The Supreme Court‘s Wednesday oral arguments over the legality of Donald Trump‘s sweeping “Liberation Day” tariffs pitted the president’s constitutional foreign affairs powers against Congress’s constitutionally delegated tariff power.
The justices appeared highly skeptical of Solicitor General D. John Sauer’s arguments that the president’s sweeping tariffs under the International Emergency Economic Powers Act are lawful. Chief Justice John Roberts questioned how Sauer’s claim that the president’s broad leeway with foreign affairs power squares with Congress’s explicit power to tax and tariff in the Constitution.
Roberts acknowledged broad powers for the president “in dealings with foreign powers” but questioned the claim in the context of the tariffs, which he said is the “imposition of taxes on Americans,” which “has always been the core power of Congress.”
“So to have the president’s foreign affairs power trump that basic power for Congress seems to me to kind of at least neutralize between the two powers, the executive power and the legislative power,” Roberts said.
Sauer responded by claiming the tariffs are not “taxes all born by Americans” rather than foreign manufacturers, but instead a mix, after which Roberts asked squarely who pays for the tariffs.
Justice Sonia Sotomayor was also unconvinced by the solicitor general’s arguments, pointing to the Constitution’s delegation of taxing power to Congress, despite Sauer claiming that tariffs are not a tax.
“I just don’t understand this argument,” Sotomayor said. “It’s not an article, 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. They’re generating money from American citizens: revenue.”
Justice Neil Gorsuch asked Sauer a hypothetical question about whether it would be legal for a future president to declare a climate emergency and attempt to impose a 50% tariff on “gas-powered cars and auto parts” under IEEPA based on the administration’s theory. Sauer responded that it “would be a question for Congress under our interpretation, not for the courts.”
New Civil Liberties Alliance president Mark Chenoweth told reporters after the hearing that the hypothetical showed why it is unlikely the Trump administration will get a majority of the justices to side with it.
“You have to realize that if you rule for the government here, you’re opening IEEPA up to a future climate change emergency. And I just, I don’t think there’s going to be five votes among the conservative justices for that proposition,” Chenoweth said.
The solicitor general also faced a grilling from multiple justices over the assertion that the statute’s provision allowing the president to regulate the importation of foreign goods includes tariff powers, despite not explicitly mentioning it. Justice Amy Coney Barrett asked Sauer what other laws exist with language that grant a tariff power. Sauer was only able to directly point to the Trading with Enemies Act.
The justices also questioned the companies and states that have sued the Trump administration over the tariffs. Roberts asked Neal Katyal, a lawyer for the companies, whether, while that taxing power is a core congressional power, the president’s foreign affairs powers would also come into play with tariffs because they are inherently foreign-facing.
“We don’t disagree with a large part of that. We think instead of thinking about foreign versus domestic, the better way of thinking about it is Article I versus Article II,” Katyal said, noting that the president is given no tariff power under the Constitution.
TRUMP MAY FINALLY GET SOME LOSSES AS SUPREME COURT TURNS TO MERITS DOCKET
In the courtroom for the high-profile hearing at the Supreme Court were Treasury Secretary Scott Bessent and Commerce Secretary Howard Lutnick, along with Sens. Mike Lee (R-UT), Amy Klobuchar (D-MN), Ed Markey (D-MA), and comedian John Mulaney.
The Supreme Court is expected to release a decision in the tariffs case in the coming months, a ruling that could have sweeping implications for Trump’s signature trade policy and presidential power.
