The high court considers whether Trump’s sweeping global tariffs were authorized by an emergency powers law.
Argument Ends After More Than 2.5 Hours
The oral argument in the tariffs case at the Supreme Court wrapped up at 12:45 p.m. Washington time, after more than two-and-a-half hours.
“The case is submitted,” Chief Justice John Roberts said to end the court sitting that began a little after 10:00 a.m.
The court had scheduled 80 minutes for the case, up from the usual 60 minutes.
However, in high-profile cases of national importance, Roberts often allows the arguments to go into overtime.
During today’s argument, U.S. Solicitor General D. John Sauer argued in favor of President Donald Trump’s tariffs.
Attorney Neal Katyal argued against the tariffs on behalf of companies that brought lawsuits to strike them down.
Oregon Solicitor General Benjamin Gutman also argued against the tariffs on behalf of Oregon and other states that brought suit in the case.
Kavanaugh: ‘Odd Donut Hole’ in Statute
Justice Brett Kavanaugh asked Oregon Solicitor General Benjamin Gutman why Congress would create a statute as sweeping as the International Emergency Economic Powers Act (IEEPA) if it didn’t intend to give the president wide leeway.
Kavanaugh said tariffs have traditionally been viewed as an exercise of commerce, not taxation power.
The justice said why would the statute allow the president to have signficant power, so much that he can “shut down trade but can’t do a 1 percent tariff?”
Kavanaugh said that’s an “odd donut hole” for Congress to create in a statute.
Gutman supported the statute, saying it’s “not a donut hole, it’s a different kind of pastry.”
Kavanaugh Asks About Using Tariffs to End Wars
Kavanaugh raised Trump’s reference to using tariffs to end wars, such as high tariffs imposed on India for buying Russian oil, in an effort to end the Russia–Ukraine war.
“Talk about foreign-facing, that’s the most serious crisis in the world,” he said.
The justice also pressed Oregon Solicitor General Benjamin Gutman, who’s arguing for states, on why the president would be allowed to block all imports rather than choose a “more calibrated response” such as tariffs.
“[In] a real emergency, you’re taking away the president’s suite of tools when the one is much more extreme than it’s authorized. That just seems a bit unusual,” he said.
Oregon Solicitor General Says President Can Shut Down All Trade, but Not Impose Tariffs
Oregon Solicitor General Benjamin Gutman, representing a dozen states challenging Trump’s tariffs, said the president could use the International Emergency Economic Powers Act to completely shut down all U.S. foreign trade—but could not impose tariffs.
“Doesn’t it seem like it would make sense then that Congress would want the president to use something that was weaker medicine than completely shutting down trade as a leverage to try to get a foreign nation to do something?” Justice Amy Coney Barrett asked.
Gutman said the apparent imbalance exists because tariffs are revenue-generating, which creates “additional danger of overuse.” There is little incentive for a president to use harsher measures that bring no financial benefit, he said.
Barrett Asks Whether Power to License Could Replace Tariff Use
“This license thing is important to me,” Barrett said, asking Katyal what the difference would be if the president had imposed licensing fees rather than tariffs to do the same thing.
Katyal argued that the president, under the International Emergency Economic Powers Act, had the power to impose licenses but not licensing fees. He said fees to recoup the costs of government services would differ from revenue-raising fees.
Barrett noted the language was the same in the Trading with the Enemy Act of 1917, and Katyal argued that subsequent legislative action confined that authority to the time of war.
“When Congress decided to bring these concepts into peacetime, it severed the wartime roots,” he said.
Gorsuch Suggests Businesses May Need to Rely on ‘Major Questions’ Doctrine
Justice Neil Gorsuch asked the tariff challengers’ attorney, Neal Katyal, whether, based on the plain language of the International Emergency Economic Powers Act (IEEPA), he needs “the major questions [doctrine] to win this case?”
“I kind of think you might,” the justice added.
Katyal said his side’s case does not rise or fall based on the major questions doctrine.
The doctrine limits the ability of executive agencies to act on questions of major political or economic significance without clear authorization from Congress.
Gorsuch said IEEPA authorizes licenses, which are “identical to tariffs.”
The justice said the phrasing in the statute regarding licenses resembles that applying to tariffs. He said the word “regulate” is “capacious,” which means it has a broad meaning.
Katyal said just because the statute covers licenses, that doesn’t mean it necessarily authorizes tariffs.
Kavanaugh Says Precedent Didn’t Require Word ‘Tariff’
Justice Kavanaugh pointed to Federal Energy Administration v. Algonquin, when the Ford administration raised license fees on imported oil to reduce imports. The Supreme Court had rejected the argument that Congress had to use the word “tariff.”
