA). The judges were skeptical and uncomfortable with the claim of authority, and the odds were still in the challengers’ favor. However, there is a real chance of a fragmented decision that could still deliver an effective victory for the government.
The counselor
First the counselor. I was very impressed with the performance of Attorney General John Sauer, who has done a brilliant job in weaving historical and precedential arguments in favor of the tariffs. He had a difficult case and sometimes a difficult audience, but maintained a coherent and consistent position.
Many were surprised that challengers chose liberal firebrand Neil Katyal as counsel on the other side. Kavanaugh even joked about the incongruity of Katyal, who argued for issues of non-delegation. Katyal struggled on points and Judge Amy Coney Barrett once hit him for seemingly reversing his position during oral arguments. Katyal, however, raised key points against the claim of legal and constitutional authority.
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Overall, the administration faced troubling moments in the argument, with Chief Justice John Roberts repeatedly referring to tariffs as a clear “tax” and Justice Neil Gorsuch repeatedly bringing up the “tax.”doctrine of big questionsNeither works well for the government. If this is a tax, it would likely be seen as a usurpation of Congress’s inherent tax authority.
An exterior view of the Supreme Court on June 20, 2024 in Washington, DC The Supreme Court just held arguments on President Donald Trump’s tariffs. (Photo by Andrew Harnik/Getty Images)
The number of heads
However, the head count becomes more difficult when you sort through the judges’ specific questions.
We start with the clear votes in favor of the challengers by Justices Sonia Sotomayor and Ketanji Brown Jackson. At times, both justices even seemed to take on the role of counsel in clearing up the confusion left by the challengers and guiding them back to what they considered firmer ground.
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Justice Elena Kagan was more circumspect, as usual, but still clearly leaning against the government.
That leaves two votes to reject the tariffs.
The most obvious candidate would be Barrett, who came down hard on Sauer with questions about the largely unprecedented scope of the Trump tariffs. Much of this revolved around the meaning of the terms “regulate imports” in IEEPA. Barrett pointedly asked, “Can you point to another place in the code or any other time in history where that phrase, along with ‘regulate imports’, has been used to grant authority to impose tariffs?”
Sauer emphasized that a previous law was used in this way, but Barrett pushed back repeatedly and was clearly not satisfied. At one point Sotomayor snapped (prematurely in my opinion) at Sauer and said, “Just answer the judge’s question.”
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Nevertheless, Barrett offered the government some hope in questioning the challengers.
She focused on the fact that licensing is within the president’s power:
Supreme Court of the United States (front row L-R) Associate Justice Sonia Sotomayor, Associate Justice Clarence Thomas, Chief Justice of the United States John Roberts, Associate Justice Samuel Alito and Associate Justice Elena Kagan, (back row L-R) 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 DOULIERY/AFP via Getty Images)
JUSTICE BARRETT: “So this licensing thing is important to me. And do you agree that under IEEPA the President could impose — could regulate the trade by imposing a licensing fee?”
Katyal seemed to struggle with this when Barrett noted that he had previously stated that there is little difference between a permit and a rate. Barrett said that, if so, a president could similarly regulate the trade with a licensing fee.
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Mr. KATYAL: “No fee. So I should have said this before. But licensing is different from license fee. IEEPA and TWEA authorize licenses, not license fees. And as far as I know, no president has ever charged fees under these two statutes for the licenses. So fees are impermissible. Licensing is fine.”
JUSTICE BARRETT: “But I thought you conceded to Judge Gorsuch that there was no functional difference between a tariff and a license fee.”
Nevertheless, Barrett offered the government some hope in questioning the challengers.
Mr. KATYAL: “Well, if the licensing fees are just too high, I haven’t admitted that.”
JUSTICE BARRETT: “Okay.”
Barrett continued to tell Katyal that she was not following his arguments. Barrett also seemed intrigued by the incongruity that a president could use embargoes or quotas to effectively shut down trade completely, so why shouldn’t he be allowed to use the slightest bit of power?
The fifth vote could have come from Gorsuch, but here too the motivations were strikingly different from those of the other justices.
Gorsuch clearly viewed the delegation of authority as problematic and also raised the issue of the “doctrine of big questions.” However, he was also most effective in hammering Katyal on arguments with clear meaning, noting that the verb “regulate” is “broad.”
If Gorsuch were to argue that the delegation is unconstitutional, he could end up in the minority, but would then be able to give the president the legal argument about the broad implications of “regulating imports.”
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Judge Brett Kavanaugh was most helpful to the government in returning to the history of President Richard Nixon’s 10% global tariffunder the Trading with the Enemy Act, the predecessor to IEEPA.
Overall, the administration faced troubling moments in the argument, with Chief Justice John Roberts repeatedly referring to tariffs as a clear “tax” and Justice Neil Gorsuch repeatedly bringing up the “tax.”doctrine of big questions.”
He also highlighted how the court in FEA v Algonquin SNG (1976) allowed the exercise of tariff powers. At one point he denounced Katyal’s attempt to rewrite the decision, saying, “Algonquin had no such thing, but move on.”
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There is a chance that the challengers could win a majority with Barrett and possibly another conservative, such as Gorsuch or Roberts. However, it is also possible that, as the judges delve into the details, they will discover a fragmented rationale that ultimately works to the administration’s advantage.
In the meantime, Congress may want to get to work in addressing what Barrett described as “the mess” of reimbursement if the tariffs were found to be illegal.
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