“Algonquin says you don’t need the word ‘tariff,'” Kavanaugh said. “It’s 9–0.”
Katyal said the small businesses weren’t arguing about “the word tariff or any other magic word,” but Algonquin dealt with one product. “This is a billion products,” he said.
Alito Suggests Emergencies Are Sometimes ‘Open-Ended’
Justice Samuel Alito questioned the businesses’ attorney, Neal Katyal, about his claim that the Trump administration is interpreting the use of emergency declarations too loosely to justify the use of tariffs.
“I know you dispute the fact that this is a real emergency,” Alito said. “Maybe it’s not, but isn’t it the very nature of an emergency provision that it’s going to be more open-ended?”
Katyal said the law at issue also “cuts the other way.” He noted that Section 122 of the Trade Act of 1974 was “literally about President Nixon’s proclamation of an emergency,” yet still limited the tariffs to 15 percent for 150 days.
Alito asked whether the same interpretation would apply to President George Bush’s use of military force following the terrorist attacks of 2001. Katyal told the court that the situation then was different because it involved the military, over which the president exercises constitutional power.
Alito Asks Whether Section 338 Gives President Tariff Power
Justice Alito asked whether Section 338 of the Tariff Act of 1930 gives presidents the power to impose tariffs. The law authorizes presidents to impose tariffs of up to 50 percent on countries with most-favored-nation status found to discriminate against the United States.
Katyal said the government hadn’t made these arguments and noted no president ever used those powers.
Alito asked whether they would have to litigate the issue all over again if the president reissued executive orders under Section 338.
“And come back to us when? A year from now, six months from now, while the tariffs continue to be collected and the amount that’s at stake amounts into the billions?” he said, asking whether they should “address that now and get it over with.”
Thomas Asks Hypothetical on Hostage Taking by China
Justice Clarence Thomas posed a hypothetical question to Neal Katyal, attorney for the tariff challengers.
Thomas asked, if one of the United States’ major trading partners, such as China, held a U.S. citizen hostage, could the president say the most effective way to recover the hostage would be to levy a tariff?
Katyal said the law does not allow the president to do that.
In this case, the president is seeking “to set aside all our trade treaties” by pinning his authority to do so on the word “regulate” in the International Emergency Economic Powers Act (IEEPA), the lawyer said.
IEEPA doesn’t allow the “junking” of the “worldwide tariff architecture,” Katyal added.
Alito Asks Whether Revenue Raising Is Main Issue
Alito asked Katyal whether he was arguing that all tariffs are revenue-raising, using an example in which an agreement is reached with another country before tariffs go into effect and any duties are collected.
He also asked Katyal whether fees in general would be considered ways to raise revenue, using the example of adding a fee to regulate admission to a national park.
“This is obviously revenue-raising. Their own brief to the court says it’s going to raise $4 trillion,” Katyal said.
Katyal Says Congress Could Have Delegated Tariff Powers
Katyal, arguing for small businesses, said that Congress could have included the word “tariff” in the statute and that would have been constitutionally acceptable, meaning it was not a power too large to delegate.
“The question would then be: is [this] the open-ended assertion of power here?” he said.
Businesses Argue Law Does Not Give President Power to Raise Revenue
Attorney Neal Katyal, arguing for small businesses, said that the power to “regulate” imports involves the ability to embargo, investigate, block, and nullify.
Tariffs, on the other hand, “are first and foremost ways of regulating revenue,” Katyal argued.
“The one verb that’s missing here is anything about raising revenue whatsoever.”
Jackson Asks Hypothetical About Declaring Climate Emergency
Justice Ketanji Brown Jackson asked Solicitor General D. John Sauer what would happen if a president declared a climate emergency, identifying it as an “unusual and extraordinary threat.”
Sauer said a president would not be able to unilaterally impose tariffs in such a situation.
“That would be a question for Congress,” he said.
Barrett Asks Why So Many Countries Need to Be Tariffed Under National Security Threat
Justice Amy Coney Barrett questioned whether all countries subjected to tariffs need to be tariffed for national security reasons.
“These are kind of across the board, and so is it your contention that every country needed to be tariffed because of threats to the defense and industrial base? I mean, Spain, France?” she asked Sauer.
“I could see it with some countries, but explain to me why many countries needed to be subject to the reciprocal tariff policy.”
Sauer said Trump identified that “virtually every major trading partner” had unfair, asymmetric trading practices with the United States, and the effect is a vulnerable industrial base and supply chain. He said the emergency was broad, but the power in question was not.
Gorsuch Says Congress Might Be Unable to Take Back Delegated Powers
Gorsuch questioned Sauer’s argument that Congress may be unable to take back the powers granted by the International Emergency Economic Powers Act.
“As a practical matter in the real world, it can never get that power back,” he said. “The president is a one-way ratchet toward the gradual but continual accretion of power in the executive branch and away from the people’s elected representatives.”
Sauer argued Congress can revoke a national emergency—as it did with COVID-19—and Gorsuch said that it could be vetoed.
Sauer Shifts on Whether Courts Can Review Emergency Declarations
Solicitor General D. John Sauer initially took the position that a president’s emergency declarations are not subject to judicial review.
“Even if there’s limited judicial review—which is very natural in the foreign affairs context—this court has always granted the president the presumption that he’s acting in good faith,” he told the court.
That prompted Justice Neil Gorsuch to ask how far that legal theory could be pushed.
“I want you to explain to me how you draw the line,” he said, asking if Congress could give the president authority to do anything during an emergency, including declaring war or crafting legislation.
“We don’t contend that,’ Sauer replied.
“You do. You say it’s unreviewable. Now—tell me if I’m wrong—you’ve backed off that position.”
“Maybe that’s fair to say,” Sauer conceded.
“I’m delighted to hear that,” Gorsuch answered.
Kagan, Gorsuch See Delegation Issues
Both Justices Kagan and Gorsuch were skeptical that Congress could delegate such broad powers to the president.
“You say that we shouldn’t be so concerned in the area of foreign affairs because of the president’s inherent powers. That’s the gist of it, as I understand it, why we should disregard both major questions and non-delegation,” Gorsuch said.
“So could Congress delegate to the president the power to regulate commerce with foreign nations as he sees fit?”
Sauer said the government would not argue that, pointing to constraints in the International Emergency Economic Powers Act, such as declaring a national emergency and congressional oversight.
Sauer backtracked after Gorsuch said the government’s arguments suggest there is no limit to what Congress may delegate to the president when it relates to foreign affairs—which would also apply to a declaration of war.
Alito Questions Precedent Relied Upon by Government
Justice Samuel Alito questions whether the U.S. Customs Court’s prior ruling in Yoshida International Inc. v. United States applies in this case.
In Yoshida, that court held that language in the International Emergency Economic Powers Act (IEEPA) that President Donald Trump is now relying on, was interpreted to allow then-President Richard Nixon to “regulate importation” in IEEPA’s predecessor statute, the Trading with the Enemy Act.
Solicitor General D. John Sauer said that “delegations of the foreign commerce [power] to the president” have been upheld by the courts for many years.
Barrett Skeptical of Government’s Interpretation of Law
Justice Amy Coney Barrett seemed unsure of the administration’s authority to use emergency powers to impose tariffs.
She asked Solicitor General D. John Sauer if he could “point to any other place in the code, or any other time in history where that phrase, ‘to regulate importation’ has been used” to confer tariff-making authority.
Sauer said two instances came to mind: the Trading with the Enemy Act, used by President Richard Nixon in 1971 to deal with inflation, and again in the International Emergency Economic Powers Act.
Kagan Focuses on ‘Regulate’
Justice Elena Kagan said that Congress, not the president, has traditionally had the authority to tax and regulate foreign commerce.
Kagan questions whether the statute authorizing tariffs treats the word “regulate” as giving the government the power to tax.
“Is there any place you can find in the entire code … where ‘regulate’ includes taxing power?” she asked U.S. Solicitor General D. John Sauer.
Roberts Says Tariffs Generate Revenue Like Taxing Power
Chief Justice John Roberts said the administration has touted the revenue generated by tariffs, implying the use of powers to tax and raise revenue—a domain of Congress.
“It’s been suggested that the tariffs are responsible for [a] significant reduction in our deficit; I would say that’s raising revenue domestically,” Roberts said.
Sauer said the tariffs would be “by far the most effective if nobody ever pays the tariffs,” namely by purchasing domestic goods instead.
Roberts Says Major Questions Doctrine May Apply
Chief Justice John Roberts said the major questions doctrine—which requires Congress to specifically state authority when it applies to major issues—may apply in this case.
“It does seem like it’s ‘major’ authority,” Roberts said.
The emergency powers act in question does not specifically state “tariffs,” and the government is arguing that the power to invoke tariffs falls under the authority to regulate imports and exports. Sauer said the statute itself is the major authority delegated.
“The statute doesn’t use the word tariff,” Roberts said.
Sotomayor Questions Government Argument
Justice Sonia Sotomayor pushed back against Solicitor General D. John Sauer’s presentation. Sauer is arguing in favor of the tariffs.
“I just don’t understand this argument,” she said.
“You want to say tariffs aren’t taxes, but that’s exactly what they are.”
She also questioned whether the emergency that President Trump identified in order to levy the tariffs can “do away” with the major questions doctrine.
Under the major questions doctrine, the Supreme Court holds that agencies may take actions of major significance only when clearly authorized by Congress, such as by lawmakers approving a statute.
Government Argues ‘Major Questions Doctrine’ Doesn’t Apply
In response to a question from Justice Clarence Thomas, Solicitor General D. John Sauer told the Supreme Court that he didn’t expect the “major questions doctrine” to apply to the tariffs case.
That legal principle says that, when dealing with questions of “major national significance,” Congress retains its authority, unless it explicitly says otherwise.
Sauer said that, “as a matter of common sense,” Congress would give the president power to address “major foreign international crises.”
“Congress confers broad and magistrate powers in advance, and subjects them to ongoing political oversight, which is exactly what you see in the International Emergency Economic Powers Act,” he said.
Democratic Senator Says Case Is ‘Main Street Versus Mar-a-Lago’
Sen. Ed Markey (D-Mass.), ranking member of the Senate Small Business Committee, spoke outside the Supreme Court with a group of small business owners ahead of the hearing.
“This case is not enemies of the state versus Trump; it is small businesses versus Trump. It is Main Street versus Mar-a-Lago,” he said.
Markey said the case would affect the 36 million small businesses in the country.
The plaintiffs in one case are small businesses that import goods from China, Taiwan, Korea, Vietnam, Thailand, and India. The small businesses argued that the tariffs at one point raised expected expenditures for the year by $100 million.
What Is the International Emergency Economic Powers Act?
Trump imposed tariffs under the International Emergency Economic Powers Act, which allows him to declare a national emergency to address any “unusual and extraordinary threat” to the country’s national security, foreign policy, or economy.
The law was enacted in 1977 and gives the president broad powers to deal with declared emergencies, including the power to regulate imports.
Presidents normally have used the law to impose sanctions on other countries, but Trump was the first to use it for tariffs. However, President Richard Nixon used an identical provision in a predecessor law, the Trading with the Enemy Act, in 1971 to declare a trade emergency and issue 10 percent tariffs on all imports.
What to Know About the Case
The Supreme Court will today hear oral argument over whether a set of President Donald Trump’s tariffs violates a law known as the International Emergency Economic Powers Act. The law allows presidents to take a variety of actions, including regulating the nation’s imports, during times of emergency.
Trump invoked the law earlier this year to impose reciprocal tariffs on dozens of countries and fentanyl tariffs on Canada, Mexico, and China.
Multiple federal courts have ruled that the law did not authorize Trump to impose the tariffs. Some judges noted that the law does not specifically include the word tariffs.
In looking at those decisions, the Supreme Court is expected to consider whether the law authorizes tariffs at all, and Trump’s sweeping set of tariffs in particular.
Whatever the court decides, it could impact trillions of dollars in foreign investment and sensitive negotiations with foreign countries.
The Constitution grants the power to impose tariffs to Congress. So the court’s decision could also impact the nation’s separation of powers as the court weighs whether Congress—if it did in fact authorize Trump’s actions—violated the Constitution by delegating its authority to impose tariffs.
By Sam Dorman
Supreme Court to Decide on Trump’s Tariffs: 6 Things to Know
The Supreme Court is set to hear oral arguments on Nov. 5 in a landmark case over the legality of President Donald Trump’s global tariffs.
More specifically, the justices are expected to hear two cases—Learning Resources, Inc. v. Trump, and Trump v. V.O.S. Selections, Inc.—for at least 80 minutes with input from various parties. According to the court, oral arguments will include 40 minutes from the Trump administration and 20 minutes each for both the private businesses and states challenging Trump’s policy.
Whatever the ruling, the case could have major implications for the nation’s economy and determine how much future presidents can alter trade. Here’s what you need to know heading into oral arguments.
1. What Are the Cases About?
The cases center on two groups of tariffs that the Trump administration imposed earlier this year. One group targeted Mexico, Canada, and China over their alleged failure to address fentanyl trafficking, and the other set included a lengthy list of reciprocal tariffs on countries worldwide.
By Sam Dorman
